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PIP and ESA appeal winners to face further legal threat

Beginning next year, many hundreds of claimants who win their PIP and ESA appeals will face having to win a further legal challenge before they can be awarded benefit. The DWP has this week begun recruiting 86 presenting officers whose job will include identifying cases that can be appealed to the upper tribunal.

Job adverts
Earlier this year the DWP was awarded £22 million “to recruit presenting officers across 2016-17 to 2017-18 to support the department in personal independent payments and employment and support allowance tribunals.”

Job adverts for 86 posts across the country have now appeared on many jobsearch sites, with indeed.co.uk listing DWP Appeals Presenting Officer vacancies at 20 different locations. Interviews begin at the end of November.

The job advert states that:

“It is desirable but not essential that you are a qualified Paralegal or have a law degree.”

Successful applicants with no legal qualification and fewer than two A-levels will be required to undertake an apprenticeship.

Alarmingly, the job advert goes on to add that:

“Knowledge and experience of social security legislation is preferable but not essential, as training will be provided.”

So, it is entirely possible that many of the recruits to the post, which pays between £23,310 - £25,646 will have neither legal knowledge nor benefits knowledge.

Inquisitorial questioning
Yet the new recruits will be responsible for, amongst other things:

  • reviewing each case before it goes to hearing to decide if the decision can be defended;
  • presenting the DWP’s case at the hearing;
  • questioning the claimant’s case at a hearing by asking inquisitorial questions;
  • requesting a Statement of Reasons on appeal outcomes where a decision is given against the Department and it is considered there may be an error in law.

A Statement of Reasons is essentially a record of what the tribunal found and how they reached their decision. Requesting a Statement does not commit you to lodging an appeal, but is a step which must be taken before either party can apply to the upper tribunal.

The possibility that more bad decisions may be overturned by presenting officers before a hearing is a positive aspect of the new appointments.

But few claimants will relish facing ‘inquisitorial’ questioning from the DWP, even though the Tribunals Service has announced that it will be switching to papers only and Skype hearings in the future, as far as possible.

More months of misery
However, it is the probability of many more decisions being challenged at the upper tribunal by the DWP that is likely to add most to the burden of claimants.

Presenting officers will be required to “Prioritise and proactively progress cases as directed to ensure key performance indicators and attendance levels are met.”

One key performance indicator is likely to be a minimum number of statements of reasons that each presenting officer will be expected to request each month and a minimum number of cases that they recommend should be taken to the upper tribunal. (It is likely that the actual appeal to the upper tribunal will be handled by a separate team at the DWP).

If each presenting officer successfully recommends on average just one appeal each month for a further appeal, then that is over 1,000 more PIP and ESA claimants a year being put through many more months of misery following a hugely stressful first tier tribunal.

Clearly, there is nothing we can do at Benefits and Work to prevent this happening. But we are now starting work on a guide to defending your award at the upper tribunal. At the very least this will ensure that our members have a clear guide through the procedure that they are forced to take part in and a better chance of success as a result.

Comments  

+2 #4 Annis 2016-10-29 20:28
Just for the hell of it, I am going to apply. They say I'm fit for work, so let them put their money where their mouth is. I don't have a legal background, but I have a degree and a civil service background!
+1 #3 sully32 2016-10-26 20:00
I'm confused I thought you could only go to the upper tribunal if you loose your appeal but there has been an error in law :sad:
+3 #2 Crazydiamond 2016-10-26 19:25
The purpose of DWP presenting officers is essentially an amicus curae (a friend of the court). What this means is that POs are not there to defend the Department’s decisions at all costs, but conversely perhaps to give support to the position of the appellant.

It has always been the POs prerogative to refer appeals to the Upper Tribunal for the reasons under the circumstances as listed above, but the problem that may arise by using inexperienced, untrained POs is the fact that they may resort to vexatious tactics in order to try and progress a case to the Upper Tribunal. However, an appeal can only be made on a point of law, and a competent First-tier Tribunal judge should be able to readily identify whether there is a potential error of law? If the FtT does not grant permission to appeal and the DWP escalate the case to the Upper Tribunal in order to seek permission to appeal, the UT usually deal with this process expediently and the hopeless cases will be weeded out at this stage.

The upshot is that if the DWP choose to refer appeals to the Upper Tribunal which is purely to cause annoyance/worry to the appellant, it should be borne in mind that it costs the Department a considerable sum of money (for claimants/appel lants it is free) to pursue an appeal, and therefore they have to be sure that they have a reasonable chance of success, and furthermore, they must clear the first hurdle in having permission to appeal granted. Therefore, it may not always be a case of doom and gloom for the appellant following the First-tier Tribunal hearing.
+4 #1 Elisa 2016-10-26 07:21
Jobs for those they want to slim down from other departments to show a reduction in staffing. Tax payer pays. Disabled people pay. I wonder what the tribunal judges think about having the legal taken out of legal.

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