Legal basis for denying claimants rights to appeal

The request was partially successful.

Dear Department for Work and Pensions,

Following the judgment of the Court of Appeal in the Wilson/Reilly case the Minister of State, Department for Work and Pensions (Mr Mark Hoban) provided a Written Ministerial Statement to the House on 12.2.13 stating:

"As we are currently seeking permission to appeal, claimants who have already served a sanction will not be able to appeal on the basis of the court's decision until our appeal is heard. We are considering a range of options to ensure we do not have to repay these sanctions"

The DWP has also issued guidance to JobCentre staff (02063 DWP/43) stating "Will a claimant be able to appeal an existing sanction?" To which you have responded using the same wording from the Ministerial Statement.

It is my understanding that claimants served with a sanction do have a right of appeal under Section 12 of the Social Security Act 1998 and that the Secretary of State has the power to stay an appeal under Section 26 if he is going to lodge an appeal to the Supreme Court. The statements put out by the DWP give the impression that claimants do not have the right to make an appeal at all and this is the advice you are giving to Departmental staff.

Question 1
Can you direct me to the legislative provisions that give the Secretary of State the power to deny a claimant the right to appeal a sanction (in this case imposed unlawfully as determined by the Court of Appeal)?

Question 2
If there is no legal basis for denying claimants rights to appeal what steps will you be taking to correct the misleading statements given to Parliament and to Departmental staff?

Yours faithfully,

Ray Playforth

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Ray Playforth left an annotation ()

The Child Poverty Action Group (CPAG)have also raised concerns about the legality of the advice given to Jobcentres in dealing with claimants requesting to make an appeal against sanctions imposed under the unlawful regulations governing work employment schemes.
CPAG's solicitor has written to DWP requesting that the advice be corrected. For background information, a copy of the letter and the internal guidance to DWP staff check out the news section of the CPAG website:
www.cpag.org.uk

Jim Otram left an annotation ()

That strikes me as an extremely important and precise point.

Best of luck with this, RP, and thank you for the info.

Definitely one to 'follow'.

DWP Strategy Freedom of Information, Department for Work and Pensions

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Dear Ray Playforth,

Thank you for your Freedom of Information request; please see the attached acknowledgement.
If you have any queries about this letter please contact me quoting the reference number above.
Yours sincerely,

DWP Central FoI Team
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If you are not happy with this response you may request an internal review by e-mailing [DWP request email] or by writing to DWP, Central FoI Team, Caxton House, Tothill Street, SW1H 9NA. Any review request should be submitted within two months of the date of this letter.

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Ray Playforth left an annotation ()

Typical delaying tactics being used here to avoid responding to a straightforward request for information. However CPAG have had a response to their solicitor's letter and posted the following statement on their website www.cpag.org.uk on 5 March 2013.

"The DWP has responded to our letter. They advise that the document which was issued on 12 February 2013 was an internal news article to DWP staff on the impact of the Court of Appeal judgment in Reilly and Wilson v DWP and that it is not guidance that would be relied upon by DWP staff when advising claimants of their appeal rights.
The letter goes on to confirm that the document issued on 12 Feb 2013 has now been overtaken by internal communications and formal guidance issued to DWP staff which correctly states that claimants can appeal their sanction decision following the Court of Appeal judgment but that their appeal may be delayed pending any application for leave to appeal to the Supreme Court that DWP may choose to make and, if successful, any subsequent appeal"

Hoban's statement "We are considering a range of options to ensure we do not have to repay these sanctions" has exposed that if this is one of the options it has failed because it demonstrates that the Secretary of State and DWP is still trying to operate outside of its legal powers.
I wait to here what steps the Minister of State will take to correct his misleading statement given to Parliament.

DWP Strategy Freedom of Information, Department for Work and Pensions

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Dear Ray Playforth

Please see the attached response to your Freedom of Information request.

Many thanks,

DWP Central FoI Team
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B. Adams left an annotation ()

You may have spotted it....there is an emergency Bill going through the Commons.. I think “stuffed” is the word...
The explanatory notes state:
“The impact upon individuals is that JSA claimants who have not complied with requirements under the ESE Regulations will not be repaid sanctioned benefits as they might expect following the judgment or may have a sanction imposed. The Bill effectively restores the status quo to a situation before the High Court and Court of Appeal judgments. Once the Bill is enacted, claimants who might have appealed against previous sanction decisions on the grounds upheld by the Judicial Review will be unable to do so. Sanctions imposed under the…legislation can continue and sanctions decisions currently stayed can be made in accordance with the original intent of the legislation.
Tuesdays (March 19th) debate... The Government have introduced emergency legislation to prevent those people from getting only what the Court of Appeal says they deserve and depriving the most vulnerable people who have been on workfare.
http://www.publications.parliament.uk/pa...

Dear Department for Work and Pensions,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Department for Work and Pensions's handling of my FOI request 'Legal basis for denying claimants rights to appeal'.

The response I have received to my FOI request 'Legal basis for denying claimants rights to appeal' does not address the issue at all which is about DENYING claimants their legal rights to appeal. Instead you have provided information about powers to delay appeals and stay decisions, a completely different set of circumstances.

For your clarification and to aid a proper response the Minister said "As we are currently seeking permission to appeal, claimants who have already served a sanction WILL NOT BE ABLE TO APPEAL on the basis of the court's decision until our appeal is heard". This statement is repeated in the circular (02063 DWP/43)circulated to all JCP staff under the heading "WILL A CLAIMANT BE ABLE TO APPEAL AN EXISTING SANCTION?" If JCP staff follow this "guidance" they will be telling claimants they cannot appeal hence my question 1 as I do not think there are any legislative provisions in social security legislation that give the SOS or the Department such power.

I have become aware since this FOI that CPAG's solicitor has written to the Department's solicitor about this precise point and as a result formal guidance has been issued that states claimants can request an appeal of their sanction decision which has been confirmed in the response to question 2. This implies that there is no legal basis to question 1 and I would like you to respond appropriately to the question.

In light of the above please can you justify your response to question 2 that the Minister did not mislead the House although given the 'extraordinary' (being very polite here) events surrounding the introduction of the Jobseekers (Back to Works Schemes)Bill to Parliament and circumstances surrounding the DWP's appeal to the Supreme Court I am not anticipating the Minister will do the honourable thing.

In conclusion please respond correctly and actually answer the questions I asked.

A full history of my FOI request and all correspondence is available on the Internet at this address:
http://www.whatdotheyknow.com/request/le...

Yours faithfully,

Ray Playforth

DWP freedom-of-information-requests, Department for Work and Pensions

This is an automated confirmation that your request for information has
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expect a response within 20 working days.

Should you have any further queries in connection with this request do
please contact us.

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please click on the link below.

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DWP Strategy Freedom of Information, Department for Work and Pensions

1 Attachment

Dear Ray Playforth,

Thank you for your Freedom of Information request; please see the attached acknowledgement.
If you have any queries about this letter please contact me quoting the reference number above.
Yours sincerely,

DWP Central FoI Team
------------------------------------------------------------------------------------------------------

Your right to complain under the Freedom of Information Act

If you are not happy with this response you may request an internal review by e-mailing [DWP request email] or by writing to DWP, Central FoI Team, Caxton House, Tothill Street, SW1H 9NA. Any review request should be submitted within two months of the date of this letter.

If you are not content with the outcome of the internal review you may apply directly to the Information Commissioner’s Office for a decision. Generally the Commissioner cannot make a decision unless you have exhausted our own complaints procedure. The Information Commissioner can be contacted at: The Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow Cheshire SK9 5AF www.ico.gov.uk

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DWP Strategy Freedom of Information, Department for Work and Pensions

1 Attachment

Please see the attached reply to your Freedom of Information request

 

Yours sincerely

 

DWP Central FoI team

 

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Ray Playforth left an annotation ()

The IR response I've just had defies logic and contradicts the information given to CPAG (see my previous annotation. The response says:
"There was never any denial of the claimants' rights of appeal in this matter. In our view it was clear from the wording used in the ministerial statement and guidance you quote from that the right of appeal could not be exercised until the appeal in the case of "Reilly and Wilson" is heard"
It begs the question how can you exercise a right of appeal if as worded in the statement you "will not be able to appeal..."
It brings to mind Humpty Dumpty's saying in Lewis Carroll's Through the Looking Glass "When I choose a word" Humpty Dumpty says in a rather scornful tone, "it means just what I choose it to mean - neither more nor less"
Hats off to CPAG for getting the "correct" response from them and ensuring that claimants are not denied their legal rights. The Jobseekers (Back to Work Schemes)Act has not changed claimants' rights to appeal. Will be interesting to know if DWP have withdrawn pending Supreme Court appeal, or if leave to appeal is granted whether they will continue with appeal as they have achieved the aim of not paying sanctions via this disgraceful Act.

J Roberts left an annotation ()

Ray,

This is very much the language of Humpty Dumpty, as you say.

The expression "to appeal" is interpreted by the DWP to mean "to have their appeal heard". Plain nonsense.

For anyone interested in Humpty Dumpty stuff from the courts I would recommend para 39 of the following recent decision of the Upper Tribunal which refers to a judgment by Lord Upjohn from 1969:

"It is highly dangerous, if not impossible, to attempt to place an accurate definition upon a word in common use; you can look up examples of its many uses if you want to in the Oxford Dictionary but that does not help on definition; in fact it it probably only shows that the word defies definition."

The word the Upper Tribunal was considering the meaning of was "amend".

http://www.osscsc.gov.uk/Aspx/view.aspx?...

J Wilson left an annotation ()

Well I don't have enough time to understand all these arguments, but it seem like another example of how the UK Governments since 1945, have been lying about their commitment to Human Rights.

In Dec 1948, the UN issued the Universal Declaration of Human Rights as the first step in The International Bill of Rights, which later included 2 Covenants on Civil and Political Rights, and Economic, Social & Cultural Rights. None of which have been fully complied with by the UK since the became legally binding on it from August 1976.

Social security and the right to choose your own job was part of that, whereas the Government seeks to force people to work for nothing and indeed supports the idea of 'Interns' working for large companies at their own expense. That's not right, let alone fair and reasonable.

If yo want something done about this please support this petition at http://you.38degrees.org.uk/p/bill-of-ri... to see what the Supreme Court has to say for itself.