ESA assessments: challenging refusal and clarifying the legal position
Law Centre (NI) successfully challenged at Social Security Commissioners a Tribunal Decision to refuse Employment and Support Allowance.
We advised in a case that clarified the meaning of 'understanding verbal and non verbal communication' in the work capability assessment. The lady had been referred to the Law Centre by Belfast Citywide Tribunal Service because she had significant difficulties which they felt should be sufficient to qualify for the benefit.
We argued that the medical HCP report had inaccurately recorded the time the appellant was able to sit, and she should therefore be awarded points under ESA descriptor 2(c) (sitting for at least an hour without significant discomfort). The Commissioner agreed and sent the case back to a new tribunal.
We also pointed out that, as our client had serious difficulties with hearing, the tribunal had been wrong in deciding that she should not qualify under ESA Activity 7 (the ability to understand messages). The fact that she could understand written messages was not a sufficient reason to refuse her on those grounds. The Commissioner and the Department both agreed with us on this point.
How we use the Human Rights Act: Direct Payments to care for father
Law Centre (NI) resolved a delay in setting up direct payments for a man with complex physical needs to receive care from his son.
The case had been referred to our community care team by the Centre for Independent Living because the son had been providing a considerable level of care without receiving any salary for several months. This was in spite of the Trust having already determined that our client was eligible for the Direct Payment Scheme to employ a personal assistant.
We contacted the Trust, citing the relevant healthcare legislation and the Human Rights Act, and direct payments were set up immediately. The Trust also increased the level of payment awarded and provided back-payment.
Health and Personal Social Services (NI) Order 1972
Carers and Direct Payments Act (NI) 2002
Chronically Sick and Disabled Persons (NI) Act 1978
Human Rights Act 1998 - Article 8, Right to a Private and Family Life
Spreading the news on benefit changes
Welfare reform is gathering pace in Northern Ireland, in particular with imminent changes to the way decisions can be appealed and the beginning of transfer from DLA to Personal Independence Payment.
Department for Communities starts awareness campaign on benefit changes
The new Department for Communities (DfC) came into effect on 9 May.
The functions of the new department include:
- the roles and responsibilities of the former Department for Social Development (DSD).
- Employment Service and Economic Inactivity Strategy from the former Department of Employment and Learning (DEL)
- debt advice and financial capability strategy from the former Department of Enterprise, Trade and Investment (DETI);
- local government from the former Department of the Environment (DOE), including Built Heritage from the Northern Ireland Environment Agency (NIEA);
- the existing functions of the former Department of Culture, Arts and Leisure (DCAL), excluding inland fisheries & waterways.
A number of functions were also transferred from the Office of the First Minister and deputy First Minister (OFMDFM).
The Department has started an information campaign on benefit changes, including information posted on www.nidirect.gov.uk/welfarechanges
GB tribunal says past presence test for DLA discriminates against refugees
The Upper Tribunal (UT) in GB has found that the “past presence test” for Disability Living Allowance unlawfully discriminates against refugees and their families. The test requires a claimant to have been resident in GB for 104 weeks in the 156 week period before the claim is made. The UT disapplied it and found that the claimants in that case satisfied the presence and residence requirements.
This residence requirement also applies to Attendance Allowance, Personal Independence Payment (PIP) and Carer’s Allowance.
The same test applies for DLA in NI but the required period of residence is shorter (26 weeks in the last 52 as compared to the GB requirement of 104 weeks in the last 156) but this will change once PIP is introduced on 20 June.
It is not yet known whether the Secretary of State will appeal this decision. However, if the decision stands then it should apply equally to refugees in Northern Ireland.
Any refugees or their family members who are refused DLA due to the residence requirements should contact the Law Centre immediately for advice.
Watch: our ideas for MLAs to improve social justice
Ursula O'Hare explains 6 key actions Law Centre (NI) would like the Assembly to take to make social justice BETTER in Northern Ireland (starts at 12 mins 26 secs)
Welfare reform information session
Coiste na nIarchimí & Tar Isteach are holding an information public meeting in St Mary's College, Belfast on Tuesday 26 april, 7pm to 9pm.
Our social security legal adviser, Jacqui Loughrey, will give an outline of the welfare reform timeline and mitigations package.
The biggest change to the welfare system for 60 years is about to happen. Thousands of individuals and households will be impacted - affecting all working age claimants aged 16 to 65.
The meeting will provide information on:
- The replacement of DLA with PIP
- The time limiting of contribution based Employment & Support Allowance
- The reform of the Social Fund to include Community Care Grants
- Discussion on the proposed Mitigation Package and Transitional Protection
6 ways Stormont could make things BETTER in the next Assembly
With the NI Assembly 2016 elections fast approaching and the prospect of a new Programme for Government, Law Centre (NI) has identified six ‘BETTER’ key actions that would contribute to social justice in Northern Ireland:
Benefits: ensure all social security claimants have access to free medical evidence when challenging a decision to refuse benefits
Employment: regulate zero hour contracts
Trafficking: implement Independent Guardianship for separated children in the immigration system
Tribunals: ensure support is available for those who need help before a tribunal
Ensure timely access to mental health tribunals for people with impaired decision-making capacity
Respite services: make appropriate respite units available for carers
MLAs are welcome to contact Law Centre (NI) for more information on the ‘BETTER’ key actions, for briefings on policy issues and for support in their constituency advice work.
New NI Public Services Ombudsman given extended powers
Marie Anderson pictured in 2014 at the launch of NI Ombudsman’s report on administrative justice, with Brian Thompson, University of Liverpool School of Law, and Ursula O’Hare, Law Centre (NI)
Marie Anderson has been appointed as the first Northern Ireland Public Services Ombudsman (NIPSO).
The Office of the NIPSO has been created by the Ombudsman (NI) Act 2016, a new piece of Assembly legislation aimed at making it easier for the public to complain about public services and at increasing the public accountability of public service providers.
The Ombudsman independently investigates complaints about a wide range of bodies spanning the health, housing, local government and education sectors.
In addition, the public can also complain to the Ombudsman about the actions of the Northern Ireland Audit Office and the Northern Ireland Assembly Commission.
Minister launches leaflet to help people escape forced labour
DEL Minister Dr Stephen Farry has launched Law Centre (NI)'s Problems at Work? leaflet.
Public meeting - welfare reform update
The biggest change in the welfare system for 60 years is about to happen, affecting all claimants aged 16 to 65.
Tar Isteach is holding public meetings throughout the greater Belfast area to provide the most up to date information to community activists and the general public on the proposed time line for welfare reform changes and to discuss the mitigations package.
The first meeting will take place on 7 April, 7pm - 9pm, in the Duncairn Centre for Culture and Arts, Duncairn Ave. Antrim Rd. Belfast, BT14 6BP.
Other meetings are planned for the east and west of the city, details to follow.
Speakers will be: Thomas Quigley, Kathy Stanton and Agnes Fraser from Tar Isteach and Lee Hatton, social security legal adviser at Law Centre (NI).
The meeting will discuss:
- the replacement of DLA with PIP
- the time limiting of contribution based ESA
- the reform of social fund to include community care grants
- the proposed mitigation package and transitional protection
Help us help people: donate to Law Centre (NI)
Advisers to talk welfare reform at the Law Centre
This free event will cover the timeline for welfare reform and NI mitigations scheme.
Northern Ireland mitigations for benefit cap and Contributory ESA
On 18 March, the regulations introducing 'welfare supplementary payments' to help mitigate the effects of the benefit cap and of new time limits for contributory ESA. The regulations come into force on 31 May.
They describe the maximum amount and duration of 'welfare supplementary payment' to be made where a person’s housing benefit is capped after 31 May 2016.
They also detail the conditions for entitlement to a payment if contributory ESA finishes because the new 365 days tiem limit for those in the work-related activity group.
The Welfare Supplementary Payments (Northern Ireland) 2016 can be found here: SR. No. 178/2016
RIP Mahfouz Baleed
The staff and management of Law Centre (NI) were very sad to hear of the death of Mr Baleed last week, and wish to express our condolences to his wife and children.
The family had been Law Centre clients, having fled the war in Syria and settled in Northern Ireland. They had kindly agreed to let us tell their story as an example of our work and to help other people who may find themselves in similar circumstances.
Friends of the family have set up a fund to cover the costs of the funeral and to help Mrs Baleed and the children:
Minister Ford announces new protections for victims of modern slavery
Last Thursday, 24 March, Law Centre staff joined into an anti-trafficking awareness raising fun run and workshop at Stormont organised by 'In the Long Run' and the NI Department of Justice.
We were delighted that DoJ Minister David Ford MLA took the opportunity to announce new measures by his Department to protect all victims of modern slavery, including those who may not have been trafficked but are in situations of forced labour or exploitation.
We had been advocating for these and other related measures through our involvement with the DoJ's NGO Engagement Group on Trafficking and in our policy comments and briefings*.
NIJAC seeks to appoint two district judges
NIJAC is inviting applications for the office of District Judge (Magistrates’ Courts).
It is intended to make up to two appointments and to maintain a reserve list for 12 months from the date of the first appointment. Flexible working may be considered for the appointments arising in this scheme.
To be eligible for appointment, a person must be by 30 September 2016:
• a member of the Bar of Northern Ireland of at least 7 years’ standing;
• a solicitor of the Court of Judicature of Northern Ireland of at least 7 years’ standing.
Salary: £104,060 per annum. This post is pensionable.
Closing date: 12 noon on Tuesday 3 May 2016. For full details and to apply online, visit www.nijac.gov.uk or phone 028 9056 9103
Securing benefit entitlement for asbestosis sufferer
Law Centre (NI) successfully appealed an Industrial Injuries Disablement Benefit case for a client who suffered from asbestosis as a result of repeated exposure to asbestos during his working life.
The client received £1,054 in arrears and is now entitled to an additional weekly payment of £16.80 until his case is reassessed in January 2018.
The Law Centre adviser also suggested that the client take legal advice from a private practice solicitor as he may be entitled to compensation from his previous employers.
His illness came under the category of ‘prescribed disease PD1’ for Industrial Injuries Disablement Benefit. The general rule is that, to be entitled to the benefit, a person must have either suffered personal injury as a result of an industrial accident, or have contracted a prescribed disease resulting in a disablement percentage of at least 14%. However, in the case of PD1, it is sufficient that the person has been assessed as having a resulting disablement of 1%.
On receipt of medical evidence from his consultant, a Decision Maker accepted that he suffered from PD1 and referred him for medical assessment to determine the extent of his resulting disablement. However, the Department’s medical adviser expressed the opinion that he was not suffering from prescribed disease PD1. The claim was therefore disallowed.
At this stage, he appealed to a Medical Appeal Tribunal and his trade union referred him to the Law Centre for specialist advice.
A Law Centre (NI) social security legal adviser represented him at the oral hearing where, despite other medical conditions which may have contributed to the severe symptoms he experienced, the Tribunal made a provisional decision that his disablement resulting from PD1 should be assessed at 5% for two years.
Advisers are welcome to refer similar cases and other social security cases involving complex issues. Law Centre (NI)’s advice line is open Monday to Friday, 9.30am to 1pm: 028 9024 4401
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