I have a client who is profoundly deaf and without speech who failed to attend a PCA. The Medical Service telephoned his home and left a message with his father to inform my client of an appointment and concluded by saying that a letter would be forwarded to confirm the appointment.The client never recieved such a letter and forgot what his father had informed him. He then received a letter stating his Incap had ceased due to failing to attend a medical etc. He reported in his appeal letter that he had not received the letter and forgot what his father had informed him of but the DM stated that this was not good cause. It is questionable how the examining Doctor would have been able to question or perform the test with the client regarding the descriptors etc given that he is a BSL user. Any ideas

Section 7 of The Interpretation Act 1978 is in the following terms: -

“Where an Act authorises or requires any document to be served by post (whether the expression “serve” or the expression “give” or “send” or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post”.

So as he denies receiving it then The DWP needs to be asked to provide evidence of a record that the letter was sent. If it cannot then the claimant should win his appeal. If the DWP can, then service is deemed to be effective and the onus is then on the claimant to provide a good argument as to why he did not receive it. It is then a question of whether the tribunal believes him or not.

However, even if the tribunal disbelieves him on this point then he may still prove good cause on other grounds, i.e. communication problems, etc.
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Make sure that the appointment letter (AL1) gave him 7 days clear notice of the appointment.

Your client clearly did not consent to less than 7 days (how could he, they spoke to his father) and so did not waive his right to notice.

Also it is 7 days 'notice' therefore the DWP not only has to show a letter was sent, as the post above says, but that it was sent early enough for the client to have received it 7 days before the examination. There's a commissioner's decision somewhere about that and I'll try to find it.

David

Have a look at CIB/4012/2004 on the date issue and definitely have a look at CSIB/721/2004 (in particular para 13) where Comm Parker finds that if a tribunal is persuded that the appellant did not receive the letter then he does not need to show good cause as notice has not been served.

Both decisions on the OSSC website

David

Thanks for that I have been looking at Sect 7 but the only concern I have is within the bundle there is a document from Medical Servces showing "Appointment History" & "Letter History" under header Letter History it gives letter type, date sent and address and so it will just be a matter of my clients word against the JC+/DWP.
I am drafting a submission relating to the above fact as well as his lack of ability to communicate without BSL, his reading skills are very poor as a result of him being profoundly deaf and also his mental health issues (Anxiety & Depression) So he would have problems understanding an appointment without the assistance of another person to translate to BSL.

The decision referred to by David of 7 clear days notice isCIB/2576/2007.

Did the DWP know your client was profoundly deaf? If so, why in the wide wide world of sports were they being called to a medical?

Last time I checked not being able to hear a loud voice in a quiet room gave 15 points. Is there no scrutiny system any more?

Not that it matters to whether good cause is established but it might get a tribunal to view your case with a bit more sympathy.

David