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Failure to return ESA 50 on time
My client did not get an ESA50, but got a reminder 4 days before it was due back. He rang and another was sent out, but arrived after the due back date. He sent it anyway. He had his ESA suspended. The decision maker said that they had made 2 phone callls and not got an answer. They said that was all they were required to do, and so suspended payment.
He made a new claim and is now getting ESA, but is still missing that 2 weeks gap. We have a Tribunal date now, but I don’t know on what grounds he can appeal, as it is his word against theirs. He never got any phone calls, or missed calls on his mobile.
Please advise if anyone knows how to appeal this?
Thanks
Mary
The fact he rang them up and told them, and the fact he returned the 2nd ESA50 when he got it suggests that it would be hard for the DWP to say he didnt return the form with good cause,
It may be his word against theirs, but it works both ways!
I dont think the DMs action would be considered reasonable by tribunal in my opinion.
Opinions?
I am just wondering what the tribunal is for my concern is that tribunals will not as a rule determine this (benefit stopping when client ‘failed’ to do something)
Is the tribunal actually about the ‘new claim’
Regarding the proof if appropriate I have had clients produce copies of their telephone records to prove a call had been made, difficulty is of course it doesnt prove the content of the call also a proof of posting of the paperwork going back , unless DWP are saying the form never arrived
There is no requirement in law for a claimants evidence to be corroberated:See R(SB)33/85: http://www.rightsnet.org.uk/pdfs/rsb/33_85.pdf
That doesn’t mean that the client will be believed. It is open to the tribunal to decide that the client is not a reliable or credible witness.
The burden of proof is on DWP to prove that grounds exist to supersede the award of ESA
The minimum proof from DWP I would expect is that there should be evidence of the first ESA50 being issued - usually a screen print.
If there is no proof of the ESA50 being issued then on balance the tribunal should accept the word of the claimant.
If there is proof that the ESA50 was issued then is there proof as to when it was actually posted to the client.
If they can prove that it was posted then there is a ‘presumption’ that it will have been delivered to the client, so unless they can prove some problem with the post they would be struggling to win (though the tribunal can still believe them)
Apparently 400,000 letters go missing every week by Royal mail
Can this not be taken into account ?
Statistically a few ESA50s must be in there somwhere
I am just wondering what the tribunal is for my concern is that tribunals will not as a rule determine this (benefit stopping when client ‘failed’ to do something)
Is the tribunal actually about the ‘new claim’
Regarding the proof if appropriate I have had clients produce copies of their telephone records to prove a call had been made, difficulty is of course it doesnt prove the content of the call also a proof of posting of the paperwork going back , unless DWP are saying the form never arrived
The Tribunal is about the old claim which was superceded due to failure to return ESA50 within the time limit. They have not said that they did not get it at all, albeit late. The clients mobile is ‘pay as you go’ so he will struggle to get records, and he can show his phone at the Tribunal, but that is no proof that he did not get any calls. Missed calls can be deleted from the mobile.
There is no requirement in law for a claimants evidence to be corroberated:See R(SB)33/85: http://www.rightsnet.org.uk/pdfs/rsb/33_85.pdf
That doesn’t mean that the client will be believed. It is open to the tribunal to decide that the client is not a reliable or credible witness.
The burden of proof is on DWP to prove that grounds exist to supersede the award of ESA
The minimum proof from DWP I would expect is that there should be evidence of the first ESA50 being issued - usually a screen print.
If there is no proof of the ESA50 being issued then on balance the tribunal should accept the word of the claimant.If there is proof that the ESA50 was issued then is there proof as to when it was actually posted to the client.
If they can prove that it was posted then there is a ‘presumption’ that it will have been delivered to the client, so unless they can prove some problem with the post they would be struggling to win (though the tribunal can still believe them)
How can I prove he is a credible witness, and how can they prove he is not? He does not have a criminal record, and anyway, is that really within the remit of the DWP to get police records? I can’t imagine that it is, for the sake of 2 weeks worth of ESA!!
Apparently 400,000 letters go missing every week by Royal mail
Can this not be taken into account ?Statistically a few ESA50s must be in there somwhere
Fab statistics. Please can you quote me your source so I can present it as evidence at the Tribunal?
How can I prove he is a credible witness, and how can they prove he is not? He does not have a criminal record, and anyway, is that really within the remit of the DWP to get police records? I can’t imagine that it is, for the sake of 2 weeks worth of ESA!!
You don’t prove it, nobody else proves he is not. Credibility as a witness is for the tribunal members to decide as they evaluate all the evidence put to them. They are likely to take into account his demeanour, whether or not he is consistent throughout the tribunal, whether his verbal evidence is consistent with documentary evidence produced by either side, etc. If the DWP produced a previous fraud issue that might damage how the tribunal perceived him but they are unlikely to do a criminal record check on him.
The fact of it is some folk appear completely credible but are fibbing, some folk have difficulties with credibility even when being completely truthful - for example looking tribunal members full in the face while delivering evidence is likely to be taken as being open and honest, difficulties meeting their eyes might be taken as being shifty or dishonest even if it has other causes.
There is no requirement in law for a claimants evidence to be corroberated:See R(SB)33/85: http://www.rightsnet.org.uk/pdfs/rsb/33_85.pdf
That doesn’t mean that the client will be believed. It is open to the tribunal to decide that the client is not a reliable or credible witness.
The burden of proof is on DWP to prove that grounds exist to supersede the award of ESA
The minimum proof from DWP I would expect is that there should be evidence of the first ESA50 being issued - usually a screen print.
If there is no proof of the ESA50 being issued then on balance the tribunal should accept the word of the claimant.If there is proof that the ESA50 was issued then is there proof as to when it was actually posted to the client.
If they can prove that it was posted then there is a ‘presumption’ that it will have been delivered to the client, so unless they can prove some problem with the post they would be struggling to win (though the tribunal can still believe them)
How can I prove he is a credible witness, and how can they prove he is not? He does not have a criminal record, and anyway, is that really within the remit of the DWP to get police records? I can’t imagine that it is, for the sake of 2 weeks worth of ESA!!
Mary, if his account of the progress of events comes across as believable (if his story is credible and he doesn’t contradict himself/the progress of events and if there is no history of the client failing to return forms/respond to requests for information, which presumably there isn’t) I see no reason why a tribunal shouldn’t accept his account of what happened and allow his appeal. I don’t think you need worry too much about obtaining documentary evidence of how many letters the PO fails to deliver. If the client has had any historic difficulties with post delivery its obviously relevant and worth raising, but I doubt there is anyone who truly believes that post doesn’t sometimes go astray.
My client did not get an ESA50, but got a reminder 4 days before it was due back. He rang and another was sent out, but arrived after the due back date. He sent it anyway. He had his ESA suspended. The decision maker said that they had made 2 phone callls and not got an answer. They said that was all they were required to do, and so suspended payment.
He made a new claim and is now getting ESA, but is still missing that 2 weeks gap. We have a Tribunal date now, but I don’t know on what grounds he can appeal, as it is his word against theirs. He never got any phone calls, or missed calls on his mobile.
Please advise if anyone knows how to appeal this?
Thanks
Mary
Have a look at R(IB) 1/00 and the following guidance:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/297540/dmgch42.pdf
“para 42229
Care must be taken to identify the date the questionnaire was sent. The date of its issue is only an indication of the date on which it was posted. The DM should consider whether the questionnaire actually left the issuing office and was put into the external mail on the date recorded. R(IB) 1/00”
The fact that he telephoned before the deadline and they sent a further ESA50 indicates that the DM did not properly consider whether ther questionnaire actually left the issuing office and was put into the external mail on the date recorded. The call from the claimant on receipt of the reminder but before the deadline indicates that the claimant is acting timeously and in good faith and that the form may well not have left the issuing office on the date recorded.
Also para 42232 may be relevant:
“As in DMG 42228 the law imposes time limits on the Secretary of State in relation to the sending of the questionnaire and the reminder. However, there is no law imposing a time limit on the claimant for the return of the questionnaire. Sometimes the questionnaire is returned after the time limit imposed on the Secretary of State but before the DM has considered whether there was good cause for the earlier failure to return the questionnaire. In these circumstances, the determination cannot be made because it cannot be held that the claimant has failed to return the questionnaire. Instead, normal WCA action should resume.”