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Forum Home  →  Discussion  →  Decision making and appeals  →  Thread

DWP fail to implement Tribunal Decision

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Benny Fitzpatrick
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Welfare Rights Officer, Southway Housing Trust, Manchester

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Does anyone have any ideas on how to challenge DWP obstinacy over implementing Tribunal Decisions.

Example 1: Tribunal awards ESA with SG on 03/12/2015. Recommends no re-assessment for 24 months from date of Tribunal. Cl re-assessed Feb 2016-awarded 0 points. MR requested, ESA(SG) reinstated as per Tribunal decision, DWP apologise for unnecessary re-assessment. Then, on 26/05/2016, client notified of further ESA medical assessment. We have submitted complaints to DWP and Maximus, and referred matter via MP.

Example 2: Cl has successful ovp/capital appeal (May 2016), Judge orders full backdate of benefits (ESA and PIP) to November 2015. DWP do not request SofR from Tribunal Service.

Yesterday Cl contacts us to say DWP have informed her (via telephone call) they will not be refunding benefits. When she asked why they are ignoring Tribunal decision, she reports being told that “we can do as we please”.!!!!

Surely this is potentially Contempt of Tribunal? Any suggestions on how to effectively challenge them?

ClairemHodgson
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re example 2

formal letter to relevant benefits office, CC to DWP’s solicitors, enclosing the tribunal decision and asking for repayment of said benefits.  ask bar pro bono unit to refer your client to a barrister re what legal action could be brought etc; full statement from client confirming contents of telephone call (date/time/what was said/who said it/etc)

Victor
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In example 1 the ‘recommendation’ is only that.  It is not part of the decision and had no legal standing.  DWP normally take these recommendations into account but they don’t have to.

Benny Fitzpatrick
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Victor - 30 June 2016 12:43 PM

In example 1 the ‘recommendation’ is only that.  It is not part of the decision and had no legal standing.  DWP normally take these recommendations into account but they don’t have to.

I know Tribunal can only “recommend” interval before re-assessment, (although it seems pointless doing so if it carries no weight). However, as the DWP have already confirmed the tribunal decision in the MR of the first re-assessment, one might think they would not then try a “third bite of the cherry”.

Cl is (understandably) of the opinion that she is being deliberately harassed, and the distress and worry caused to her has caused a noticeable deterioration in her (already fragile) mental health.

Mike Hughes
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I think I may have mentioned this before on another thread quite some time ago but one of the key things to bear in mind is the separation between DWP, TS and the company doing the medicals. There is a theoretical process in place to communicate decisions to DWP in their absence from the tribunal table. Nowadays that seems increasingly breached more than observed. However, the key thing that triggers a second look is that yer private company doing the medicals doesn’t necessarily get the tribunal decision at all. They simply have a list and if someone is one their list then away they go.

I had a handful of cases at one point where I made a point of ringing (I think) ATOS and establishing who I needed to direct the tribunal decision to. They were remarkably co-operative and took the tribunal decision literally. This resulted in those clients having their names removed from a list of periodic reviews for the period specified by the tribunal. All of them, as I recall, were indeed left alone for 2 to 3 years.

Benny Fitzpatrick
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I am testing the email address for Maximus complaints kindly given to us by that nice Mr Dunn at the recent Bolton GMWRAG meeting.

Waiting for them to get back to me.

1964
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Re Example 2- I don’t suppose client has a historical overpayment/series of o/s loans or something does she? DWP does, these days, tend to offset any arrears due following successful appeal against any debts showing on the books.

Benny Fitzpatrick
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No old overpayments or loans that we know about.

Cl was accused of failing to declare an inheritance on the death of her mother. She actually transferred the money into accounts for her children. Tribunal found that Cl lacked capacity to understand her responsibilities, therefore could not be held responsible for failure to notify.

Brian JB
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I appreciate this is a brief summary of the case, but how did the tribunal get past B v SSWP?

ClairemHodgson
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Brian JB - 01 July 2016 12:55 PM

I appreciate this is a brief summary of the case, but how did the tribunal get past B v SSWP?

maybe someone finally cited the Mental Capacity Act; Re B takes no account of that ..... and couldn’t have.

Brian JB
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I won’t claim great knowledge of that Claire but I am not sure how it would help. If it had made a big difference to the principles in B v SSWP, I would have thought that successful challenges to the UT and beyond would have been made by now. I presume that if she had knowledge of the money in order to gift it to her children, she had sufficient knowledge of the fact that she had received capital to require disclosure

Benny Fitzpatrick
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Update re example 1.

Email received from Maximus confirming (as Mike suspected) that they were not aware of the Tribunal Decision and merely arranged assessment after receiving referral from DWP. They have now cancelled the assessment.

DWP are at fault as they have still not uploaded the tribunal decision to client’s file (after nearly 7 months), and now 2 un-necessary assessment referrals. Clear maladministration!

I await the inevitable “blame the claimant” response from DRT.

Re Example 2:

DWP are “rebuilding” Cl’s claim on paper, as her file has “gone missing”. We have been asked to provide copies of the Tribunal decision as they can’t find it!

Developments awaited

1964
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Grrrr….

I’ve had the ‘example one’ situation arise a few times. I’m sure it’s deliberate.

ClairemHodgson
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Brian JB - 01 July 2016 04:19 PM

I won’t claim great knowledge of that Claire but I am not sure how it would help. If it had made a big difference to the principles in B v SSWP, I would have thought that successful challenges to the UT and beyond would have been made by now. I presume that if she had knowledge of the money in order to gift it to her children, she had sufficient knowledge of the fact that she had received capital to require disclosure

not necessarily.  capacity is decision specific.

i have thought for a very long time that the MCA can and should be prayed in aid in benefits matters.  many benefits claimants have issues with learning disabilities and so on and can’t be expected to in fact understand much stuff.  Re B being a case in point, of course.  and mentioning it and the individual client’s issues would serve to emphasise DWP’s failures re safeguarding vulnerable claimants.

Neil
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Second time today I have posted this get your MP involved they must respond to the MP as there is an argument for maladministration, especially the back dated entitlement , the DWP also has to be responded too in 5 working days, this always works well for me.

past caring
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Brian JB - 01 July 2016 12:55 PM

I appreciate this is a brief summary of the case, but how did the tribunal get past B v SSWP?

If the alleged overpayment was as a consequence of notional as opposed to actual capital, then B would not be a hurdle - and a claimant’s capacity would be entirely relevant.

Perhaps that’s the explanation?