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Non-receipt of ATOS letter leads to failure to attend medical assessment leads to DLA being stopped.
68 year old client did not receive ATOS appointment letter had her DLA stopped. She was claiming PIP for the first time. The first she knew about it was when she received the letter informing her that DLA had stopped. She asked for an MR, unsuccessfully. The DWP state there is no provision which would allow reinstatement of DLA.
Please note, my client does not own or know how to use a mobile phone, therefore, she could not receive a reminder text like the majority of DLA/PIP claimants.
I am trying to run an anytime revision. By not telephoning client to find out why she did not attend, when they should have done so, the DWP made an official error by omission. I’m not confident that this will succeed.
Also running age discrimination because elderly people are less likely to use a mobile phone. The practice of texting claimants disproportionately discriminates against claimants over the age of 60.
Anyone with any other I deas or solutions.
Could your client be classed as vulnerable under the Care Act? Could you argue DWP/ATOS have failed in their duty of care?
what are the dates on this you seem to indicate you may be outside the usual time limits?
You say she asked for an MR unsuccessfully - do you mean she was late and they refused to carry it out - or they didn’t change the decision on MR - if the latter then I think you can just appeal on the grounds that she had good reason for not attending the assessment (see regs 9 and 10 of the PIP regs)
It sounds to me like the DWP are mixing it up with the situation where someone fails to make a claim when invited to under the transitional regs - but from what you say it sounds like she started the claim and then it was a later stage where she missed the assessment which I think just comes under the normal regs.
what are the dates on this you seem to indicate you may be outside the usual time limits?
No it’s within the time limits.
Could your client be classed as vulnerable under the Care Act? Could you argue DWP/ATOS have failed in their duty of care?
Thanks for this idea, I think it could be very useful. Yes “duty of care” is applicable methinks. Would we be able to JR ATOS and DWP. Fettering of discretion by topping DLA without giving my client the chance to explain why she failed to attend. It seems to me that ceasing DLA without contacting the client is the fettering of discretion. Anybody know a decent barrister or perhaps CPAG might run it, as a test case. Any comments welcomed.
You say she asked for an MR unsuccessfully - do you mean she was late and they refused to carry it out - or they didn’t change the decision on MR - if the latter then I think you can just appeal on the grounds that she had good reason for not attending the assessment (see regs 9 and 10 of the PIP regs)
It sounds to me like the DWP are mixing it up with the situation where someone fails to make a claim when invited to under the transitional regs - but from what you say it sounds like she started the claim and then it was a later stage where she missed the assessment which I think just comes under the normal regs.
Thanks Daphne, very useful.
Could your client be classed as vulnerable under the Care Act? Could you argue DWP/ATOS have failed in their duty of care?
Thanks for this idea, I think it could be very useful. Yes “duty of care” is applicable methinks. Would we be able to JR ATOS and DWP. Fettering of discretion by topping DLA without giving my client the chance to explain why she failed to attend. It seems to me that ceasing DLA without contacting the client is the fettering of discretion. Anybody know a decent barrister or perhaps CPAG might run it, as a test case. Any comments welcomed.
There might be a duty of care for DWP but I wouldn’t look towards the Care Act 2014, it doesn’t have relevance that I can see for this particular situation.
You also won’t be able to get a JR off the ground (even assuming you can find a solicitor that will take the case and has legal aid funding for public law work) in circumstances where the client has the legal remedy of appeal.
Could your client be classed as vulnerable under the Care Act? Could you argue DWP/ATOS have failed in their duty of care?
Thanks for this idea, I think it could be very useful. Yes “duty of care” is applicable methinks. Would we be able to JR ATOS and DWP. Fettering of discretion by topping DLA without giving my client the chance to explain why she failed to attend. It seems to me that ceasing DLA without contacting the client is the fettering of discretion. Anybody know a decent barrister or perhaps CPAG might run it, as a test case. Any comments welcomed.
There might be a duty of care for DWP but I wouldn’t look towards the Care Act 2014, it doesn’t have relevance that I can see for this particular situation.
Thanks Paul
You also won’t be able to get a JR off the ground (even assuming you can find a solicitor that will take the case and has legal aid funding for public law work) in circumstances where the client has the legal remedy of appeal.
You may or may not be able to get a JR off the ground but a complaint followed rapidly with a letter before action may well suffice.