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Failure to attend PIP medical
Client failed to attend medical. Says he did not receive letter. MR unsuccessful, appealed, received papers.
Only evidence that letter with appointment was sent is contained in an ATOS contact history sheet, with a date for letter triggered (14 days before assessment date) and client’s address.
I looked at p 949 in S&M Volume 1 regarding determining when a request was sent, and I was wondering whether this 3 judge panel UT decision is out yet?
Not a panel of 3, but CE/4448/2014 is perhaps the latest word on this?
http://www.rightsnet.org.uk/welfare-rights/caselaw/item/print-outs-showing-trigger-dates-can-provide-adequate-evidence-of-posting
I don’t think there’s anything in caselaw which prevents you pointing out discrepancies to cast doubt on other alleged correspondence in the same record for that particular case. E.g. I ‘ve seen where the “date triggered” is earlier than the date on the letter that was in fact received; or, what is listed as an “appointment letter” was in fact a letter about something else.
Thanks for the link, Jon.
Apologies for resurrecting this but, anybody know the difference (if any) between the created date and the letter triggered date on the ATOS contact history? I’m intrigued as to what would be created at 00:13? Sounds to me like some kind of batch file running but what?
Turned up for mine yesterday and found myself with a single judge sitting; a statement of law from same that amounted to proof of postage is not proof of receipt and a single question to the appointee of “Did you receive this letter?” “No!”. “Okay, I can tell you now that you have won.”
3 minutes in total plus a little chit chat afterwards!
Turned up for mine yesterday and found myself with a single judge sitting; a statement of law from same that amounted to proof of postage is not proof of receipt and a single question to the appointee of “Did you receive this letter?” “No!”. “Okay, I can tell you now that you have won.”
crikey.
well done but I am somewhat surprised ........
You and me both 😊
Maybe the judge simply meant ‘for the purposes of good cause’?
I think in CE/4448/2014 though, the appellant’s case was that the SoS’s printouts weren’t enough to establish that the terms of reg. 23 were met - i.e. 7 days’ notice given. Isn’t that subtly (but importantly) different from the question of whether notice was actually received for the purpose of ‘good cause’?
Yes, there’s the presumption in law that a letter posted is received, but that doesn’t stop a tribunal finding on the facts of a particular case that a letter was both posted and at the same time not received. I’ve had a number of ESA ‘failed to attend’’ appeals where the DWP’s own examination and letter histories have been near enough all the evidence I’ve needed - e.g. the claimant has had a flawless record of returning ESA50s and attending examinations going back a number of years, right up to the single ‘failed to attend’ that is in issue….
Also CE/4448/2014 hasn’t killed off the ‘inadequate evidence’’ of posting line of argument entirely - the ‘date triggered’ day will still quite often be a Sunday, as was the case in CE/164/2013 and I think in such cases the ‘date triggered’ day is actually the ‘date the computer programme generated/triggered something but not the day it was posted’ day. At least, I continue to argue and succeed with this….
Being a good boy, my submission of course included the full text of CE/4448/2014; a concession that it applied and one or two challenges to the DWP submission e.g. the ridiculous but oft repeated line that the post can’t have gone awol because here’s an ATOS print out; the claimant hasn’t reported the address as unsafe, and, the fact there was allegedly no other evidence of post going missing (apart from the DWP sub statement that the decision to end entitlement was also asserted to have gone awol as the appointee first got in touch when the DLA payments ceased for no apparent reason!).
My argument was two pronged:
1) CE4448/2014 was the latest authority and it, as you say, allowed for the possibility of evidence refuting receipt.
2) In any event DWP knew the claimant was vulnerable (appointee, learning disability being the sole basis for the original award etc.) and failed to comply with their own safeguarding guidance with regard to vulnerability - two calls and a home visit before termination.
None of it counted for anything. The judge specifically refuted the UT decision by saying explicitly that proof of postage via a computer print out was not proof of receipt for social security purposes and then moving onto the single question as to whether the appointee received the letter.
I shan’t be asking for SoR or RoP! :)
Well I suppose that beckoning 19th hole can cut both ways. ;)
Well I suppose that beckoning 19th hole can cut both ways. ;)
The thought never crossed my mind :)
I do miss the Manchester judge who would adjourn or give you the win for anything after 2pm on a Friday as they met their partner in House of Fraser for afternoon tea at 3pm and then had a game of real tennis to attend to :)