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appeals where client has an appointee
had an unusual one yesterday.
client had esa appeal. dad is power of attorney and appointee for benefits. all letters in dad’s name from DWP and tribunal service sent out their info in dad’s name.
we get to appeal and apparently there has been a memo that they need to see the appointee certificate in these cases (assuming thats the BF….whatever number it is?).
they told me the result (success) but wont issue the decision until we get a copy of this certificate. I suggested a decision with a direction notice but this was refused.
1. people should probably be aware of this for similar cases
2. anyone know the quickest route to get this info?
Really can’t see why they couldn’t have issued a direction to DWP before the hearing, if this was going to be an issue.
Thanks for the warning, though.
Oh that’s ridiculous.
Why on earth should they need to see the appointee certificate? If the DWP is treating father as the appointee it’s flipping obvious he’s the appointee (leaving aside the fact that he has POA).
That really does smack of bureaucracy run bonkers, or someone getting the wrong end of the stick.
considering it’s the DWP who hold said certificate…..
what was the judge thinking?
considering it’s the DWP who hold said certificate…..
what was the judge thinking?
apparently the judges have been told in this memo they need to see it to make the decision. i dont understand it myself but there you have it.
anyone suggest the quickest way for me to get a copy from the DWP, does each BDC hold one?
Really can’t see why they couldn’t have issued a direction to DWP before the hearing, if this was going to be an issue.
Thanks for the warning, though.
We didn’t really discuss tribunal issues the other day when we met at fortress Manchester but it does strike me that the Tribunals Service administration is ripe for EA 10 challenges and public law challenges. These sorts of memos need to be
a) forced into the public domain.
b) challenged.
considering it’s the DWP who hold said certificate…..
what was the judge thinking?
apparently the judges have been told in this memo they need to see it to make the decision. i dont understand it myself but there you have it.
anyone suggest the quickest way for me to get a copy from the DWP, does each BDC hold one?
gordon bennett…..
i’d like to see what they say if someone turns up with their CoP Deputyship order in hand…...... (although, did you say your client’s dad has PoA?)
I thought the appointee should have a certificate on hand?
I say this, following an had an overpayment case where one of our grounds was that the appointee wasn’t liable because the appointeeship wasn’t properly put into effect and he didn’t receive decision letters. The client completed application form BF56. DWP guidance says the appointee should then have been issued form BF57, which he can use as evidence of his appointeeship with the bank etc.
In our case my client never received this form BF57, and he was only put on the system as appointee from the point that the pension service realised there was an overpayment they needed to recover. No form BF57 was in the evidence, or in the client’s records obtained under DPA.
(For some reason the tribunal ignored all this, dealt with us on the appeal, and decided my client was appointee from the date he signed the application form ...)
I thought the appointee should have a certificate on hand?
I say this, following an had an overpayment case where one of our grounds was that the appointee wasn’t liable because the appointeeship wasn’t properly put into effect and he didn’t receive decision letters. The client completed application form BF56. DWP guidance says the appointee should then have been issued form BF57, which he can use as evidence of his appointeeship with the bank etc.
In our case my client never received this form BF57, and he was only put on the system as appointee from the point that the pension service realised there was an overpayment they needed to recover. No form BF57 was in the evidence, or in the client’s records obtained under DPA.
(For some reason the tribunal ignored all this, dealt with us on the appeal, and decided my client was appointee from the date he signed the application form ...)
I had a very similar case where DWP hadn’t issued the correct documentation (BF 57 and Helping Hand leaflet). There is strongly worded DWP guidance to DWP staff to issue not only the certificate, but also the leaflet which sets out the appointee’s obligations.
There was then a £42K overpayment, (undisclosed capital unknown to the purported appointee,) which the FTT found not recoverable on the basis of my submission that the lack of notification of the BF 57 and leaflet meant the appointeeship was of no legal effect (same argument as in Anufriejieva cases). The hapless DWP Presenting Officer was erratic and so skilled at annoying the District Judge that he actually helped my case.
So I think it’s understandable that FTTs are asking to see the appointeeship documents as I get the impression that there are quite a few legally ineffective appointeeships out there and DWP are extremely poor at monitoring them.
I wonder if it also means that an appeal by a legally ineffective appointee is invalid and I also wonder if we should be routinely asking to see these certificates ourselves?
Just to link to the guidance, in this thread mickd linked to part 6 of this:
https://www.gov.uk/government/publications/procedures-for-dealing-with-agents-appointees-attorneys-deputies-and-third-parties
... which includes this:
Finally, and importantly, you must send form BF57 to the OP/COP – an example of form BF57 is shown at Appendix 2
The BF57 can be used as proof that someone is an appointee; it is also used by banks as proof that their client (our customer) is indeed incapable. So, sending it is not an option, it is an essential part of the process
(bolding in original)
There are also other references to BF57, e.g. in Part 5 for visiting officers to set up an individual as appointee:
if you decide to agree the appointeeship at the visit explain what will happen next to the appointee e.g. a new claim will be decided, an existing award will continue etc. If you have taken a BF57 with you to the visit, and this is good practice, then complete and hand this to the appointee. If you do not have a BF57 say you will send one in due course. If you decide not to make a decision at the visit because you are uncertain about the customer’s incapacity and require further medical evidence you should explain this. If you think the prospective appointee is best placed to obtain this e.g. from the customer’s doctor then he should be told; if you need to discuss with the department’s doctors then you should do this as quickly as possible. If at the end of this process you decide to make the appointment then you should tell the appointee, by phone if possible. You should explain what will then happen (see above); you must also send the BF57.
Re Neil’s point about asking to see BF57s, has anyone here ever seen one? My rule of thumb is just “if the benefit letters are addressed to them, they must be the appointee”.
In the case starting this thread, I don’t follow the logic of the FTT entertaining the appeal from the appointee without sight of a certificate, but then needing the certificate in order to supply a copy of the decision. Unless it’s imposition of a new policy part way through.
Just to link to the guidance, in this thread mickd linked to part 6 of this:
https://www.gov.uk/government/publications/procedures-for-dealing-with-agents-appointees-attorneys-deputies-and-third-parties... which includes this:
Finally, and importantly, you must send form BF57 to the OP/COP – an example of form BF57 is shown at Appendix 2
The BF57 can be used as proof that someone is an appointee; it is also used by banks as proof that their client (our customer) is indeed incapable. So, sending it is not an option, it is an essential part of the process(bolding in original)
There are also other references to BF57, e.g. in Part 5 for visiting officers to set up an individual as appointee:
if you decide to agree the appointeeship at the visit explain what will happen next to the appointee e.g. a new claim will be decided, an existing award will continue etc. If you have taken a BF57 with you to the visit, and this is good practice, then complete and hand this to the appointee. If you do not have a BF57 say you will send one in due course. If you decide not to make a decision at the visit because you are uncertain about the customer’s incapacity and require further medical evidence you should explain this. If you think the prospective appointee is best placed to obtain this e.g. from the customer’s doctor then he should be told; if you need to discuss with the department’s doctors then you should do this as quickly as possible. If at the end of this process you decide to make the appointment then you should tell the appointee, by phone if possible. You should explain what will then happen (see above); you must also send the BF57.
Re Neil’s point about asking to see BF57s, has anyone here ever seen one? My rule of thumb is just “if the benefit letters are addressed to them, they must be the appointee”.
In the case starting this thread, I don’t follow the logic of the FTT entertaining the appeal from the appointee without sight of a certificate, but then needing the certificate in order to supply a copy of the decision. Unless it’s imposition of a new policy part way through.
Seen one BF 57 in maybe 30 years. My rule of thumb is similar. That said DWP have created a rod for their own back by allowing many appointeeships based around a physical inability to cash the money rather than mental incapacity. They also confuse matters further by repeatedly sending correspondence to the ex claimant even when there is an appointee. One could forgive tribunals for at least raising the issue of what evidence there is but we’re in the area of balance of probabilities so unless there’s some suggestion there was no appointee I don’t see why the need for evidence of it should arise.
Again though, we need to be forcing guidance memos like this out into the public domain when they have a clear and inconsistent outcome.
They also confuse matters further by repeatedly sending correspondence to the ex claimant even when there is an appointee.
I’m in Italy, so I don’t have my library, but my memory is that appointeeships are additional to the claimant who still has full rights. Deputies are the ones who take over completely.
They also confuse matters further by repeatedly sending correspondence to the ex claimant even when there is an appointee.
I’m in Italy, so I don’t have my library, but my memory is that appointeeships are additional to the claimant who still has full rights. Deputies are the ones who take over completely.
A disproportionate number of your posts are starting to appear with “I’m in…”
Your right to reside is surely going to be in question soon :)
Appointee becomes the claimant. Appointee should be the only one getting correspondence.
update:
decision notice arrived today in the post.
Update on this issue- same thing has just happened to one of my clients (who holds POA in respect of the appellant- a family member with severe mental health issues). Hearing adjourned for client to provide copy of the POA (despite DWP having seen this previously and client being listed as rep for purposes of the appeal with TS). It does seem awfully ‘jobs-worth’ to me.