Error of law - what do you think? 

Hi,

I recently assisted with an appeal for a client who failed to attend a WCA and the DWp deemed her not to have good cause. We appealed and the appeal failed as the Tribunal state that taking everything in to account they feel that she could have attended.

Essentially, the client was due to attend an appointment on 17/06 and called to cancel as she had a conflicting appointment with her GP. Whilst on the phone, a new appointment was arranged which she agreed to.. This was booked for 23/06.

She suffers with anxiety and struggles to go out alone, and so her daughter had agreed to go with her. On the day of the assessment, her daughter phoned and said that she couldn’t go, and so the appellant didn’t go and she had nobody to accompany her. She completed the BF223 and explained the situation but the DWP stopped her claim, stating that she could have made alternative arrangements. They go on to say that she has other children and that if she thought her daughter couldn’t attend, then she shouldn’t have accepted the appointment in the first place and should have made the appointment for a time where one of her other children could attend.

We argued that essentially that was like asking her to predict the future, and she couldn’t have reasonably known that her daughter wouldn’t be able to attend. We explained that she struggles to go out alone, and in fact had refused to claim JSA when her ESA stopped because she couldn’t face going to the JCP, which is only a 5 minute walk away.

The appeal failed (we were unable to attend but the client attended) and reading the SOR, the judge says that it is improbable that she wasn’t claiming JSA, and that because she was not on any medication at the time of the assessment, then they feel that she would have been able to attend. The client is insistent that she was on medication but the report from her GP contradicts this.

Personally, I feel that this has been brushed over and that the reasons are not really sufficient. I know that the client hasn’t claimed JSA since her ESA was stopped but the Judge seems to be implying that she has. Seems unfair. The client has explained that she cannot go out unaccompanied, and her daughter did go to the Tribunal with her. The Judge said that the client was tearful during her hearing but coped reasonably well.

I know its difficult, but would anybody be tempted to argue an error of law?

i don’t see how it is for a judge to say that a person has claimed JSA when the person is clear that she has not.  it’s not for the judge to assume that.  had the judge wanted confirmation it would have been easy enough to adjourn and ask DWP the precise question.  Unless there was something before the judge by way of evidence contradicting what your client says, i think that is the error of law you need.  and then add on submissions re the impossiblity of predicting the future when arranging appointments.  presumably daughter could/did give evidence as to why she had been unable at the last minute to accompany her mother to the missed medical?

I agree with Claire on the identifiable error of law.  The Tribunal had no evidential basis to make such an assumption regarding the JSA.  If the tribunal was minded not to accept the appellant’s word on the point it should have adjourned with directions.  Its action was a breach of the right to a fair hearing.

Agree with the above. Also, I did wonder whether this decision from Judge Hemingway might also be useful, albeit made from a different perspective about reg.35 risk, insofar as argument about daughter accompanying?

CE/1885/2016 Available third party assistance can be taken into account when assessing risk under ESA regulation 35 [2016] UKUT 502 (AAC)

I am satisfied therefore, that so long as it can be demonstrated by evidence that third party support of some sort will be available, that that can be taken into account when assessing whether the relevant degree of risk arises.

In this case, there is evidence that the third party support wasn’t available, hence failing to attend. Cuts both ways surely?

I think you have your error of law but there may well be more to go at. For example, what is the specific evidence which led the tribunal to conclude that it was foreseeable the daughter wouldn’t be able to attend? What is the specific evidence suggesting other children would have been available at short notice? Are they local? Do they normally assist? Is it even an option?

Playing devils advocate I assume you have a coherent answer as to why the claimant felt okay cancelling a DWP appointment as opposed to a GP appointment? How urgent was the GP appointment? How easy to rearrange?

and all of this over a few quid in ESA. such value for the tax payer in dwp decision making.

The question is one of whether your client has good reason not to attend the medical examination. Whether she claimed JSA, or failed to claim JSA, isn’t really relevant to whether your client had good cause not to attend the medical on the appointed hour. The fact that you say she didn’t claim JSA is only indicative (not necessarily evidential) of the fact that your client needs support to go out.

If anything I would use the fact that the judge even mentions JSA - especially so when there is no direct evidence of a claim for JSA-  to highlight the fact that (s)he is considering irrelevant issues, rather than relevant issues.

Even with the irrelevances, does the judge go on to fully consider the relevant issues that Mike highlights?

the daughter who was supposed to attend was 8 months pregnant and she said that she couldn’t attend at the last minute as she had not been sleeping well due to the pregnancy and so I don’t see how she could have known in advance. her daughter was with her when she re-arranged the appointment and confirmed at that time that she could attend, and the client had no reason to doubt this.

stevenmcavoy - 21 December 2016 02:01 PM

and all of this over a few quid in ESA. such value for the tax payer in dwp decision making.

pragmatism has no place in bureaucracy.