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case law re good cause for non-attendance at ATOS appt
Client has no known problems with post. Despite MH issues she is well organised and notes appointments on calendar as and when when notified by phone or letter.
Did not receive notification of ATOS appt, nor subsequent enquiry form BF223.
SoS submission asserts that on balance of probabilities it is inherently improbable that client did not receive correspondence from ATOS. I feel it is more a case of “unlikely” rather than “inherently improbable” - and obviously unlikely things can and do happen.
Is there any case law which assists, or hinders, her case? In past cases I seem to recall the submission referring to a presumption in law that if correspondence can be shown to have been sent it is presumed to have been received. However, this is not mentioned in the submission for this case.
It may or may not assist, but request copies of the letters alleged to have been sent. I’ve got a client who has had a number of SMI enquiry letters misaddressed by DWP, despite everything else being sent to the correct address - she received them a number of weeks later when the person living at the address they’d sent them to put them back in the box, and the post office solved the riddle.
I would have a look at CSIB/721/2004 - it may be useful in terms of “sending” and “receiving”.
There are two lines I’ve gone down with similar appeals.
The first is simple, and relies on whether the Tribunal accepts that your client is truthful and beleives that they simply did not get the letter. It helps if they can show that they’ve complied with previous requests for appointments, or replied to other correspondence.
The second is to try to rely on the ‘proof’ provided by JCP that letters where indeed sent to your client. All that is provided in my area is a printout or two provided by ATOS of tables that show the dates and method of communication. It’s not always clear what has been done from this. I have tried arguing that it also does not constitute proof of postinga dn there’s never a copy of the letter that was sent. The last time I tried this, the judge looked a bit annoyed and huffed a little, probably because he realised that if the appeal wasn’t successful that he’d definitely have to write a statement of reasons. Luckily he decided to believe my client instead :)
I am examining a case along the same lines for failure to attend a medical in Sept. 2012. The DWP believed her the first time after a June medical.
I have a table provided of details af letters. The DWP are arguing that she says she hasn’t received notification of the medicals (twice) but yet she receives the BF223s and returns them promptly.
There are copies of the BF223s in the submission, which show that they are sent from the local (IBRA) Benefits Centre. Would I be right in thinking the medical appointments are sent by ATOS, and therefore it is entirely plausible that there may have been a mistake in addressing them or posting them?
There are no copies on the file , so how does anyone know they have sent them?
SoS submission asserts that on balance of probabilities it is inherently improbable that client did not receive correspondence from ATOS.
Prosecutor’s fallacy, surely? It is unlikely that any individual letter will get lost, but it is likely that it will happen to somebody at some time - and it will always be that person making the appeal, not the majority of people who received their letters.
We had two appeal allowed yesterday on the basis of CSIB/721/04 & CIB/4012/04 (on the judge’s initiative before we even got to raise the point!).
thanks for the cases.