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Recoverability of overpayments and inaccessible correspondence
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[ Edited: 28 Sep 2015 at 12:14 pm by sharon RNIB ]No case law as such (I’m sure other could reel it off but my brain no longer does that) but several points that would need to be addressed.
1) Recent VI or there for some time? Might they have known of the duty to disclose anyway?
2) Had they made any requests for information to be in an accessible format? If so, then what happened to those requests?
3) Is the accessible format they require fairly straight forward?
4) What’s the evidence that they would have understood and acted given the opportunity to do so? You allude to English issues and possible capacity issues. Same case? DWP can argue that the lack of info. in an accessible format wasn’t necessarily decisive if there’s evidence client would not have acted anyway e.g. once had a client who had vision subsequently lost. Knew to disclose when had vision but failed to do so conspicuously on a previous occasion.
5) What did the client do when information arrived in an inaccessible format? It’s not sufficient to simply say “oh woe is me”. Argument would be that no reasonable person would get a letter; say “I can’t read it” and leave it at that. Was whatever they did timely? i.e. was there no delay?
6) Some interesting stuff on English as a second language. I’ve dealt with it in terms of several languages over the years but can relate in terms of Welsh speaker who spoke immaculate English. World of difference between excellent verbal skills and reading. Tribunal chair (as was) skilfully extracted fact that language was an issue as Welsh client with perfect spoken English had completely misinterpreted several questions as reading skills weren’t of same standard.
7) Plenty of caselaw on capacity. Whole are unto itself. I’ll leave that to others.
Do capacity issues arise? It’s called the Mental Capacity Act after all…
EWdit; I read a couple of years ago about a blind bloke who got £15k compo from DWp because they kept sending him small print forms. Maximum mid range Vento award by the sounds of it.
You might be a bit late to take it up but it’s something to consider.
[ Edited: 12 Sep 2014 at 04:13 pm by Dan_Manville ]Taking on board Mike’s comments and in consideration of the decision in B in the Court of Appeal it’s potentially in breach of s20(2) and (6) of the Equality Act 2010.
Seem to recall the EA10 gist was the stuff about duty to make ‘reasonable adjustments’ where they would reasonably have known the persons condition and implications thereof. So, person didn’t have to identify as having a VI or specific RAs if already known via a claim on system.
Plenty to go at either way.
I had a blind client who was sent out a letter from the DWP in Braille. Even though he reads Braille, he couldn’t understand the letter as, due to their paper saving initiative, the DWP had printed the letter double sided!
There was also the issue that the Braille used was the American English variety, not UK English. I flagged this up with the DWP, but never got a response…
So, so, so, SO trying not to laugh.
I did have a client who asked for large print. DWP misread 18 point as 180 point and sent the client several hundred pages of paper each with 1 letter on. If this weren’t bad enough they failed to staple it together… Hats off for effort. They even put it on pastel yellow paper, for which the client had no need whatsoever!!!
I tried to re-enact the Bob Dylan Highway 61 video but it didn’t quite work 😊
“So, so, so, SO trying not to laugh”.
I wasn’t able to control myself.
“I did have a client who asked for large print. DWP misread 18 point as 180 point and sent the client several hundred pages of paper each with 1 letter on. If this weren’t bad enough they failed to staple it together… Hats off for effort”.
That’s hilarious. I can imagine the DWP officer now, saying to himself “I’ll show him”.
“So, so, so, SO trying not to laugh”.
I wasn’t able to control myself.
“I did have a client who asked for large print. DWP misread 18 point as 180 point and sent the client several hundred pages of paper each with 1 letter on. If this weren’t bad enough they failed to staple it together… Hats off for effort”.
That’s hilarious. I can imagine the DWP officer now, saying to himself “I’ll show him”.
If it’s a one off it carries maximum compensation of £5k under the EQA (goes up to 15k if it’s repeated a few times) and actions such as that teach the Bad Guys not to do it again.
Admittedly difficult to get Legal Aid for in the current climate but it’s an option that appears rarely to be entertained.
I agree Dan, but the problem is less about legal aid and more about where to start.
A person facing this sort of well meaning but misguided nonsense will usually face Council Tax bills in 8 point; letters from the Council in 12 point; letters from their GP or consultant in similar; street and shop signage they cannot see or read and so on.
I’m a fully paid up advocate of the social model of disability but when you start to look at things from that perspective, especially in light of EA 10, you begin to realise that for a disabled client, the DWP number one amongst many. Often the perception with DWP, JC+ and local authorities is that the bigger issue is the lack of joined up thinking and the generation of automated correspondence. Certainly for disabled clients in work the battle to stay in work and function as an employee takes precedent over battling organisations over accessible correspondence.
Veering well away from o/ps. Apologies.
I agree Dan, but the problem is less about legal aid and more about where to start.
A person facing this sort of well meaning but misguided nonsense will usually face Council Tax bills in 8 point; letters from the Council in 12 point; letters from their GP or consultant in similar; street and shop signage they cannot see or read and so on.
I’m a fully paid up advocate of the social model of disability but when you start to look at things from that perspective, especially in light of EA 10, you begin to realise that for a disabled client, the DWP number one amongst many. Often the perception with DWP, JC+ and local authorities is that the bigger issue is the lack of joined up thinking and the generation of automated correspondence. Certainly for disabled clients in work the battle to stay in work and function as an employee takes precedent over battling organisations over accessible correspondence.
Veering well away from o/ps. Apologies.
Where to start? A phone call to Civil Legal Advice on 0845 345 4 345…
I see your point about the widespread problems but when those problems start to balloon; and where institutional carelessness and disregard for individuals is behind it, then we need to start somewhere. When it’s costing our punters money, causing distress and represents a further burden on our caseload then there’s avenue to do something about it.
After all, DWP stopped listening to the likes of us while I was chasing a legal aid caseload so it would seem; the enviironment is certainly very different than when I was at a CAB and you’d see local BA offices taking our concerns on board and changing things.
Maybe when the Disability Benefits Consortium seemed to lose their voice was the pivotal time but whichever way I see little want within DWP to listen to our advice or properly address peoples’ needs.
As you say; DWP number one amongst many, but they’re probably one of the most important so that’s my starting point and we’re seeing results although with the existence of confidentiality clauses I can’t say very much about them… Suffice to say that there’s a way of applying enough pressure to The Powers That Be that they have started listening again.
We’re relatively confident that DMG memo 2/14 was the result of an action we brought against DWP although we’ll not know for sure for another 30 years; the timing was one hell of a coincidence though. You don’t necessarily need to get through the door of the Court to rattle them into changing things.
There’s at least one case ongoing at the moment that I know about that; if it succeeds, will likely be publicised. I believe another board member is assisting in litigation too.
Especially when public functions are increasingly being delegated to consortia that have little interest in anything other than LEAN princples now is the time to take every measure to ensure that the claimant remains at the centre of their considerations; if that is lost our lives will only get harder; as will those of our clients.
[ Edited: 17 Sep 2014 at 04:36 pm by Dan_Manville ]Nail on head there Dan.
Ultimately the issue is that you need someone, a person or an organisation, to support you. If you don’t have that then the battle is to either obtain or stay in work or benefits and nothing else gets done unless a person is phenomenally determined. Most people with long term conditions face such huge barriers that their energy simply has to be directed to those things above all else.
I’m saying this as someone with complex VIs that are hard for most people to understand. I always thought I would look back on my welfare rights career at some point and measure it in gains; test cases; judges offended and so on. I’m now of the view that in comparison to the experience of the other people I’ve met with similar, the real measure is that I had a career at all; that it was full-time all the way. That’s not the general experience of people with my VIs which was certainly something which brought me down to earth with a bump.
In recent years the energy to stay in work by overcoming various barriers (mostly imposed by working practices, public transport etc.) has periodically surpassed the energy used on the tasks at hand. Having become an advocate on behalf of disabled colleagues via a staff group, the recurring theme is just that. The energy needed is exhausting.
I would be genuinely interested in the sort of cases you take. DWP have disengaged to such an extent nowadays that those sorts of alternative actions will have to become mainstream activities for what’s left of welfare rights advice as a career.
DWP have disengaged to such an extent nowadays that those sorts of alternative actions will have to become mainstream activities for what’s left of welfare rights advice as a career.
Zackly & the sooner people realise that and start taking action the better to my mind.
I’m happy to discuss individual cases with people and I know Ryan Bradshaw at Stephensons is too. The up and down of it is the duty to make reasonable adjustments; that can extend to taking your word for it that someone’s agoraphobic and can’t even get to their GP never mind ATOS, or failure to use the safegaurding policy that the chap from Greenwich was talking about. Inaccessible assessment centres is another biggie as is unreasonable Work Related Activity or sanction.
Basically, where DWP have failed to properly take account of a protected characteristic there might be an actionable cause and with Work Programme Providers you mght not even need a solicitor; it’s likely a job for the Employment Tribunal instead (ok that’s a moot point but we’re making progress in that direction…)
I’m loathe to put my phone number on here but my email address is dan dot manville at wolverhampton dot gov dot uk.
I’m not saying it’s easy mind and when HH Judge Martin’s dark matter makes its come back I will have to rebalance my workload but for the time being we can (and should) make a difference.
In terms of pubic law challenges or discrimination cases, has anyone started pursuing public law proceedings/discrimination proceedings opposed to the conventional complaint routes????
I have in the past several months read material and strategies for utilising these routes from Barristers including Tom Royston and Desmond Rutledge.
Both identify the possibility of even using legal aid funding, be it public law or exceptional to bring challenges.
I was just wondering if those within the welfare rights sector have started using these routes?
Yes they have… If you want a chat Manik, email me; dan dot manville at wolverhampton dot gov dot uk.
You might have come across Ryan but he’s on holiday at the minute.