Is anybody aware of any caselaw related to the failure to attend a med ex - specifically related to the notion of "good cause" for non-attendance.

I have a client who had to temporarily vacate a property whilst his landlord undertook some building work. As a result he did not receive his post and therefore was unaware of the impending med ex.

As a consequence his N.I cont contributions were withdrawn

Any help would be appreciated

Ask for the decision to be reconsidered and provide evidence from the landlord that your client had vacated the property for the relevant period, proof of where he had vacated to, and why he could not access the property to pick up his mail during the tempory vacation. Then put it to the DM that the decision must be bases on the balance of probabilities that your client had no knowledge of the date for the medical examination.
In our area the DM's give a large slice of benefit of doubt unless it is a repeat offender.

DM's must be a bit more human on your side of the Mersey! I had a cl with COPD and psychotic depression knocked off Incap for not attending a medical on a Sunday in Mann Island, Liverpool City Centre. She doesn't drive, her sister was on holiday and couldnt accompany her and she had no money. She phoned medical services the following day to let them know.....upshot...DM felt it was reasonable for her to either have kept the appropriate fare or to walk the 8 miles to mann island.

I had a SSAT recently and the caselaw revolved around R (S) 2/63, R (SB) 6/83 and CS 371/49.
Reg 9 (I for W) Regs
Hope this is of use

Has it occurred to anyone that one reason for failing to attend a PCA medical is that the claimant has thrown away the letter mistaking it for junk mail? We have a client who has had IB withdrawn for failing to attend a medical, and he came in to the office with a large carrier bag full of paper. Amongst it all we found two, plain white, pre-franked, window envelopes. The sealing flap states: ATOS ORIGIN, Computer Centre, Gresty Road, Crewe, CW2 6BB. That's it! Absolutely nothing to indicate that the contents relate to benefits, DWP or a medical. Client left the envelope sealed, believing that it was junk mail. How on earth is a claimant to know who Atos Origin are? Good cause for failure to attend?

Definately IF they apply the "reasonableness" test properly....but they probably won't. I went to Tribunal recently and the Chair expressed surprise that cl had been knocked off benefit for failing to attend her lst medical. She thought the dm's automatically gave cl's 2 chances.
It's becoming more and more common to have cl's knocked off benefit even though their reasons for failing to attend are perfectly reasonable....in fact it's got to the stage with us that we are asking the Tribunals to make comment to the local offices because all our cases have had benefit reinstated on appeal without any real effort from us.

There's nothing "automatic" about it; its in the Regulations.
"The Secretary of State may suspend payment of a relevant benefit in whole or in part, to a person who fails, without good cause, on two consecutive occasions to submit to a medical examination ... " Decision & Appeals Regs., reg.19(2).

That regulation doesn't apply to the Personal Capability Assessment. Reg 8 of the Incapacity for Work (General) regs applies instead.

You are absolutely right; I stand corrected.

In cases where the claimant claims they did not receive the notice of the appointment I think it is always worth forcing the DWP to prove they sent the request to the claimant- in my experience they can never prove this.

In such a case good cause for non attendance does not arise.

I have not seen a case where this argument failed.

Martin

WE currently have an appeal where the DWP state the death of the client Mother wasnt good cause for missing a medical. He is on ICB due too mental illness.

with reference to Martin's point above, i think R(IB)2/01, para 7 is useful.

"the claimant expressly raised the question whether the notice had been sent to the right address. In those circumstances, it was clearly incumbent on the adjudication officer to produce evidence to prove that the notice had been sent to the correct address. The bare assertion in the submission to the tribunal that the notice had been sent was not enough..." etc.

re northwiltshire's case - AAAARRRGGHHH!!

not forgetting of course, that the d-m would be entitled to special leave with pay on compassionate grounds...

i don't expect it will go to appeal...?

Believe me with our DM who also does the submissions it will go to appeal, too the on going frustration of ourselves and the tribunal Chairs he will not attend appeal to defend his decision. Over the last 8 yrs we complained and judical reviewed but still he remains. The plus side is we rarely lose at appeal it is just a shame the client has to go through it all.

a decision-monster! unfortunate he does the appeals too! having to write a submission on a bad decision sorts a lot of them out, but since it's his own decision....: (

wonder if the latest memo on reconsiderations will have any effect?

http://www.rightsnet.org.uk/cgi-bin/sub_client/search.cgi?template2=news/user_details2.htm&output_number=1&sort=news.submission_date+desc&news.ID=112114472183&start=

i'd love to hear his reasoning for this particular gem - maybe you could quote it here when you get it...?

sounds like a nomination for a rightsnet 'Stinker of the Year' award, if only we gave them : )

jj

Thanks for that, I will keep you updated

Now recieved schedule of evidence and none of the paperwork explaining good cause all omitted. Complaining to Parliamentary Ombudsman is the next move

once upon a time you could have complained to the chief adjudication officer - it was better than nothing...

no social security watchdog ever...
National Audit Office to be merged with BFI...
the Government ignores the Parliamentary Ombudsman when it suits...
tribunals 'cannot comment' on administration issues...
welfs complaints trouble them no more than gnats bother a rhino...
checks and balances steadily removed on cost and efficiency grounds...

kickass northwiltshire!

I have being doing this job for a long time (too long )and everything you say is so right I have given up trying too negotiate we have used JRs, DDA(alas with no success as yet with this one)LA ombudsman ,MP and now parliamentary Ombudsman (twice in the last 2 months)
Trouble is since the DMA changes in 1999 the paraliamentary ombudsman is dealing with 3 times the complaint they are resourced for. The first complaint as now been fastracked as the DWP are prosecuting my client for a O/P which is still at commissioners and now likely to win given a shift in caselaw i.e.CIB/1985/2004.
Even after we lost the original appeal the Chairman asked the SoS to excercise discretion and not recover. In stead the SoS prosecuted for fraud. The court case is now on hold pending the commissionrs decision. When discussing case with proscution solictor he wasnt aware of the clients mental health(22pts on PCA) or epelepsy or pending commissioner. But said he would need stronger medical evidence than a PCA and the Chairman who requested no recover was in no position too judge peoples honesty though a few chairs werent impressed at a recent meeting.The reasonably stable epelepsy is no longer stable and client is fitting regularly now hence the ombudsman.
NB at a recent forum with the Council of tribunal I met one the creators of DMA to be fair he did apolegise .

Maybe he was an innocent dupe? The in-coming labour government fell for, after all…

i thought the 'dead mother, tough sh*t' decision was appalling, but it was just the tip of the ice-berg!

going by CIB 1985/2004, (which I had missed – thanks!), your client did some limited work which would have been exempt, leaving his IB payable, except for not complying with the requirement to notify within 42 days, which is not a condition of entitlement.

loved this...

"It is of course entirely reasonable to have a notice requirement to help the Secretary of State keep track of what incapacity benefit claimants are up to, but if he wishes to impose what would in truth be an administrative penalty for the mere fact of non-compliance even where there is no true overpayment in the above sense, that must be a matter for appropriate primary legislation to authorise such penalties, not for a distortion of section 71 which as has often been said is restitutionary, not penal."

So not only might there be no overpayment recoverable under sect. 71 at all, your client is being prosecuted for fraud for not complying with a notification requirement which he was unaware of, because the Departmental mailing spun the ‘new flexible rules’ permitting working and continuing IB entitlement, and failed to spell out the requirement to notify… and presumably the prosecution case will be telling the court that your client has received benefit he had no entitlement to and which he obtained dishonestly!

They are attempting to criminalize a severely disabled man, for doing something which the government is promoting as a major welfare reform policy for the benefit of sick and disabled people. in the process they are making his illness worse!

They are doing what your D-M is doing – presenting a false case to the tribunal, careless and reckless of his right to a fair hearing. Any connections I wonder…?

too much to say, so i'm splitting my reply...

jj

Aside from getting the now clarified legal position badly wrong, the actions of the administration are shocking! i'm aghast that the tribunal's wise recommendation to the Secretary of State not to seek recovery has been not only disregarded, but treated with utter contempt. How does the Secretary of State account for that?

the prosecuting solicitor's opinion on the Secretary of State's reasons for rejecting the tribunal's recommendation, is no substitute for the real thing – certainly not when he has a vested interest - i'm not surprised the chairs weren't happy. Does he speak for the Secretary of State?

if it were the case that the only position in which in which 'judgements of honesty' in making civil claims could take place is the criminal courts, there is a lot more about the governments welfare policy which is not being spelled out to the public than the omissions in DWP leaflets on 'permitted work' rules!!! And while it continues to listen to the self-perpetuating ‘worm-tongue’ council of the benefit police I can only see the corruption of civil rights continuing.

JR action is good in theory, isn't it, but it's too difficult to be a very practical remedy, and they know it!

And what of the fraud manager who agreed the referral for prosecution, and the solicitor's branch lawyer who authorised prosecution? - their decisions need explaining?

You say the prosecuting solicitor was unaware of your client’s mental health problems.
the question is, as the prosecuting solicitor, how is it that he is NOT aware of the mental and other health problems? not only is the person's state of health a factor to be considered in the decision on suitability for prosecution generally, but in this case it must be part of the facts of the case being prosecuted? As for the 22 point PCA not being strong enough evidence, words fail me!!!

the last paragraph in Commissioner Mesher's decision referred to by Commissioner Howell in the above decision is also a doozy! He points out the loss to public funds caused by the fraud investigation - the lure of benefit savings overrode REASONABLE action to protect public funds...
this gets to the heart of the matter.

I saw my worst ever fraud victim case this week. Another mentally ill person – 4 months in a mental hospital and three suicide attempts since his IUC in February. What’s more, he won’t appeal the IS overpayment decisions because of his fragile mental health, though imo there are good prospects of success. again due to his mental state, he subsequently withdrew his IB claim, which is unaffected by the disputed capital ownership, so he and his wife have been living on £23 a week IIDB and her small occ. pen of just over £100 a month. In the harsh interview, when his wife asked the investigator to speak differently to her husband because he was ill, she was told she was not allowed to speak. And when the tape stopped, he was told that (regardless of the explanation of capital held in trust, with documentary evidence) the account was in his name therefore he had committed fraud and he would be sent overpayment letters which he would have to repay. He has not been sent a letter advising whether or not they intend to prosecute in the 10 months since the interview.

I was still working in the BA when the consultation paper on DMA came out – I thought it was one of the most dishonest papers I had ever read – my perspective may have been coloured – I’d been moved off the adjudication command where shell-shocked staff were walking round asking ‘what have they (the BA) got against adjudication?’ (It was an ‘obstacle’ to ‘business efficiency’ – hysterical laughter). It took my old adjudication boss over 4 years to fight her bullying case against the office manager, which was eventually proved and they had to pay her big style compensation. (the choice for the entire management team amounted to bully or be bullied.) The disciplinary action taken against the manager was to put her in charge of, you guessed, sector fraud.

Some time before the DMA phony consultation came out, management of fraud was taken out from the mainstream DWP responsibility, and given to fraud to manage themselves ‘discretely’, and they’ve been out of control, or in control, ever since.

The inequality in arms is making an absurdity of any good intentions in government policy and that’s the kindest view I can take. In my darkest moments it seems we are sleep-walking our way to a fascist state.

Blimey do you think we can sue the DWP for what their doing to advisor blood pressure. On a seriuos both these case make a bit of a mockery of the judges statement in the defending the 3 commissioner decision on reasonableness and the claimants ability too fall back on the SoS discretion or lack of discretion as appears to be the case.
The Ombudsman is looking at the whole process( and I assume individuals who instigated the actions).It makes me so mad this case I can't believe the costs involved client has had to engage solictors through the criminal legal aid scheme and I find myself screaming their wasting my tax money. Fortunately I have no impulse to buy the daily as yet.
I will keep you updated on the outcome Ombudsman action.
P.S. we took barristers council on a DDA for sendind the original letters on the permitted work changes which started all this, on the basis it should have been tailored too his disabilities, unfortunately (I don't agree with the Barristers reasoning)as the Barriter felt there was no case we couldn't legal aid funding to pursue the case hence the ombudsman.

easy JJ.... deep breaths.(it's saturday when you posted).

Seriously though- always nice to see some passion.

lol! did i go over the top again...? : ) <blush>

i'm going to take a few days off... i can be rehabilitated........

: )

Just to update you Ombudsman contacted me this morning and have asked the DWP to explain their actions we won't get an answer until the New Year I will then update you. PS this is only the tip of the iceberg as far as this client is concerned if i tried to relate everything I would have RSA

When you get a senior law lord (just retired but seemingly still sitting on a sessional basis somewhere) talking openly about American lawlessness and heavily implying that the UK government could be guilty of war crimes on Channel 4 at 7.20 PM, I'm not entirely sure you are right about the sleepwalking bit, it's happening during the day.

I think Gramsci called it hegemony.

Re RuthT's case, above....did you get any joy with this? I now have one that's identical listed for hearing in February. Any thoughts appreciated.

I have written to the DWP Chief Exec regarding the sending of letters which fail to identify the source as relating to a medical examination for benefit purposes. The reply conceded that this was unsatisfactory and that this matter was under investigation.

Our client had actually been to an appeal, without us, and lost. We have been refused set aside of the tribunal's decision on this basis, so we are now waiting for a full Statement of Reasons for the decision.

Any chance of an anonymised copy of your letter and the Chief Exec's response? As I say, our cases look very similar and a concession from the Department that the situation is "unsatisfactory" may go some way to helping sway the Tribunal. Can't hurt, at least.

In my case, it appears we've still got the (as yet) unopened letters - my chap is a bit of a hoarder......

Snap! We have an unopened Atos Origin letter too. Please supply contact address/fax no. so I can forward DWP response to our letter.

Just to update on my last entry appeal won and chairman didn't even question client she even apolegised that she couldn't have dealt with it any other way then she had. Will now request full wrtten reasons and lodge complaint against DM. Chairman happy to support our complaint. If people have read some of my other postings we have had many other problems with this DM and will look to the Ombudsman. Interestingly he put further information in a ICB submission confirming he will not supply past medical reports unless ordered by TAS so protracting the appeal process, even though his own Manager has told him it contravenes the freedom of information laws. So at last we have evidence to take things to a higher level.

N.B. the DM stated the medical was several days before his Mothers death in fact it was 5 days after her death, and client claimed ICB due to severe depression.

Have e-mailed you with Fax no.

many thanks

new DWP guidance, following CIB/2221/2005 ...... DMG Memo Vol 3 01/06 ....... see today's rightsnet news ....

nb - CIB/2221/2005 not on cmmrs site ... anyone have a copy ... if not, i'll get one

here's CIB/2221/2005 ....

http://www.rightsnet.org.uk/pdfs/CIB_2221_2005.doc

Brief update - won on this one at Tribunal yesterday, the chair accepting good caause. Ruth's letter very useful. Many thanks.

Latest update on Ombudsman (see above) the DWP say that they accept that the first 8weeks client worked is no longer recoverable given Commissioner Howells decision. But rest is as on week 9 worked 17hours. Fair enough will argue work pattern and averaging and De Minus etc. The amazing thing is they are still prepared to prosecute my client for fraud for the whole period ,including the period they now accept is not recoverable. Can you beat that? Batted same back to Ombudsman as clearly no merit in prosecution.