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DLA-Refusal to provide evidence before Tribunal bundle
Hi,
Just wondering if anyone had come across a new “holding” letter from DBU? I have always requested a copy of all evidence used on appealing decisions and have never had a problem with this. However, I recently received a letter stating that while they have received my request for the evidence used, this will not be provided until the DM has reconsidered the decision under appeal. If the decision remains the same, a copy of the evidence used will be provided along with the Appeal writer’s submission to all parties.
I rang and was put through to Birmingham who state this is a new policy, only brought in 2 weeks ago. It only relates to appeals so won’t affect revision requests. They cannot tell me whether it is a national policy or pilot and could not really justify the policy they are now implementing. When I pointed out that this will seriously hamper our efforts to assist a DM in revising a decision by providing further evidence in the contested areas for example, I was told that the DM does not reconsider the decision at this point in any case, they merely review the papers to confirm whether the decision was correct!
What do people think? Does a client/rep have a right to the information used before the Tribunal bundle is issued?
Many thanks for any responses.
A right to see the info yes but not necessarily before the decision is reconsidered.
A complaint under the DPA may (or may not) be quicker than a reconsideration.
Another question.
Could the DWP charge for personal info outside of the appeal process?
Good question John but please God, no!
When assisting appellants, I have had two occurrences where LAs tried to demand payment on the basis that evidence requested in relation to an appeal constituted a request under the DPA. The following is an extract from the letter drafted for the appellant as sent to one of the LAs (a similar version was sent to the other):
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I now turn to my request for documentation and records relating to my appeal. The documentation and records requested are necessary in order to properly pursue my appeal. As this relates to a matter involving legal proceedings (this includes Appeal Tribunals), it is wholly unreasonable for a charge to be made. Effectively, you are imposing a charge on justice at a stage where it is intended to be free. I point out that you are in any case required, in the interests of justice, to make FULL DISCLOSURE of ALL records and documents that may have an effect on the appeal - not just those purported, by the Council, to have been relied on when the decision was made. In the experience of my advisor, it is not unusual for local authorities to be somewhat selective in the records and documentation produced in relation to benefit appeals.
In that context, it is submitted that it is wholly inappropriate for the Council to be its own adjudicator as to what is relevant to the appeal.
My advisor further notes the following:
a) s.35 of the Data Protection Act makes it plain that non-disclosure provisions do not apply where disclosure is for the purpose of legal proceedings.
b) point 7.195 of the HB/CTB Guidance Manual (as at April 2007) makes it equally plain that ALL evidence relevant to the appeal should be made available to the tribunal and disclosed to the appellant. The suggestion is reiterated that it is not for the Council to decide what is relevant.
If, following this letter, you still refuse to provide the information free of charge, my advisor will seek a direction from the Tribunal requiring you to produce what has already been requested; this being on the grounds that such disclosure is in the interests of justice. If such a direction was given, and your authority maintained its refusal, my advisor will consider asking the Tribunal to draw an inference from that refusal.
I look forward to a prompt and constructive resolution of this issue.
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The LA backed down in both cases. Nowadays, case law such as CH/3240/2007 would add even more weight to such an argument made by the appellant and, although not directly threatened in the above extract, it would also be open for a Tribunal to exclude the DWP/LA from taking any further part in the proceedings in the even of failing to comply with such a Direction. Of course, it’s a double edged sword; the DWP (or LA) can use exactly the same tactic to the extent of seeking evidence/info from an appellant for a Tribunal.
In my view the DPA is not even relevant in relation to an appeal. Rule 24(4) of the Tribunal Rules makes it perfectly clear that all documents relevant to the appeal (and if there is a doubt over whether a document is relevant then the common law rule of fairness demands that the appellant be given the benefit of that doubt) must be sent to TTS. Rule 24(5) demands that where 24(4) applies then a copy must be sent to the appellant. So in that respect, until the response is sent to TTS the DWP are not obliged to issue the papers to the appellant.
Under rule 11(6) where “any person” receives notification of a rep then it must issue a copy of “any document which is required to be provided to the represented party” to the rep and need not issue a copy to the appellant. However, it is good practice and accords with the rules of fairness to issue a copy to the appellant.
Thus disclosure of documents is demanded under the tribunal rules and is nothing to do with the DPA as no particular request for the papers is even required. So payment is not in issue.
Whether the Department can charge in relation to other matters outside of an appeal you’d have to look closely at the DPA itself and, for me, that’s for another day.
It is totally reasonable for someone to ask for all the evidence used in making a decision, even before a claimant lodges an appeal. Having all the relevant documents allows a person to make an informed appeal which addresses the crucial issues in dispute. If that material is not available they are effectively appealing “blind”.
Locally, the Jobcentre has never failed to provide a copy of the ESA85 report on a LCWA when requested to do so. DLA unit also provided all requested info prior to appeal, a couple of months ago. I think this must be something new.
The discussion was about getting the evidence before the DWP prepare the appeal papers.
As in the OPs case where the DWP refrain from sending copies of evidence to the apellant/rep before the decision is reconsidered.
Presumably the change in procedure has arisen for a reason (that being the holding letter) and that reason could be cost saving.
So although the appellant can have all the papers required as they are part of legal proceedings and part of the appeal process how do we get them beforehand? That was the reason for the use of the DPA.
I posted the question on costs as sometimes copies of info. are required where there is no legal dispute.
Maybe the DWP in a cost saving exercise may want to save paper? How much of a saving would 10% of paper be to an organisation that large?
I see the future and its not quite white, a bit grey and the quality has dropped a bit.
I believe it could be a cost cutting and time constraint issue for staff. Our team manager rang DBU a couple of weeks ago as we had not received an appeals bundle for a client and although they were very much wanting to help she was told that there used to be a team who dealt with these admin jobs such as copying and sending out papers but they are nolonger therefore it depends on an already very busy staff taking time out to do this job.
Strange. I just spoke to someone from DLA in Blackpool about a recent decision not to supercede a client’s DLA. She happily agreed to send out a copy of the evidence used (GP report)