Appeal decision not notified

Hi

My client was in receipt of IB plus an IS top-up to March 2011 when she failed the WCA assessment during the conversion to ESA process.
With the help of someone at JCP, she submitted her GL24 and was put on reduced-rate IS (not ESA).

She came to my attention in September 2012 regarding a different issue and it struck me as somewhat odd that her appeal hadn’t been heard. She remembered getting the TAS1 and requesting a paper hearing but says she didn’t receive the appeal papers. In all honesty, and knowing my client, I cannot categorically state that she couldn’t have lost the papers though.

My advice was to contact the TS and ask what was going on with her appeal to which they replied that it had been heard in June 2011 but they would not give out the result to her over the phone!

I made a call to the income support section handling her claim and they said they were still paying IS based on a pending appeal….

I had to write to the TS as they failed to provide the written outcome of the appeal that my client was promised in her call to them. The response I received was that according to their computer records, she lost her appeal on 2nd June 2011 but “unfortunately, we no longer hold any papers for the appeal and therefore I am unable to supply you with a copy of the actual decision notice.”

The current situation is that my client is making a (new) claim for ESA but I think she has suffered financial loss because of this situation:
•  I think she should have been put on ESA once her appeal was submitted and not reduced rate IS
•  Had she been informed of the tribunal decision in June last year, she would have been able to either make a new claim at that time (if she had a new or significantly worsened condition) or make a new claim for the same condition in December 2011 (and then faced a new medical in March 2012) or claimed JSA
•  She may also have lost any transitional protection?

What I don’t know is what to do about this mess! It seems that the TS didn’t inform my client or the DWP about the results of her appeal. So far all I’ve done is ask her to request backdating of her new ESA claim.

Shall I await the result of her new ESA claim and then challenge the start date?
Is there any action that I can take regarding the Tribunal Service?

Any help gratefully received!

Phil

My initial thoughts (for what they’re worth):

I suppose it was definitely a WCA failure? There were still a few PCA’s going on at that point if I remember rightly.

If she was erroneously paid reduced rate IS instead of ESA you could take it up with her BDC (it’s a clear error) but it seems to me that their liability would only be for the period March11 (when she failed WCA) and June 11 (when the appeal was heard and dismissed) so it’s likely to be a lot of work for a relatively small gain to your client.

I also doubt there would be any way of confirming that TS didn’t issue the decision to client/local BDC. It’s not uncommon for BDC’s to either not recieve them or, more likely, lose/misfile them, and (let’s face it) clients aren’t always reliable on things like that, especially so long after the event. I suppose you could put in a late SOR request but even if it was accepted (unlikely) I can’t see any obvious grounds for set-aside request/application for leave to appeal, etc, being as client requested paper rather than oral hearing (the lack of the appeal bundle is the only thing, but again, it seems- at best- ambiguous that client definitely wasn’t sent a copy).

I think this is one of those times where cutting your losses and moving on is the only realistic option (though I’m sure there will be other opinions).

Hi, thanks for the reply.

I had (sadly) arrived at the same conclusion - I think I just wanted to have my thoughts confirmed! I’ve already given my client the bad news.

Thanks again,

Phil