ESA conundrum

Hope someone can give me some guidance

My client claimed ESA in May 2012, she failed WCA and appealed decision. Appeal was held in June 2013. Client was late for appeal and was told decision had been made in her absence. Client never received tribunal decision and continues getting ESA and housing benefit/council tax support. Support worker starts assisting client in June 2014 and realises she has been getting ESA assessment phase rate for 2 years. He contacts DWP and is told they are still awaiting tribunal decision from June 2013. He contacts tribunal service who say decision was made in June 2013 but cannot send it out again to client or DWP instead say they will send screen shots showing tribunal decision to DWP.

DWP have now received tribunal decision - appeal was refused. DWP say that client’s existing claim will be closed down today and she can make rapid reclaim of ESA. DWP are saying will not seek to recover ESA paid from tribunal date to today, however, if client had received tribunal decision in June 2013 she would have reclaimed ESA immediately as new health conditions were diagnosed and her health has deteriorated signifcantly since then. She first claimed in 2012 with pneumonia. By June 2013 she had been diagnosed with Emphysema - she uses an oxygen tank for 18 hours a day, she has lymphodema and is clinically obese. She may also have appealed to the upper tribunal if she had had the opportunity.

Client’s new claim begins today so assessment phase rate will start again even though she has received it for 2 years. Wonder why DWP never tried to find out tribunal decision until support worker got involved, potentially she might have been paid ESA assessment phase rate indefinitely. Is it possible to try and get additional payment from DWP due to client being penalised for tribunal’s decision not being received by either the client or the DWP and the fact that she will now need to wait at least a further 3 months before WCA (in my dreams) and if so how might this be done? through a complaint, through an appeal against ESA claim being stopped today or by some other means.

I hope this makes sense.

“...if client had received tribunal decision in June 2013 she would have reclaimed ESA immediately as new health conditions were diagnosed and her health has deteriorated signifcantly since then.”

Did the client notify a deterioration in her health?

Hmmm..

It might be worth an attempt to obtain the SOR for the FTT decision of June 2013 in tandem with a set-aside request (how late was the client when she attended the venue? Was it reasonable for the FTT to have heard the appeal in her absence? etc). You at least have circumstantial evidence that the FTT decision was not issued to the client being as the DWP doesn’t appear to have received their copy either, so there are potentially good grounds for the requests being made late.

If that fails (and in tandem with that whilst it is ongoing) probably the only option is to try to fast-track the WCA process from week 13 onwards (ideally get it through on scrutiny in view of the client’s deteriorating health and obviously substantial current disability).

Unless someone else has a cunning plan…?