Evidence not sent to Tribunal - x2

I don’t do a huge stack of appeals, but they’re picking up.

That’s two in a row now where pertinent evidence sent to the DM at MR has not been included in the papers sent through to the Tribunal Service. 

The one the other week was over a JSA sanction where they did not send through the email from my client’s advisor at Seetec admitting that the sanction was due to their error. The client withdrew the appeal at the last moment, which I was slightly miffed about as you can imagine.

This latest is for an ESA appeal.  Kick ass evidence went in with a submission on each descriptor.  The DM obviously preferred an ESA85 which was full of holes, and didn’t address any of the points in the sub (it was a late MR and ESA is currently in payment on a new claim).  He definitely had it though - I emailed it all through to Balham DRT.

Is it common in your experiences that the DWP are withholding evidence? It certainly looks like it from this end. Incompetence or wilful sabotage?  The Tribunal Service can only suggest I complain to the DWP. What’s the best way forward on this do you think? (Aside from submitting the missing evidence myself to the Tribunal Service, which I will do, obviously)

Thanks

It’s incompetence; the recon is dealt with by the dispute reolution team, the appeal is then allocated to a different office via their virtual deskptop in a different part of the country and relies on the DRT recording what information they used which IME they often don’t.

Or possibly; as happened here recently; they lost it! JCP lost “thousands” of bits of post recently when docs were returned from an outlying office.

There’s talk of another 30k redundancies in DWP… My mortgage will be paid off by then and a career change might be in the offing!

In the majority of cases I’d agree with that assessment - but I’ve got one on the go at present that has given me pause for thought.

It’s an IS overpayment appeal where LTHAW is the issue.

Client’s case is that she and husband separated in late 2010 and were no longer living together. But they have two children together and therefore remained in regular contact. In September 2011 he left London to go to university. During late 2012 they decided to give the relationship another go - he came to stay for 2-3 nights every 2-3 months, but no more than this, even during the long summer holidays. When his degree course finished in June 2014, he returned to London and moved in with my client. Two days later the DWP and police raided her flat, she was arrested and a whole raft of evidence seized.

Decision is that cl was LTHAW and overpaid IS from November 2011 to June 2014.

It doesn’t look good for her. Even by her own statement, she didn’t declare the fact he had moved in immediately (though the delay is only 2 days and so not a massive problem) and there is a whole lot of documentary evidence of his paperwork being sent to her address whilst he was off at university - though again, her explanation that this was because he didn’t want important things like bank statements being delivered to student shared accommodation where there were a lot of comings and goings is not entirely implausible. But most problematic is that she hasn’t been able to come up with the address where he was living immediately prior to his departure for university - and of course, following the DWP raid in June 2014 (where they were both arrested) he has now left her and is being unco-operative.

So crucial to this case is going to be evidence of where he was living - and the state of the relationship - immediately before his departure for university.

The initial decision and MR decision lists a whole raft of evidence seized in the raid - this takes up a side and a half of A4.

Two weeks ago I get the subs and the DM’s list of evidence is only about a third as long. “Oh,” I think, “it’s just that the DM is only listing the evidence they wish to emphasise or rely on - the rest of it will be in here somewhere.”

But no - they’ve only produced the evidence they’ve listed.

And amongst the evidence they’ve seized but decided not to produce are the client’s divorce papers - initially petioned for in April 2011 and decree absolute granted in June 2012. And this much I know about the divorce because the list of evidence in the MR decision is that specific - the client herself was quite vague about dates.

The fact of the divorce is itself highly relevant, but the papers themselves will also show the address at which they were served on him. There are a number of other pieces of evidence that I think might be helpful which the department have decided the tribunal doesn’t need to see…...

Needless to say, a directions request with a reminder of the terms of rule 24 (4)(b) of the Tribunal Procedure rules has already gone in.