DWP misleading tribunals?

We have noted a growing trend for the DWP to provide only selected evidence that led to a the previous WCA outcome decision that the one currently under appeal has superseded.

Usually the DWP only copy the previous ESA85 (HCP report) into the bundle but nothing else. A previous ESA85 usually recommending a score of less than 15 points! But DWP is not including the actual decision that followed, or the subsequent MR or favourable decision of the previous tribunal.

In the submission the DWP fail to mention that the decision superseded was that of a tribunal. Often the submission states the decision being superseded is one made prior to that made by the previous tribunal (i.e.
from the WCA prior to the one overturned by the previous tribunal).

It seems unlikely that this is a simple, if frequent, failure to understand / comply with Rule 24(4)(b) on the part of appeal writers.

Yes.

Commonplace.

Unable to say if the reasons are oversight, ignorance or nefarious.

Same down here too!

Feels like we are forever, helping client’s submit SAR’s to get the missing info!

Yes.  This is despite of DMG Vol 1 Ch 6: Making appeals and staying- following paragraphs:
Chapter 06 - Making appeals and staying

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/603006/dmgch06.pdf

06331   The response should 1. focus on the circumstances that existed at the time that the appealed decision was made and 2. deal solely with the issues raised by the appeal. 
06332   The response writer should adopt the role of friend of the court1. This means that
the response should
1. give proper emphasis to points in the claimant’s favour and
2. deal with any unresolved points put forward by the appellant. Account should
be taken of these even if they are, in the response writer’s opinion, only
vaguely relevant to the question at issue.
1 R(I) 4/65, Appendix
06333   Along with the appeal response, the DM must also provide
1. a copy of any written record of the decision and any statement of reasons for
that decision, if they were not sent with the appellants notice of appeal
2. copies of all other relevant documents that the Secretary of State holds
3. a copy of the notice of appeal, any documents provided by the appellant with the notice of appeal and the name and address of any representative the appellant may have1.
1 TP (FtT) (SEC) Rules, rule 24(4)
06334   Unless the FtT has made an order prohibiting the disclosure of certain documents1 (see DMG 06287 et seq), the DM must provide a copy of the appeal response and any other papers to each other party to the appeal. If the party has a representative then they must be provided with a copy of any papers and therefore there is no need to provide them to the party2. If they wish, the appellant can then make a written submission or supply other documents in reply to the DM’s appeal response3.
1 TP (FtT) (SEC) Rules, rule 14; 2 rule 11(6); 3 rule 24(5)-(7)

When the decision under appeal is the most recent one, the SoS submission invariably includes both the claimant’s ESA50 questionnaire and the ESA85 HCP report, so that the tribunal has both “sides” of the story.  If ESA85s from previous assessments are included, there is never a copy of the matching ESA50.

If we have a copy of a previous ESA50 we always submit that to the tribunal to balance the ESA85.

We have had this a lot recently. In one case, the document’s provided (which was a copy of a previous medical report only) indicated that the HCP had decided the client merited 15 points and appeared to suggest she was in the WRAG (no formal decision provided). Client was insistent she was in Support Group. Lo and behold, upon further investigation, she had been placed in the WRAG, submitted an MR, had the decision superseded and WAS placed in the Support Group by a new DM (who was also less than complimentary about the original DM’s decision!). Needless to say, this was not in the papers either.

As it turned out, the decision the Secretary of State was attempting to supersede was the decision to place the client in the WRAG. However, this had already been superseded by another DM, placing client in Supp Gp!

Tribunal Judge was less than impressed and adjourned for all paperwork and an explanation from DWP as to what they were up to! Paperwork now received and STILL does not contain the superseding decision placing client in Support Group. We only know it exists because client gave us a copy!

Have taken to writing to DWP asking for a submission that addresses the grounds for appeal and supporting evidence rather than just what was considered at MR. This appears to have confused them greatly.