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Poor Tribunal decision for FTA WCA - mental health
20:22???!!!!!!!!
Night blindness. So, sometimes it’s easier to go home from the office early whilst there’s light and then carry on for a while after a rest and some food. Don’t do it all the time but when it’s cold, icy and sunny it can be a lethal combination and I’ve lost a little confidence in the past week after going over and bruising my already fragile spine on a piece of black ice so small I couldn’t even see it after the people who kindly stopped to help pointed it out.
Of course people just see you leave the office early and conclude your day is over :)
Sorry to hear about your fall.
I’m not too good on ice myself so I can sympathise.
Hope you recover quickly :)
I’m fine thanks. Just very bruised (physical and ego, obviously) and a tad over cautious.
It was a great fall though. A bit like a cartoon where your feet shoot up in the air. Two cars of people taking their kids to school stopped to help.
Is it me or do these decisions get harsher over time? Fail to attend decision, reasoning in MR notice:
‘Suffering from symptoms of the incapacity claimed cannot be taken as good cause for non attendance as everyone claiming ESA has some form of incapacity and supports this by providing medical evidence from their doctor.’
So you can be ill and not attend, but not with the illness you are claiming ESA for ... !
Needless to say client had provided a Dr’s letter at MR which stated she cannot reliably attend apppointments due to agoraphobia and please can they assess her at home.
The issue is one of not attending a medical examination.
From that I’ve read there is no doubt that the claimant failed to attend an examination arranged.
As such is the DWP decision that the claimant be treated as not having limited capability for work correct.
Was written notice of the time and place for the examination was sent to the claimant at least 7 days in advance?
From that I’ve read there seems no evidence that Medical Services issued the letter as required by the regulations - i.e. is the date more than that required and the address correct?
On the balance of probabilities it does look like the letter was sent by the DWP and the claimant failed to attend the arranged examination therefore the question is did they do so without ‘good cause?’
What is good cause?
“Good cause’ means, in my opinion, some fact which, having regard to all the circumstances (including the claimant’s state of health and the information which he had received and that which he might have obtained) would probably have caused a reasonable person of his age and experience to act (or fail to act) as the claimant did.” - see para 11. attached decision R(S) 2/63
Therefore it does look like the tribunal looked at what the claimant **may** have done or **could have done** rather than what they **did do (or rather) didn’t** and why.
The claimant was well aware of the penalty of not attending a medical assessment due to the previous DWP action.
The evidence showing circumstances of intercepted mail - not lost mail - caused the claimant to not know of the medical assessment.
Statistically, it appears unreasonable to believe that two correctly addressed letters were not delivered unless there are/were issues affecting collection or delivery. There was - there is described theft of mail.
It is not reasonable to expect someone to attend an appointment of which they were not aware of and therefore not knowing of the assessment caused the claimant to not attend.
Or you could just quote lost post - it may be hundreds of thousands of letters but equates to less than 1% (in fact I’ve seen 0.1% quoted.)
Key phrase is “failure”. Not doing something is not the same as “failing” to do it just as a “failure to disclose” was often misread as “did not disclose”. If you didn’t get the post then what’s the failure element?
Just to update but leave to appeal has been refused so now appealing to UT. According to the judge he made clear findings of fact, identified the law and applied it correctly. Ho hum.