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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

Caselaw around the sending of confirmation of appointment letters?

CHAC Adviser
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I’ve got an appeal on at the moment where the client failed to attend a face to face WCA. They had been sent a date originally which clashed with a hospital appointment. Rang up and got it rearranged and were told a letter would be sent to confirm the new date. The also wrote it down but wrote it down incorrectly. Needless to say the letter never appeared. The client then only realised they’d got the date wrong when they rang up to confirm that their assessment was still going ahead as planned having not received the letter to be told it had been scheduled for the previous week and they’d missed it.

DWP have not accepted this mistake as good cause citing that a notification was sent by post to the client (with a screen grab from MSRS showing the rearranged appointment) and that she got the ESA50 beforehand and the BF223 afterwards so it’s reasonable to conclude she got the letter they sent. As that’s pretty much the whole extent of their argument I’m wondering if there’s any caselaw around that which might be helpful in terms of the DWP not being infallible when it comes to sending letters out?

Ros
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CE/4448/2014 looks at case law about the standard of evidence required to prove postage for appointment letters -

http://administrativeappeals.decisions.tribunals.gov.uk//Aspx/view.aspx?id=4840

Here’s also rightsnet summary -

https://www.rightsnet.org.uk/welfare-rights/caselaw/item/print-outs-showing-trigger-dates-can-provide-adequate-evidence-of-posting

CHAC Adviser
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Thanks Ros, though sadly that’s not a good start for my clients case as, on the face of it, my clients case is very very similar!

Elliot Kent
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The better route might be to prove that your client did not receive the letter and therefore had good cause (see SP v SSWP (UC) [2018] UKUT 227 (AAC))

https://assets.publishing.service.gov.uk/media/5b59a972e5274a3fe478c390/CUC_1067_2018-00.pdf

CHAC Adviser
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Thanks Elliot you’re right that does seem like a more profitable avenue to explore.

WRT Case Worker
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CHAC Adviser - 20 August 2019 03:25 PM

I’ve got an appeal on at the moment where the client failed to attend a face to face WCA. They had been sent a date originally which clashed with a hospital appointment. Rang up and got it rearranged and were told a letter would be sent to confirm the new date. The also wrote it down but wrote it down incorrectly. Needless to say the letter never appeared. The client then only realised they’d got the date wrong when they rang up to confirm that their assessment was still going ahead as planned having not received the letter to be told it had been scheduled for the previous week and they’d missed it.

DWP have not accepted this mistake as good cause citing that a notification was sent by post to the client (with a screen grab from MSRS showing the rearranged appointment) and that she got the ESA50 beforehand and the BF223 afterwards so it’s reasonable to conclude she got the letter they sent. As that’s pretty much the whole extent of their argument I’m wondering if there’s any caselaw around that which might be helpful in terms of the DWP not being infallible when it comes to sending letters out?

A useful trick I always try on FTA issues is to get client to phone DWP and ask the call handler, ...what were the last 4 items of correspondence sent to my address, and when were they sent?

Don’t discuss anything else. Make a note of each item, thank them and hang up.

I’ve had at least 3 occasions where the appointment letter was not listed by the call handler and yet correspondence that predated the appointment letter, was listed.

 

Elliot Kent
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WRT Case Worker - 29 August 2019 06:27 PM

A useful trick I always try on FTA issues is to get client to phone DWP and ask the call handler, ...what were the last 4 items of correspondence sent to my address, and when were they sent?

Don’t discuss anything else. Make a note of each item, thank them and hang up.

I’ve had at least 3 occasions where the appointment letter was not listed by the call handler and yet correspondence that predated the appointment letter, was listed.

The reason for that is straightforwardly that the appointment letter is not sent out by the DWP so isn’t on their records. It’s sent by medical services (Atos or whatever they are calling themselves these days) so records of appointment letters are on a different system which the call handlers won’t have access to.

WRT Case Worker
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That is true, Elliot, but on FTA, a Decision Maker will have requested from Medical services, confirmation and details of the notification. From that point a record of the correspondence, not necessarily the letter itself, will be with DWP.

I have also had confirmation from call handlers that appointment letters have been sent.