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

Poor Tribunal decision for FTA WCA - mental health

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JojoMitchell
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Hello everyone

It shouldn’t cease to surprise me of some decisions made by FTT but this one shows no moral sense (in my view anyway).

My client has Bipolar Type II, has 7 children of school age and has suffered abuse from her ex-partner.  She failed to attend a WCA in May 2017 and her reasons were accepted by DWP - her husband had access to her post and they accepted that she did not receive the apt letter.  She then was invited to a second medical in June 2017 and again she did not receive the letter.  DWP disagreed as she used the same reasons as before and the FTT today dismissed her appeal stating that “the appellant gave the same reason for failing to attend.  She was unable to demonstrate other mail going missing and nor able to demonstrate that she had taken any meaningful steps to ensure the risks of her mail going missing was minimised or put in place any alternative means of obtaining her mail”.

The client took an injunction out but her ex was using friends to collect the mail and has put up security cameras.  The postbox is at the end of a path and is easily accessible.  She tried to secure it by nailing part of it down.

I’m going to request a SOR but am astonished that safeguarding issues were not considered (which we outlined in our MR, appeal and Submission) and her mental capacity to be able to make other arrangements.

I would be interested in people’s views.

Thanks!

John Birks
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Yes -  more could have been done to secure the post.

No - I don’t think the reasoning is reasonable given the described circumstances.

JojoMitchell
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Thank you John!  It seemed unfair considering her circumstances.

Mr Finch
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It’s surely a bit difficult to demonstrate other post going missing, when it’s really only the one thing that triggers this kind of consequence, and is therefore something you know about.

Also, was there a doctor on the panel? https://www.rightsnet.org.uk/forums/viewthread/12345/

Mike Hughes
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Suggesting that something more could have been done to secure the post is wholly irrelevant and effectively rewriting the law by adding in an additional consideration. There’s no requirement to show that other post goes missing. I’ve had a number of cases around similar over the years. Amongst similar suggestions were that the post probably hadn’t gone missing because

- the client had not reported it as missing!!!
- the address was not known as an unsafe address.
- the area was not red-lined as unsafe.
- they couldn’t “prove” it had gone missing.
- client not a credible witness because very little post goes missing.
- it can’t be missing because the computer record shows something happened.

Every single one either won at FTT quickly or overturned by UTT and replaced with a decision that there was no FTA. I think maybe one was returned to FTT. Most won inside 10 or 15 minutes. The record was 3 minutes I think.

For one of the latter ones I used a great couple of paragraphs pulled from a book on statistics which explained what “random” meant and combined it with an article on the Royal Mail showing the paucity of their methodology to identify the quantity of missing post. FTT didn’t accept it. UTT praised it but emphasised that it would still turn on the credibility of the appellant, which I didn’t have a problem with.

ClairemHodgson
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bottom line is that you only know something is missing when you are asked why you didn’t respond to it.  and don’t tell me that FTT members haven’t had post go missing - we all do!

John Birks
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SH–v-SSWP (ESA) [2014] UKUT 574 (AAC) (CE/3989/2012)  - printouts of the type in issue are capable of providing evidence from which a tribunal may draw inferences that a document was “sent”.  It is then for the tribunal of fact to decide what weight to put on it.” (my underlining added for emphasis).

also see the attached.

I think it is important to point out this case is one of ‘good cause’ rather than ‘lost post.’

I don’t think there is any argument made that the DWP failed to discharge the duty to notify the appellant.

That seems to have been accepted as what’s argued is the letter sent was intercepted - a criminal act - and the contents were therefore unknown to the recipient.

Regulation of Investigatory Powers Act 2000

1 Unlawful interception.
(1)It shall be an offence for a person intentionally and without lawful authority to intercept, at any place in the United Kingdom, any communication in the course of its transmission by means of—
(a)a public postal service;

https://www.legislation.gov.uk/ukpga/2000/23/section/1

So I’d say the question is; Having had ones post intercepted illegally, does one have good cause for not attending the medical arranged and notified in time by the SSWP?

I’d guess yes, it could be good cause.

The appellant made some steps to secure the post - could more have been done? With hindsight, Yes - However, were the steps taken reasonable despite the failure? I’d guess it’s yes again but it depends on the circumstances.

Taking into consideration the circumstances as described it does look like the appellant had ‘good cause.’

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Mike Hughes
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You’d guess!!!

What steps ought I to take after 1 single piece of post goes AWOL?

What could possibly be unreasonable about doing nothing about that because statistically it is easily demonstrable this will happen to most people in the country every year.

I have yet to come across a case where lost post did not amount to good cause for a failure to attend.

John Birks
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I have to guess as can’t ‘know.’

I’d only ‘know’ if I was in the position to make the decision.

past caring
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Mike Hughes - 26 January 2018 11:43 AM

You’d guess!!!

What steps ought I to take after 1 single piece of post goes AWOL?

What could possibly be unreasonable about doing nothing about that because statistically it is easily demonstrable this will happen to most people in the country every year.

I have yet to come across a case where lost post did not amount to good cause for a failure to attend.

I suppose it depends on the circumstances in which it goes missing.

If it’s a case of it going AWOL, then probably nothing and you put it down to bad luck. But if, as here, you know (or at least strongly suspect) it hasn’t actually gone AWOL, but rather has been intercepted by a stalking ex-partner, it would be reasonable to do something.

I’d be arguing that what was actually done - getting friends to collect the post, installing CCTV and obtaining an injunction were all very reasonable steps. And given that issues of ‘good cause’ are subjective, not objective (‘the claimant’, not ‘a claimant’) I’d be arguing that the steps taken were clearly ones that required a degree of determination on the part of the claimant - she was already suffering from depression and anxiety and this can only have been exacerbated by the ex’s behaviour.

Moreover;

- if first instance of postal interception occurred in May, how soon would one expect the claimant (given her health problems) to have been able to put effective measures in place? By June, when the second letter was sent? Something of a stretch, I’d say.

- I would turn it on it’s head. The DWP accepted ‘good cause’ for the first letter - i.e. it accepted the ex’s interception of the post as a reasonable/likely explanation for the letter not being delivered to the claimant. This kind of behaviour is almost never a ‘one off’ - the type of stalking, misogynistic people who indulge in it keep on doing so until stopped. That being the case, what reasonable steps did the DWP take to ensure a vulnerable claimant was made aware of the next appointment? Did it text? email? make a phone call? If not, why not? Why did it think, given what it had already accepted had happened in May, it was simply ok to chuck another letter in the post a few weeks later?

[ Edited: 29 Jan 2018 at 11:36 am by Stuart ]
Mike Hughes
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Good post.

JojoMitchell
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Thank you everyone for your comments and advice.

To answer one question - there wasn’t a medical member at the hearing.

If anyone would care to share with me their leave to appeal to the UT on this matter it would be much appreciated. 

The judge even told the client that when she had tried to secure the postbox by nailing it that this was in fact a repair and not making it secure…!

Thanks everyone again :) 

Mr Finch
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In previous submission I’ve asked tribunals not to fall into the trap of asking what a model course of action would be, rather than whether someone might reasonably have acted this way. It sounds like your tribunal might have fallen into this trap.

John Birks
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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.)

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Mike Hughes
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Figures for lost post are laughable. They’ve no real idea. They just clock complaints.

John Birks
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20:22???!!!!!!!!