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Forum Home  →  Discussion  →  Decision making and appeals  →  Thread

DWP failure to provide appeal papers

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ClairemHodgson
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Mike Hughes - 25 July 2019 09:35 AM

That definitely appeals :)

and if you’re feeling really nasty, pray in aid the Denton criteria (easily googled).  yes that’s civil, but the overriding objective is the overriding objective and i anticipate the CofA would say, if asked, it applies in tribunals as well….

CHAC Adviser
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Paus17 - 25 July 2019 12:07 PM

I’d be interested to know if anyone has used this rule successfully. I suspect what is likely to happen is that the tribunal will list the case for hearing and if the DWP do not produce the papers they will go ahead and decide the case on the merits on the basis of whatever they have, which will be whatever the appellant produces and says, plus the MRN. (If the appeal was lodged on paper. If it was lodged online they won’t even have the MRN.) They won’t need to use rule 8 and may well avoid using it to prevent DWP having a right of appeal against decision to invoke the rule. That approach would also be more in line with the tribunal’s inquisitorial role.

I have had the DWP barred from a hearing once before but the Tribunal demurred when I invited them to make a summary judgement. To be fair to them I believe the reason the were unwilling to decide the matter summarily was to avoid the risk of a DWP appeal as you identify (the judge phrased their refusal “not wanting the appellant to win on a technicality when they could do so via the usual process” and sure enough we won handily). Still, that was a case where the DWP had at least provided a response they then just failed to comply with any directions whatsoever afterwards!

It would surely have to be a brave appeal officer who tried to take a case to Upper Tribunal in such circumstances though I’d have thought.

Dan_Manville
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ClairemHodgson - 25 July 2019 12:08 PM
Mike Hughes - 25 July 2019 09:35 AM

That definitely appeals :)

and if you’re feeling really nasty, pray in aid the Denton criteria (easily googled).  yes that’s civil, but the overriding objective is the overriding objective and i anticipate the CofA would say, if asked, it applies in tribunals as well….

You know Clare, many moons ago you linked to a decision where those criteria had been applied by the UT to a late appeal where the rep had been too busy to deal with it in time.

The broader context to which those criteria might apply could make for mischief going forward…

ClairemHodgson
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I’d forgotten doing that….

anyway, always worth bearing in mind…...

particularly with the DWP being the ones caught out….

ClairemHodgson
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ClairemHodgson - 25 July 2019 02:01 PM

I’d forgotten doing that….

anyway, always worth bearing in mind…...

particularly with the DWP being the ones caught out….

and here is the thread:

https://www.rightsnet.org.uk/forums/viewthread/11151/

 

WRT Case Worker
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CHAC Adviser - 25 July 2019 08:28 AM
John-Paul - 23 July 2019 10:24 AM

I now have two hearing dates in August where we have received absolutely no correspondence/papers from the DWP. The Tribunal Service in Glasgow have sent Directions Notices requesting a response and compelling that a PO attend the hearing.

Has anyone gone through with a hearing in these circumstances? If so what was the outcome?

It’s not happened to me yet(!) but if it did I would be minded to request the Tribunal bar the DWP from taking further part in the proceedings under rule 8 (striking out appeals). It seems a slam dunk to me in that regard. The DWP have failed to comply with directions, they’ve failed to comply with rule 24 (responses) and they’ve made a mockery of rule 2 (overriding objective and duty to cooperate). I’d then ask that the Tribunal decide the issue summarily in the appellants favour (again as per rule 8) on the basis of the evidence of the appellant and/or your submission.


That would be my approach on day 29. No question.

MM1234
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All our appeals are scheduled through Glasgow. At least twice a week we get a direction stating that no submission has been received and can we send in anything that we have for instance a PIP2 or an UC50. Up until now we receive the submission eventually so the appeal proceeds as usual.

I have last week done my first UC without a submission and without GP records as they were not sent to us via a GDPR request.

No presenting officer attended and they had not made an adjournment request.

The tribunal suggested that the best way to proceed bearing in mind rule 2 was to take evidence from the client. We agreed to this as the alternative of adjournment and a further unknown period of delay seemed to have no attraction as despite his problems the client I judged would be able to answer straightforward questions.

He was awarded what we were seeking and I doubt if they do ask for a full statement that they would take it further
no po, no request for an adjournment, ignoring time limits without explanation and of course tribunal entitled to take client’s evidence no requirement for corroboration.

Chris Orr

Peter Turville
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Peter Turville - 20 March 2019 12:41 PM

we are seeing similar delays with ESA/PIP/UC/TCs - but ASC Birmingham are pretty hot on issuing Directions to the relevant respondent.

Unfortunately as the service at Birmingham deteriorates further we are now having to chase HMCTS to issue Direction to DWP which further delays listing.

One of the delays appears to be that a Direction to DWP can only be issued by a judge. This means 1st the appeal has to be picked up by a clerk due to the delay and then referred to a judge whre it then sits in the pile of interlocutary cases before a Direction is issued. As these often give DWP a further period for providing a response before a clerk is instructed to list without a response the time scale is often at least 3 months from the date the appeal was registered before it is sent to a clerk for listing (then add 5-6 months to the hearing date).

Given the frequency of this issue now it would appear appropriate for HMCTS to develop a ‘streamlined’ process for issuing such Direction / go straight to listing (given that a response is often provided before the date of hearing).

neilbateman
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I had a large and contentious overpayment appeal about 8 years ago where DWP failed to send a PO despite being directed to do so.  The Judge asked the clerk to phone DWP to ask where the PO was and was told she would get a call back within 48 hours!  A truly delicious experience.

The Judge was absolutely furious with DWP and allowed the appeal in full on the grounds that the DWP had failed to discharge the burden of proof (there being other flaws in the DWP’s poor written submission).  DWP never appealed.

Peter Turville
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neilbateman - 07 August 2019 10:17 AM

I had a large and contentious overpayment appeal about 8 years ago where DWP failed to send a PO despite being directed to do so.  The Judge asked the clerk to phone DWP to ask where the PO was and was told she would get a call back within 48 hours!  A truly delicious experience.

The Judge was absolutely furious with DWP and allowed the appeal in full on the grounds that the DWP had failed to discharge the burden of proof (there being other flaws in the DWP’s poor written submission).  DWP never appealed.

The impression I have formed including from having attended a district TUG meeting a few weeks ago and having an ‘aside’ discussion about the general woes of DWP / HMCTS with a district judge yesterday during a hearing (because the interpreter booked by HMCTS with Big Word for the hearing had failed to attend yet again) is that judges are well aware of (and frustrated by) many of the administrative shortcomings of HMCTS - but do not get such a clear picture of all the problems with DWP that occur before the case reaches a tribunal (including cases where the case has been listed without submission etc.).

In other words they do not see the scale of the routine administrative problems with DWP (and the new ones with UC) that advisers deal with day to day and that we resolve before a hearing (but which may have significantly delayed the case) or the claimants who just ‘give up’ due to administrative problems long before the appeal stage.

The Judge has now Directed a PO to attend in my case (to see if the PO can ‘shed any light’ on the DWP’s inability to supply evidence of previous decisions in the case!).

Dan_Manville
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Peter Turville - 06 August 2019 09:27 AM

One of the delays appears to be that a Direction to DWP can only be issued by a judge.

Did they tell you that? I saw a considerabel increase in these directions being issued when they started being made by registrars rather than Judges.

Looking at the last case I can recall this happening on it was a registrar that made the direction.

Peter Turville
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Dan Manville - 12 August 2019 04:22 PM
Peter Turville - 06 August 2019 09:27 AM

One of the delays appears to be that a Direction to DWP can only be issued by a judge.

Did they tell you that? I saw a considerabel increase in these directions being issued when they started being made by registrars rather than Judges.

Looking at the last case I can recall this happening on it was a registrar that made the direction.

Sorry, not making myself clear in a senior moment! I meant judges to include registrars. Why can’t they be issued by clerks in the form of a reminder rather than the formality of a direction (given how long it can take to put the case before a judge/registrar and then for a direction to be issued). I know that wouldn’t have the same legal status but in practice would that make any difference to the likelihood of DWP/HMRC complying with the deadline?