No appeal rights?

Would be really grateful for a second opinion. We have a client who called up ESA to make a claim and lodged this effectively. She has learning difficulties and mental health issues. She then called up ESA on the same day and wanted to withdraw the claim and claim ‘Income Support’ instead. She didn’t make the claim and wouldn’t have met any of the criteria to receive it.

We submitted an MR on the basis that she is vulnerable and they should have interrogated more whether she’d meet the criteria and therefore whether withdrawing was appropriate. DWP aren’t buying this and say there’s no appeal rights. I am mulling over whether to submit to tribunal and ask a judge to assess whether it should hold appeal rights, or formal complaint, or both.

What do people think? Any legs??

Not sure there’s a decision by the SoS?  I would have thought there needs to be a decision before you can have MR/Appeal rights.

Where a claim has been withdrawn before a decision can be made then it should be recorded as claim withdrawn, no further action required.  Thus, there is nothing to adjudicate on and no entitlement decision needs to be made.  And, as John says, there has to be a decision for there to be appeal rights.

So the decision to allow the claim to be withdrawn is straw clutching..?

I’m not sure what you mean by the use of the word “allow”.  The DWP doesn’t allow anything.  Withdrawing a claim is a person’s statutory right and we would be in very dangerous territory if the DWP were to put itself in a position to start exercising discretion as to what circumstances it should be attempting to frustrate that right without a statutory power to do so.  Some of us would not want to give it that statutory power either.

Whether it is in the best interests of a claimant to withdraw a claim is a different matter.  Should the DWP be required to carry out some kind of capacity test?  And how would that be done?  That of course works both ways as you then open up the door for carrying out a capacity test to make the claim in the first place.  It all starts to get very messy and complicated if you start down that road. 

At a stretch, I suppose in some extreme cases, it could be argued that it should have been obvious to the DWP officer to have been alert to the question of whether an appointeeship issue should have been raised.  That would be very difficult without the officer seeing the person face to face of course.  I’ll leave that thought there.

It’s implicit in R(H)2/06 that there is a right of appeal against a refusal to award benefit on the basis that the claim was validly withdrawn - and rightly so. Whether a particular action amounts to a valid claim or not is well within the jurisdiction of the FtT (see e.g. Novitskaya v LB Brent [2009] EWCA Civ 1260) and I cannot see any reason at all why it makes any difference whether the question is the initial validity of a claim or whether a formerly valid claim has been effectively withdrawn. So it seems to me that you do have a right of appeal.

However, I think it is very unlikely on the facts that you have provided that you would win that appeal. R(H)2/06 also sets out that an unambiguous statement that you wish to withdraw a claim will be effective even if this proves in hindsight to be unwise. The suggestion seems to be that you would have to show something in the order of “fraud, misrepresentation of fact or law, or duress” (CJSA/3979/1999, para 26) in order to succeed on this argument. I think you could probably add a lack of legal capacity to that list. It seems unlikely that your client’s circumstances are severe enough to reach that sort of threshold.

Get hold of the telephone recording in which your client withdrew her claim.