Failure to attend assessments - PPE v Secretary of State

Following on from a similar but obiter outcome in PIP, Judge Poynter has held that the stock ESA appointment letter to attend a medical assessment is insufficiently clear to create an obligation on the claimant to attend.

https://assets.publishing.service.gov.uk/media/5e6a5278d3bf7f269e22a15b/CE_2126_2018-00.pdf

(What I also find noteworthy is that the claimant in PPE gave an apparently valid explanation, which was refused on the basis they didn’t supply medical evidence. However the BF223 asks for a reason, and doesn’t mention anywhere that you need to send medical evidence - wheels within wheels almost.)

This is amazing. As I read it, then no-one who fails to attend a medical for any reason whatsoever, can have their ESA stopped until such time as the letter is amended to make the legal duty absolutely clear. Do others agree?  Is anyone aware of a change to the letter (which I think would come from ATOS, not the DWP?) ?

Yes, this is correct.

The SSWP must provide a copy of the letter inviting the claimant to the assessment in the bundle so that the FtT can adjudicate on whether or not it created a binding obligation to attend.

If this is not provided, then the FtT can either adjourn for it or hold against her.

The standard form letters used for PIP and ESA are not written in terms which create a mandatory requirement to attend and therefore cannot be the foundation of a decision to refuse/end benefit.

The claimant therefore does not need to show why they didn’t attend; it’s enough to say “as a matter of law, I had not been required to”.

The letters will presumably be changed ASAP…