Pulp sang ‘Help the aged’ but the Secretary of State says no cos they are too old, and isn’t ‘contractually obliged’ and don’t have the ‘infrastructur
I think there is a point of construction. DWP are saying that the Tribunal has power to direct an assessment by a DWP-approved practitioner, and no such person exists for the purpose of AA and pension age PIP cases, therefore a direction cannot be made. They are saying the power to direct only applies insofar as there already exists an approved person to do it.
The alternative view is that the Tribunal has the power to direct an assessment, full stop, but it is for DWP to approve who does it - the Tribunal cannot appoint an examiner over DWP’s head when using that powder of direction. If there is no-one currently approved, they had better approve someone.
The obvious point is that directions are mandatory orders. You don’t get to just give some excuse and then they go away. There would need to be a request for the directions to be varied or set aside, or for compliance to be waived, or an appeal against them attempted. It doesn’t appear from your write up that any of these things have occurred. “Sorry guys, no can do” is not a valid response - its an egregious rule 2 breach.
If that is the case, I would be minded to write to the Tribunal requesting further directions that unless the respondent either complies with the directions or formally challenges them within (say) 28 days, they should be barred from further participation in the appeal as under rule 8 and the Tribunal should then proceed to consider summarily determining the remaining issues against the respondent.
I would add that this is just as true even if it is right that the FtT does not have the power to make the directions it did. They still need to be properly challenged.[ Edited: 29 Apr 2021 at 12:12 pm by Elliot Kent ]
Thanks Peter and Elliot for your responses really appreciated!!!