No ESA arrears due to failure to attend WFIs

I recently picked up an ESA appeal for someone who moved into the area, causing longer than usual delays in listing (the decision was from 2009).  The appeal was successful, and we advised level of arrears to be expected.  When these were not received, we chased up the problem, to be told that she had failed to attend WFIs back in 2009, before the failed WCA, so her WRAC would be sanctioned throughout, and could only be reinstated now when she booked and attended an appointment with local JC+.

This might be a bit disappointing for the successful appellant (particularly with her eviction looming) but I can see why the DWP are saying what they do.

A colleague (none other than Mr John Birks, well known in these parts)  tells me he successfully appealed an issue such as this, in that the reduction in ESA is not routinely notified to the claimant, so could appeal the amount of ESA payable and let the tribunal to come to own conclusions about complying with WFIs.  Trouble is, ‘decision’ was outside absolute time limit, and it strikes me as something that’s worth a try, but might not work.

Anyone got any other ideas?

If a decision was made that was not notified to the appellant, the “decision” does not “...have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so.” - R v SoS Home Dept & anor ex p Anufrijeva [2003] UKHL 36 - para 26.

Until a decision has been notified, any time limit for appealing doesn’t start to run - LB Camden (resp) v Martin (appel) [2009] EWHC 2040 (CH) - para 8..

Both “Anufrijeva” and “Martin” are on http://www.bailii.org.

Based on the info given, your client still has the right of appeal.  Expect the DWP to be obstructive and be prepared for the possibility of having to bypass the DWP to make the appeal directly to HMCTS (citing rule 24 of the FtT Procedure Rules and R(H) 1/07 - para 34 - in support (remember to acknowledge that this CD was decided before the introduction of the 2008 rules but argue that the principle holds good).

I had a case exactly like this recently. I argued as per Kevin and rather to my surprise they paid up the full arrears due almost by return of post.

Thanks for helpful responses.  Fingers crossed.