Time limits Late appeal

Hi all,

Recently tried for a very late appeal which was forwarded to FtT. DWP maintain they sent client decision on 3/10/2011. Asolute 13 month time limit would therefore be 3/11/12. We sent GL24 o 30/10/12 but DWP maintain they did not receive it until 05/11/2012. Tribunal refused late appeal accepting decision was issued 3/10/11 but maintaining appeal is out of time because it was not received by DWP until 5/11/12 “...as is clear from the date stamp impressed on the appeal form on receipt.”

Client maintains she never received the decision at all and only became aware that she had been tranferred to ESA when time-limiting kicked in.

We sent copy of our post book as evidence as to the date GL24 was sent to DWP and just seems unfair that FtT use date on issue for DWP decisions but date of receipt for our appeals.

I can’t find any legislative provision stating which it should be. Anyone know or any ideas?

Thanks in advance,

JT

The appeal must be ‘received’ within the relevant time limits (rule 23 of the Tribunal Procedure Rules).  If the DWP can show that the decision notice was sent out to the claimant then the claimant has to show that she never received it.  If the DWP never sent a decision in the first place then the clock which starts the time limit to lodge the appeal is yet to start running.  See Anufrijeva v Secretary of State for the Home Department (2003) HL.

Remember that you do have a right of appeal against this sort of tribunal decision: could I ask whether the notice that you were sent by the Tribunal Service which included the decision saying the appeal was not admitted included details of your right to ask for a statement and your right of appeal to the Upper Tribunal?

In my experience the Tribunal Service do not notify claimants of these rights when they have made a decision to strike out cases/not admit an appeal etc.

Hi Nevip-

isn’t the claimant deemed to have received it if the DWP can show it was sent? there is a nasty rule in SS&CS;(D&A) Regs- reg 2(b).

Hi Martin

Yes, you’re quite right.  I’d forgotten about the harshness of that regulation.  I’ve looked up a lot of case law on the point, particularly Haringey v Awaretife, and it seems pretty decisive.  I guess I was thinking in terms of that if the claimant could evidence non-receipt (where the last known address point is not in issue) then that could be decisive in showing good cause, where the statutory context allows, or could be a decisive factor weighing in consideration of whether to admit a late appeal.  Of, course if outside the absolute time limit then that would be of no assistance whatsoever.

JT - 17 January 2013 02:23 PM

she.. only became aware that she had been tranferred to ESA when time-limiting kicked in…

The clock for appealing surely only starts to run from the effective date of the conversion decision which is usually at least two weeks after the date of the letter notifying of the outcome (ie 2 weeks after 3/10/11 which would make the 13 month deadline around 17/11/12).  At least that’s the case when someone fails the WCA.  I’m not sure if the outcome letter goes out as early where, as here, the claimant passes the WCA on conversion, albeit being placed in the WRAG. 

It seems you’re appealing in order to get her into the support group and thereby retain her CESA.  Why doesn’t she just make a new ESA claim now if you think she’ll get into the support group?  Even if the late appeal was accepted the same argument about support group status would have to be had in that appeal.  Yes she’d get an extra £5.90 per week (ie the difference between the support component and the WRAC) backdated to Oct 2011 if you were successful with a late appeal (it’s even possible that the EDP that would be included in her applicable amount on being put in support group might get her some backdated IRESA also, but I suspect the same reason she’s not on IRESA at present - eg working partner, too much capital, would still prevent any arrears of IRESA even with an EDP).

If she gets into the support group on a new claim then the new award is deemed to be contributory ESA -see section 1B WRA 2007.  The DWP call this the deterioration route but that’s misleading in my view because there’s no need whatsoever to show that the claimant has deteriorated since the date her CESA was time limited.  The effect of Reg 10 Decision and Appeals Regs is that the result of the LCW assessment (which she passed on conversion by scoring 15pts) is conclusive at least until a new LCW assessment is carried out.  However, there is no equivalent of Reg 10, as far as I can see, re LCWRA.  I don’t think Reg 10’s reference to “any further decision” includes a decision re LCWRA.  So even if the DM refused to send her for a new medical and simply relied on the Oct 2011 medical as the basis of his WCA decision re the above new claim, there’d be nothing stopping the client firstly appealing the new decision in the normal way and secondly nothing stopping the tribunal putting her in the support group re that claim without any deterioration in her condition.

Reg 10 above allows her to continue receiving LCW credits following time limiting without having to put in sick notes.  It’s section 17(2) SSA 98 which is authority for the Oct 2011 LCWRA determination not being conclusive for the LCWRA determination re a new claim.

I’ve looked at the law on the first point of my above post, ie when the clock starts to run for appealing a conversion decision.

Unless stated otherwise, the Regs referred to below are those of the Conversion Regs (and apologies if you know this stuff already).

Reg 5(5) provides that the claimant (P) must be notified of the conversion decision.  But the conversion phase itself doesn’t end until “immediately before the effective date of the conversion decision notified to P” – see Reg 5(6). 

Reg 13 provides the formula for working out the effective date.  You, in effect, take the date P is notified as above and add at least a fortnight to it (the exact amount of time that you add depends on whether or not P’s IS and/or IB was paid fortnightly).  But the important point for present purposes is that the effective date of conversion is, by law, at least 2 weeks later than the date of the above notification letter.

But none of this directly helps with answering the question of when the clock for appealing starts to tick.

Reg 28 Decisions and Appeals (D&A) Regs provides that a person WITH A RIGHT OF APPEAL (my emphasis) either under the SSA98 or the D&A Regs shall be given written notice of the decision against which the appeal lies.

So, do you have a right of appeal against a conversion decision BEFORE its effective date under either the SSA or D&A? I think the answer to that is no. That’s simply because, whilst the SSA and D&A apply, by virtue of Reg 6 Conversion Regs, to the making of a conversion decision, ie before the conversion phase ends, the SSA itself is specifically modified only AFTER the Conversion phase has ended by virtue of para 5 of Sch 2 to the Conversion Regs.  The modification concerned adds “a conversion decision” to the list of appealable decisions found in Schedule 3 SSA.  That clearly implies that until the end of the conversion phase (as defined above) there is no right to appeal against the conversion decision.

Consequently, whilst P has to be notified at least two weeks’ in advance of the conversion phase ending, his right of appeal only arises after the conversion phase has ended, ie at the effective date of conversion.  So the clock for appealing couldn’t logically start to tick before the latter date.  Does anyone have to hand the relevant wording of the notification letter?  I know the letter informs the claimant of their exact effective date.  But does it say the time limit for appealing is one month from that date or one month from the date of the letter itself?  In light of the above, only the former would be right in my view. 

JT, it also means your appeal was within the 13 month limit.  I’d return to the tribunal. 

Edit: Even if I’m wrong, it’s arguable on the present facts that the 13 month deadline was 5/11/12 anyway.  That’s because 3/11/12 was a Saturday and the effect of Rule 12 Tribunal Procedure (F-tT) Rules is to extend the deadline to the next working day, ie 5/11/12.

Tom,

Very interesting arguments and I think I would have to agree. Certainly it is not clear within the Regs when the time begins to run and therefore it cannot hurt to put this forward as an argument. 

Your final point on the 03/11/2012 being a Saturday, I had completely missed this! Ever failed to see the wood for the trees? Arrrrh!

Thank you, you have given me much food for thought and I may yet return for more critical analysis of the point.

Our Unit has just had an enquiry from a service user who had received an ESA3 form.  She rang ESA and was told that her son who has learning disabilities was migrated to ESA last January and has received his 365 days of contributory ESA and therefore to continue to receive payment the ESA 3 needed to be completed to enable them to do a means test.

She informed them that she had not received any correspondence from them or contact to inform them that they were being migrated - no phone call; no ESA 50;

She then rang IB who informed her that her son had been migrated over to ESA this year and that his first payment of ESA was on the 7th February.

She contacted ESA again to ask for an explanation and clarify the discrepancy and was informed that their computer system had to be rebuilt which has caused the discrepancy with the dates.

I am in the processs of obtaining further information, but have requested written confirmation from IB of date of transfer - it is worth a try in this case to establish if IB have transferred payments.