Conflicting evidence of previous ESA award, grounds for a supersession being of no effect?

Client with MH issues found fit for work, appealed, but failed to attend FTT who rejected the appeal. Has now approached us for advice. We have asked for a set-aside, in part on the basis that cl says was previously in the Support Group, the DWP’s evidence did not include any previous WCA evidence, and the old ESA85s etc should have been provided as per CE/829/2012. (The FTT did have the current ESA50, ESA85, and an ESA113 however.)

We have no award letters saying client was in the SG, but do have bank statements showing what I can only make out to be SG level ESA (less a third-party deduction) in payment during the relevant period. Also, the DWP previously confirmed to us by telephone that client was in the SG before the decision under appeal.

However, the DWP have now responded to our set-aside request to state that the client was never in the Support Group at all, and at two previous assessments was found to not have LCW.

We’re a bit baffled by the discrepancy. In the event that the DWP have somehow lost their records of the client being found to qualify for the SG, what is the best we can make of this? Can we argue that: given cl was clearly (in our opinon) placed in the SG, then the DWP can have no basis on which to supersede that decision with their faulty evidence of our client’s improvement, i.e. he should be restored to the SG forthwith?

Or should we realistically be looking for a new hearing (client to attend this time), possibly after a further adjournment for both parties to find further evidence? Any other tactic to try?

Thanks for the reply Tony.

Client didn’t ask for an oral hearing. I’ve seen CE/1421/2012 which is similar to our client, though in that case the appellent asked for ‘special arrangements’ on the enquiry form, which the FTT didn’t consider when they decided it was just to proceed on the papers.

The ESA amount was consistent with Support Group, less a standard 3rd party deduction, but you’re right, there might well be some other permutation to explain it. Though I can’t think of any that is consistent with the DWP’s assertion that the cl never got past the assessment rate. I’ve just asked the tribunal to assume we’re right, unless the DWP can account for the level of payment into the client’s bank account.

We have raised other flaws in the statement of reasons which I hope would get it set aside anyway, but it seems important to know what the previous award was.. and it’s bizarre of the DWP to give conflicting information on that. We’re going to try a DPA request for the clerical and computer records, maybe that will shed some light.

Edit: postscript, for future reference: after a set-aside on other grounds, cl placed back in the Support Group. We obtained definitive evidence that the previous assessment also placed cl in the SG, i.e. the submission by a DM to the FTT saying otherwise was simply false. Complaint in, re misleading information and witholding evidence contributing to a potential miscarriage of justice.
... and client awarded £50 consolatory payment.