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Lost appeal papers

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6 years 9 months ago #191138 by Matsarh
Lost appeal papers was created by Matsarh
Hi there
I have recently met someone who has been on assessment rate ESA since 2011. She failed a WCA to migrate to ESA and lodged an appeal, then continued to supply the med certs and waited for a hearing date. This never came, but due to her mental health problems she never questioned this. A few weeks ago I rang DWP to ask why and they said they were waiting for an appeal decision from 2011. I rang HMCTS and they said the DWP should know they have nothing pre-2012 when they went computerised so they have no paperwork.
I contacted our DWP partnership manager to ask if he could find out what had jammed this claim. I got an explanation back from our nearby Benefit Delivery Service office saying that they obtained all available documents and have a notice stating that the hearing would be on 20.2.13, but they have no outcome decision. My client was not informed of this date and has not received any correspondence since.
DWP are saying that her claim was rebuilt on the legacy computer system due to a technical fault (my client remembers her money stopping for 3 weeks and no one could explain why) When this was done they brought forward some information from 2011 about drug addiction which they classed as a 'new condition', whereas in fact she has been through rehab and been clean since late 2012.
They have decided that on balance of probabilities the appeal outcome was disallowance, on the basis that my client did not contact them when she did not receive a component increase. However, if it had been disallowed surely her money should have stopped altogether? But they say that once an appeal has been heard and disallowed if a new incapacity is notified then a further WCA referral would be made to be assessed. The payment of the assessment rate can then continue (subject to provision of medical evidence) until the outcome of the assessment of the different condition is known and a further outcome decision given even though the original appeal has been heard and lost. she never got an appointment for a WCA.
In view of the record of the 'new' incapacity from 4th June 2016 it has been accepted that her original claim from 2011 should end on 3rd June 2016 and a further referral for WCA be made. She will be paid from 4th June 2016 if she is placed in a group from that date, however this new incapacity is not relevant now.
Can you advise how we should proceed? My feeling is that on balance of probability she very likely would have won her appeal - there were complex conditions at that time - and she has subsequently lost a lot of money. They want to start from June 2016 with a condition that does not exist now, we have completed and returned the ESA50 today but she does not have a drug addiction now and it is in their interests to find her fit for work, which further penalises her. She still has mental health problems as well as a painful musculoskeletal condition.
I would be grateful for any suggestions you can give
Thank you

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6 years 9 months ago #191140 by Gordon
Replied by Gordon on topic Lost appeal papers
Matsarh

I think your options are limited, have you spoken again to the Tribunal Service in regard the missed appeal, would they entertain a late appeal? My guess is no as it would not be possible to render an incontestable Decision given the time that has elapsed. But if they do it would be the only way to address the situation.

I'm afraid arguments about a Decision that was not made are moot, you say she would have been awarded, the DWP say she would not, the matter cannot be resolved in any reasonable fashion unless the TS move on the appeal.

A complaint to the DWP for their failure to process the request for appeal is certainly in order and may offer the opportunity for compensation of some sort, I would back this up by contacting your claimants MP.

As to the on-going assessment, all you can do is explain her current limitations and show that she meets the current ESA criteria for an award. Given the timescales she may well have been reassessed anyway, so I think you will struggle to argue that she is being disadvantaged now.

Gordon

Nothing on this board constitutes legal advice - always consult a professional about specific problems

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6 years 9 months ago #191175 by Matsarh
Replied by Matsarh on topic Lost appeal papers
Thank you Gordon. They are taking the view that she has been paid through this whole period so she has been lucky! I will help with a formal complaint and arrange to meet our MP's caseworker who is very helpful.
Thanks again

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