IB to ESA DWP sent appointment to old address

pinklady21

Hi everyone
Here's an interesting twist on DWP error......

IB to ESA claim been on going for ages.
IB just been stopped apparently because of claimant's failure to attend the Work Capability Assessment. DWP were advised of claimant's change of address in February.
In April, they sent an ATOS appointment letter to the old address not the new one.
In the meantime, other letters have been arriving from DWP correctly addressed to the new address - eg annual uprating form in March etc etc.

What can be done to restart the IB payments - the DWP has clearly received the letter about the change of address and has failed to update its records properly, resulting in the letter about the appointment being sent to the old address in error.

Can they legally stop the IB payments in this situation as it is their error?

Thanks!

rogerblack

They cannot.
They are required to give notice for the medical.
If this has Not been done, the claimant cannot be sanctioned in any way.
Sending to an old address, when a new one is on file would not be notification as the law requires.
Simply notifying them that the notification was not done should be enough to restart.

Cpt.Scarlet

It may not be this easy.

The DWP can only stop payments after a decision has been made by a decision maker, as a result you may need to appeal this decision. In principle showing that the letter was sent to the wrong address should be enough but I know several cases where the DWP have argued over the addressing of the letter.

If you have a copy of the mis-directed letter, then this would be clear proof, although you may then need to answer why you did not retrieve the letter in time to attend the assessment.

If you do not have the letter, then I would suggest you immediately submit Subject Access Requests to the DWP and ATOS for your address details.

pinklady21

Thanks for your prompt replies, Roger and Cpt.

Ok - so although in principal the DWP have made an error, geting it corrected might be a tricky one.

I don't have the letters, only the sayso of a DWP person on the phone when the non appearance of cash in bank account was queried.

Interestingly a SDA request was made just after the change of address was notified, and the reply was sent to the new address too - so the DWP can hardly claim they had an excuse to send subsequent notifications to the old address!

However, agree, a fresh SDA is in order at this stage.

I am trying to find which ESA reg it is that covers a notification by DWP made correctly - I vaguely remember something contained in the regs that it had to be sent to the correct address for it to be validly served - is it Reg 23?

If you can point me in the right direction, that would be helpful.

As to appealing - are you aware of other similar situations where an appeal has been successful / unsuccessful? Again, links to the appropriate cases would be helpful in case they have to be quoted from.

Clearly there is a transitional payment if IB - ESA migration continues, but how to get existing claim restarted with minimal hassle?
Woudl it be enough to request a reconsideration?

Thanks all!
Kind regards

rogerblack

To expand on the earlier response, yes, you want a reconsideration of the decision to stop benefits.
Perhaps combined with an official complaint, if this has caused you financial hardship, or stress.

Normally, if you miss the medical, they have no excuse (unless you have good cause) to treat you as if you do not have 'limited capacity for work'. (LCW).
However.

The specific DWP rules: http://www.dwp.gov.uk/docs/dmgch42.pdf

42248 If the DM cannot confirm that the provisions in DMG 42244 were met, the claimant
cannot be treated as not having LCW

42244 Unless the claimant has agreed to accept a shorter period of notice whether given in
writing or by telephone (see DMG 42243 and DMG 42246), when considering
whether a claimant should be treated as not having LCW, the DM has to be satisfied
that the Secretary of State has complied with the duty set out in the legislation
1
, that
1. a written notice was sent and...



Has notice been sent
42249 The DM needs to be sure that the claimant has been sent notice. The DM can
accept that it has been sent if there is a record of its issue and no indication that it
was not properly addressed, stamped and posted
1
. I

Cpt.Scarlet

The key thing to concentrate on is that the assessment appointment is issued by ATOS not the DWP. The DWP are quite good at providing an audit trail for their own correspondance (not 100%), but cannot claim the same for ATOS.

These things do get overturned, but can take months. The problem with starting a new claim is that you will not be eligible for any payments, as you will be classed as technically failing the assessment, until you attend a medical or six months have passed, although is may still be worth doing.

Also any Transitional Protection you had will only be on the original claim, so its really important to get the original claim re-activated.

pinklady21

Thanks chaps - very helpful, as ever!
Seems to me the DWP really can't have a proverbial leg to stand on, clearly if they have been advised of a new address and they blythely carry on sending letters to the old one, they can't really be said to have 'properly addressed' it!

Will get my ducks lined up and try and give them a call tomorrow and see what they are prepared to do about this.

Question - if the decision to stop benefit has to be formally appealed, do you know if the tribunal have the right to request reinstatement of benefit at the IB rate?
Or can they continue to refuse to reinstate benefit until a medical assessment completed?
Thank you!
Kind regards etc

Cpt.Scarlet

Hopefully you will get iit resolved before it goes to an appeal tribunal.

The decision, which should be conveyed to you in writing, is an ESA decison, whatever else happens with your claim, you are no longer on IB and cannot get back on it.

rogerblack

As I understand the present condition, you cannot be treated as not having LCW (being fit for work) if you have missed a medical due to their fault.
I am unsure if this would result in the original award of IB reverting back into payment (with any backpay), or ESA, at the assessment rate, until a fresh medical.

skintmacflint

pinklady21 wrote: »

Thanks for your prompt replies, Roger and Cpt.

Ok - so although in principal the DWP have made an error, geting it corrected might be a tricky one.

I don't have the letters, only the sayso of a DWP person on the phone when the non appearance of cash in bank account was queried.

As to appealing - are you aware of other similar situations where an appeal has been successful / unsuccessful? Again, links to the appropriate cases would be helpful in case they have to be quoted from.

Clearly there is a transitional payment if IB - ESA migration continues, but how to get existing claim restarted with minimal hassle?

Thanks all!
Kind regards

Couple of threads on the CAG forum where forms were sent to wrong addresses and the appeals were won, but not without some difficutly . One poster had to get their MP involved. Sorry can't post a link as I don't know how to, but 1 poster's ID was worried33 I think.

The other problem was once appeal for not attednign assessment was won there was some difficulty due to the IB claim being shut down as the system wouldn't accept an IB claim being re-entered. Person had to supply sick notes again for a period of time even although they shouldn't have.

pinklady21

Thanks skinflint - sorry CAG forum, which one is that?
I am a wee bit slow today, apologies if it is completely obvious!!
thanks