ESA denied due to 'form not received in time' i got proof they did - help!

tokenfield

Why is it that the DWP can get away with saying that if they post a letter to the last known address of a claimant (even if that address is known to the DWP to be one that the claimant hasn't lived at for many years it is deemed to have been legally delivered to the claimant? Yet a claimant cannot use the same against the DWP?

missapril75

tokenfield wrote: »

Why is it that the DWP can get away with saying that if they post a letter to the last known address of a claimant (even if that address is known to the DWP to be one that the claimant hasn't lived at for many years it is deemed to have been legally delivered to the claimant?

I would say they can't unless the person involved doesn't take the matter further. It's often the problem that a 'victim' either does nothing or just rants and raves rather than taking the correct action.

Worth remembering, though, that most instances of alleged non receipt (of mail correctly addressed) have historically been either false (the giro with their signature on is traced) or unlikely (several letterss were sent over a week or two not just one letter) so claims not to have received something are, not unreasonably, treated with caution.

But if you have absolute proof something was incorrectly addressed, then challenge it. You can't lose.

If it's not challenged and highlighted, they'll get away with it.

epitome

tokenfield wrote: »

Why is it that the DWP can get away with saying that if they post a letter to the last known address of a claimant (even if that address is known to the DWP to be one that the claimant hasn't lived at for many years it is deemed to have been legally delivered to the claimant? Yet a claimant cannot use the same against the DWP?

Well of course it is 'legally delivered to the claimant at their last known address' What else would it be? It is claimants responsibility to update their records with DWP.

The point you are conveniently missing out is that most of these unknown address cases will be overturned and re-opened when the claimant calls to ask why their money has stopped and follows through with written reasons.

tokenfield

missapril75 wrote: »

I would say they can't unless the person involved doesn't take the matter further. It's often the problem that a 'victim' either does nothing or just rants and raves rather than taking the correct action.

Worth remembering, though, that most instances of alleged non receipt (of mail correctly addressed) have historically been either false (the giro with their signature on is traced) or unlikely (several letterss were sent over a week or two not just one letter) so claims not to have received something are, not unreasonably, treated with caution.

But if you have absolute proof something was incorrectly addressed, then challenge it. You can't lose.

If it's not challenged and highlighted, they'll get away with it.

You can challenge it, but in the main the DWP will still stick to their regulations as will the Tribunal. I have had the misfortune to have two Tribunal hearings go against me recently for similar situations - simply because the DWP will stick to their guns especially if you are asking for a late appeal to be admitted.
I'll post the info tomorrow on a new thread so as not to distract this one.

tokenfield

epitome wrote: »

The point you are conveniently missing out is that most of these unknown address cases will be overturned and re-opened when the claimant calls to ask why their money has stopped and follows through with written reasons.

Not in all cases, if it goes beyond the 1 month date for an appeal, it is becoming extremely tricky to get a late appeal accepted on the grounds of ' it wasn't delivered'.

Been there and recently lost two Tribunal hearings where an application for a late appeal in one was refused (appeal submitted approx. 6 weeks after the deemed delivery date) and one where it was also not received and a copy had to be obtained from the DWP which arrived 9 weeks after it being requested and 13 weeks after the deemed date of delivery. This affected another claim on a 'back to back' benefit where the claim for the second benefit had to be made within 30 days of the Decision Notice being sent out for the first. The DWP accepted the claim for the second benefit but would only backdate it to the date of application and not to the date when the first benefit was granted - they argued that there was a 13 or so week delay in making the claim - far in excess of the 4 weeks allowed.

missapril75

tokenfield wrote: »

You can challenge it, but in the main the DWP will still stick to their regulations as will the Tribunal.

tokenfield wrote: »

Not in all cases, if it goes beyond the 1 month date for an appeal, it is becoming extremely tricky to get a late appeal accepted on the grounds of ' it wasn't delivered'.
.

But if we're talking about what you said earlier - sending it to an old address that they knew you had moved from - it should not need an appeal.

That is an error and should be corrected. If necessary, take it to the Ombudsman but if you make an official complaint in a clear case of error they are going to look pretty stupid letting it go that far.

tokenfield

missapril75 wrote: »

But if we're talking about what you said earlier - sending it to an old address that they knew you had moved from - it should not need an appeal.

That is an error and should be corrected. If necessary, take it to the Ombudsman but if you make an official complaint in a clear case of error they are going to look pretty stupid letting it go that far.

Not true. The case in question was tested by the Tribunal entirely on 'that is was posted to the last known address'.

The claimant had told the DWP prior to this of the new address and that leading up to the decision being made, correspondence was being sent to the 'new' address by the DWP.
However for some reason when the Decision Notice was sent out it went to the 'old' address. From the records that the DWP supplied, it was clear that they had 'both' addresses as live.

The Tribunal ruled that the late appeal was to be refused as the DWP had shown that they had sent the document to the 'last known address' - they picked the wrong one. The Tribunal made a point of saying that the claimant compounded the matter in not taking responsibility at an earlier stage to find out if the Decision Notice had been sent out within the 1 month period instead of 'waiting to see what happens'.

When I questioned this at the Tribunal, the chairman told me that the DWP regulations are quite clear in this as is the case law attached to it.

I would also add that where a Decision Notice is sent to the wrong address for any reason and never reaches the claimant, the DWP will not re-issue another one. They will instead send a 'letter of entitlement' that states in the first paragraph 'This is not to be treated as a formal Decision Notice'.
If they were to re-issue the Decision Notice bearing a new date, the clock would start ticking again when considering the 1 month limit for appealing. They will send a copy of the lost Decision Notice instead bearing the original date that it was issued.

As for it being an error, when everyone including myself agrees that the law is very clear about what constitutes formal delivery of a notice. Any complaint would be futile as proven at the Tribunal.

To finish, it is quite clear to me that there has been a shift towards using the regulations more harshly to deny benefit if that action can be legally taken.

This takes me back to my first comment that if they want to play that silly game, then surely as long as a claimant states that they posted whatever it must be assumed to be delivered on the basis that 'it was posted to the last known address'.

missapril75

But if all that happened and could be shown to have happened....ie an error was made...then the error should be corrected. As I said, the Ombudsman should be involved if necessary, after the error has been highlighted to a manager.

If there is someone currently working for DWP perhaps they could confirm what the computer system does currently.

I know from my time there up to 2004 that the only way more than one address could be held was by recording a care of address in addition to the actual lived at address and if that was the case, computer generated mail would go to the care of address. It was a physical and technical impossibility for the wrong address to be chosen unless they had been recorded the wrong way around.

Something locally produced with someone (staff) noting the wrong address would be possible, but then that would be the error of which I speak as would getting it the wrong way around.

There's no two ways about this. If it was as described it was an error.

DWP has been accountable for errors for many years and should make good any financial losses in addition to correcting the errors and reversing the consequences of them.

An appeal tribunal doesn't have the power to do that.

epitome

tokenfield wrote: »

and one where it was also not received and a copy had to be obtained from the DWP which arrived 9 weeks after it being requested and 13 weeks after the deemed date of delivery. This affected another claim on a 'back to back' benefit where the claim for the second benefit had to be made within 30 days of the Decision Notice being sent out for the first. The DWP accepted the claim for the second benefit but would only backdate it to the date of application and not to the date when the first benefit was granted - they argued that there was a 13 or so week delay in making the claim - far in excess of the 4 weeks allowed.

Why the heck did you wait 13 weeks after benefit stopped before submitting an appeal? Waiting for duplicate letter was a daft thing to do. should have appealed as soon as you became aware money had stopped. Phone to discover reason why and then submit appeal.

epitome

tokenfield wrote: »

When I questioned this at the Tribunal, the chairman told me that the DWP regulations are quite clear in this as is the case law attached to it.

Did you ask for references of those laws and case laws? The DWP must at any one time only have ONE postal address, if they had 2 addresses then they were in error IMHO. You should have taken legal advice and appealed to the upper tribunal or the Independant Case Examiner.

I would also add that where a Decision Notice is sent to the wrong address for any reason and never reaches the claimant, the DWP will not re-issue another one. They will instead send a 'letter of entitlement' that states in the first paragraph 'This is not to be treated as a formal Decision Notice'.
If they were to re-issue the Decision Notice bearing a new date, the clock would start ticking again when considering the 1 month limit for appealing. They will send a copy of the lost Decision Notice instead bearing the original date that it was issued.

Sounds perfectly reasonable to me

As for it being an error, when everyone including myself agrees that the law is very clear about what constitutes formal delivery of a notice. Any complaint would be futile as proven at the Tribunal.

There is the Independant Case Examiner, and the Upper Tribunal. If you put your head the sand you'll never win.

This takes me back to my first comment that if they want to play that silly game, then surely as long as a claimant states that they posted whatever it must be assumed to be delivered on the basis that 'it was posted to the last known address'.

The law works both ways, it's called Section 7 of the Interpretations Act 1978 it can be used by either side. It helps if you get proof of posting or proof of delivery & have kept photocopies of your letters, (which are all just common sense) it is also common sense to phone and check they received your letter and have actioned it. Whilst not a legal requirement on you to phone and check it just makes sense that you do phone because this is the money that you live on and you are trusting your livelyhood to first class stamp.... if you don't make any checks and balances and the !!!! goes wrong.... who's the fool?