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

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.

Thanks. You may be right, but the over riding factor that exists is that a late appeal will not be accepted.

I never thought about complaining. I was more focused on arguing a case in court than moaning about how once again the DWP get things so wrong.

Surely, the DWP are aware of what has happened and I presume that they wish to keep quiet about it. Hence the reason that they have never suggested I could make a complaint, only make an application for a late appeal to be allowed.

Another job for tomorrow thanks.

tokenfield

epitome wrote: »

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.

You have the wrong end of the stick. This was an application for a benefit - none was in payment previously.
To be honest how long should you wait for a decision? The first I knew about the decision being sent out was weeks after it had been sent out - certainly more than 4 weeks after. Having not then seen the Decision Notice I didn't know what it said and without it I couldn't ask for a Statement of Reasons. You can't very well appeal against a decision if you have not actually seen the notice.
Eventually when they got round to sending the Statement of Entitlement and a copy of the original decision notice, I realised what had happened - it had been sent to the wrong address. As I was well over the 1 month period from the date of the decision notice, I had no alternative but to ask the DWP to allow a late appeal - they refused - hence the Tribunal hearing which I lost.

missapril75

tokenfield wrote: »

Surely, the DWP are aware of what has happened

This is why I threw in that other part about how alleged non receipt is often proven to be false.

The fact that the computer records hold an address that at the time a letter was sent might not have been the right one might not be fully appreciated or realised. Or even looked for.

That, married to the natural reticence of staff with much experience of wool being pulled over their eyes, explains why it might not get the attention it deserves.

The natural reaction to "I didn't get a letter" is "well, we posted it on -/-/2013"

A mail strike; printer problem; power cut; holding the wrong address etc would be among possible reasons for non arrival but you don't go hunting for that unless someone is really pushing the issue.

If someone is adamant and asking them to make doubly sure/what address was used/maybe it was returned undeliverable etc, well, maybe then they would have a more thorough check.

tokenfield

epitome wrote: »

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.

The Tribunal chairman told me and I agreed that the regulations are quite clear, and are backed up by case law that when a decision notice is sent out and issued to the 'last known address' it is accepted that delivery will take place.


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

To be honest I never thought about complaining I was too focused on the court case.

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 @#&$^#ing 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?

Yes I do agree, but how long would you leave it to contact the DWP when waiting for a decision on a claim?
Unfortunately if you leave it too long and more than a month has passed from when it was sent, you will have to apply for leave to have a late appeal accepted.

In reality I normally allow 6/8 weeks for a decision notice to be sent out. Using your comments as a guide, how long would you wait?

epitome

tokenfield wrote: »

You have the wrong end of the stick. This was an application for a benefit - none was in payment previously.
To be honest how long should you wait for a decision?

Primary Benefits have a 14 working day process time, you are told this when you make your application. So if you hear nothing after 14 - 16 working days you should phone to enquire what is the delay. And then keep on top of them until it is processed. And you should be aware that you sometimes need to have a callback from the benefit centre for more detailed advice.

The first I knew about the decision being sent out was weeks after it had been sent out - certainly more than 4 weeks after. Having not then seen the Decision Notice I didn't know what it said and without it I couldn't ask for a Statement of Reasons.

You may very well have been genuinely not entitled to the benefit ofcourse. But you could have asked by phone why you were not entitled, you don't need to wait for a letter. The security questions asked would often flag up to the DWP person asking the Qu's that there is a problem with the address.... and they would take appropriate steps after you pass the security Qu's. If you repeatedly fail the Security Qu's then this will flag to you that there is a serious problem with your claim.

You can't very well appeal against a decision if you have not actually seen the notice.

You can and you should. and you should ask them on the phone what the date of the decision was, so you can enter that on your appeal.

Eventually when they got round to sending the Statement of Entitlement and a copy of the original decision notice, I realised what had happened - it had been sent to the wrong address. As I was well over the 1 month period from the date of the decision notice, I had no alternative but to ask the DWP to allow a late appeal - they refused - hence the Tribunal hearing which I lost.

So, you were appealing their refusal to allow you to have a late appeal? You were not appealing the entitlement to benefit? This would presumably come later....(after you win your right to a late appeal.)....based on the idea that it was unreasonable for them to have sent your decision to the wrong address and expect you to have received it.

You mention them sending you letters to the correct address ... as part of your evidence for appeal....

• Were these other letters sent/received after the date of application for the new benefit?
• Were these other letters sent/received before the date of the decision letter which went to the wrong address?
• Were these other letters in relation to the new benefit that was being applied for?
• When you applied for the new benefit did you give them the correct address? Was it stated on your application form?
• If the answer to above is 'yes' how did they explain that they had sent your decision letter to a different address?

tokenfield

epitome wrote: »

Primary Benefits have a 14 working day process time, you are told this when you make your application. So if you hear nothing after 14 - 16 working days you should phone to enquire what is the delay. And then keep on top of them until it is processed. And you should be aware that you sometimes need to have a callback from the benefit centre for more detailed advice.

Thanks, but I have never been told by anyone how long it will take. The DWP have a nasty habit of being rather vague when you try to tie them down to a timeframe.
Of the benefits that I have claimed in the past, none has resulted in a Decision Notice being sent out within the time frame you quote.
I have had them take anything up to 7 months to issue that document.

Should you be pestering them to that extent? Many will say not as it is taking up valuable time away from other pressing cases. Plus, you never get to speak to anyone that knows anything - they fail to reply to letters and telephone calls. The contact staff at the exchange can tell you nothing until it is put onto the system.


You may very well have been genuinely not entitled to the benefit ofcourse. But you could have asked by phone why you were not entitled, you don't need to wait for a letter. The security questions asked would often flag up to the DWP person asking the Qu's that there is a problem with the address.... and they would take appropriate steps after you pass the security Qu's. If you repeatedly fail the Security Qu's then this will flag to you that there is a serious problem with your claim.

Well it didn't. I have a copy of their file and in it it quite clearly shows on the file jacket of this particular case two addresses, one the old one which was not crossed off and the new one underneath.

You can and you should. and you should ask them on the phone what the date of the decision was, so you can enter that on your appeal.

Yes that is right - the date they said it was sent out was more than 4 weeks earlier - outside the normal appeal limit of 1 month.


So, you were appealing their refusal to allow you to have a late appeal? You were not appealing the entitlement to benefit? This would presumably come later....(after you win your right to a late appeal.)....based on the idea that it was unreasonable for them to have sent your decision to the wrong address and expect you to have received it.

You are correct - an appeal against the refusal to allow a late appeal.
If won, then an appeal against the decision would be made.


You mention them sending you letters to the correct address ... as part of your evidence for appeal....

• Were these other letters sent/received after the date of application for the new benefit?
• Yes - an ATOS request to come in for an assessment after the claim had been submitted.
• Were these other letters sent/received before the date of the decision letter which went to the wrong address?
• Yes, claim made Nov, requested to have an ATOS assessment to new address dated Jan. Decision issued June to wrong address.
• Were these other letters in relation to the new benefit that was being applied for?
• Yes and are on their file as received.
• When you applied for the new benefit did you give them the correct address? Was it stated on your application form?
• Of course
• If the answer to above is 'yes' how did they explain that they had sent your decision letter to a different address?
• They haven't. They argued that even though they agree that it was sent to the wrong address in error, they have complied with the law - posted to the last known address - they were confused and assumed that the old address above the new address was in fact the new address.

To be honest I have no idea where to turn to next.

cbrown372

tokenfield wrote: »

To be honest I have no idea where to turn to next.

Make up another user name on here/cag and waste the time of the users on here?

epitome

Well if I were you, I would have appealed the appeal within 1 month through the tribunal service, If you can show that your application for benefit had the correct address on application, and you did not do any subsequent change of address, AND the DWP can show no evidence that you requested a change of address -they would have a form completed by you if you did- then this decision is clearly wrong and needs to go to the upper tribunal and the Independant Case Examiner.....Because the tribunal ruling was in error in that you "last known address" was clearly stated on your new claim to benefit statement and had not been changed, so for the tribunal to come to a conclusion that your "last known address" was another address entered by DWP in error is absurd.

What to do now?
Of course, if we are talking about a recent claim i.e. this was June 2013 then you should make a new claim to ESA and backdate it to the date of closure. You can only backdate a maximum of 3 months so you had better do this fast. If this was last year or before... I assume you have done a new claim by now.


Re: your other comments......... When you make a claim over the phone for JSA IS or ESA you are told that it takes 14 working days, but not everyone listens to what is being said. (on the paper application forms it might say on there aswell) ...... This does not mean it will have a decision within 14 working days (3 weeks) it means generally a decision will be made within 3 weeks but if there is no decision after 3 (weeks) then you can have it chased up as to what the delay is.... you cannot have it chased up before the 3 weeks have passed. And then depending on what you are told you should then keep in touch with them until it is sorted, obviously you should do this because it is your claim to benefit, and you have a right to know what is happening with it.

Sometimes claims genuinely take many months to make an eligibility decision but during that time you should be aware of what the delay is.