No appointment letter for ESA assessment

I am representing someone at a Tribunal appeal who was declared fit for work on the grounds that he did nor turn up for an assessment. He never received the appointment letter.
Any case law on this?

carmind wrote: I am representing someone at a Tribunal appeal who was declared fit for work on the grounds that he did nor turn up for an assessment. He never received the appointment letter.
Any case law on this?

Hi c,

Unfortunately, default supposition supports the fact that if the DWP or Medical Services can prove that they sent out a letter of appointment for a face to face, it is presumed that the claimant received it.

Of course, you can request that the above provide evidence that the appointment letter was actually sent to the claimant, and that it was correctly addressed.

You could also investigate whether the claimant has history of their mail going astray, is their mail delivered to a communal area, etc, etc.

If there is history of this, have they previously raised this issue with Royal Mail, etc, etc ?

Has your client received a BF223 Form where they would have the opportunity to show "Good Cause" for their non-attendance ?

There is some Caselaw : Here and in CSIB 4012 2004

Basically, you need to push DWP/Medical Services to provide written administrative evidence that they actually posted the letter of appointment as I have mentioned above.

You may find this : rightsnet thread helpful.

As an aside, as your client has been found fit for work on a technicality due to non attendance of a face to face, they can still make a fresh claim for ESA once 6 months have passed since the date of the fit for work decision post 30/03/15 "Repeat ESA Claim Amendments".

See below :

"13. This change does not apply to claims made following a determination that the claimant is treated as not having LCW because they have failed without good cause

1. to return the questionnaire

or

2. to attend for or to submit to a medical examination"

From :

DM Memo 10-15

Reiterated in this : CPAG article by Simon Osborne.

Relevant extract from the above :

"The six-month rule continues to apply where the claimant did not actually fail to satisfy the WCA, but was refused ESA because s/he failed to return the ESA50 questionnaire or attend the WCA medical. In such cases, if s/he reclaims ESA, s/he can be entitled to ESA pending a new WCA if s/he has had a significant worsening in her/his condition or has a new health condition, or in any case if it is made more than six months after being refused ESA."

bro58