You know it’s bad news for the DWP when a judge begins his ruling with ‘Oh dear. Oh dear. Oh dear.’
It is very unusual for a judge to start the introduction [pdf, p2] to his judgment with the words, “Oh dear. Oh dear. Oh dear.”
But this is exactly what Nicholas Wikeley did in his ruling on a case involving the Department for Work and Pensions (DWP). And while the case itself is unresolved, it illustrates exactly how difficult the process is for anyone appealing a DWP decision to a tribunal.
Wikeley, a judge at the upper tribunal, was reviewing an appeal from the First-Tier Tribunal (FTT) – the first stage in a benefit appeal. It involved a case that was ongoing since 2014. And it is a case that had come to his attention in the past.
The appellant (person who appeals) is facing a claim from the DWP that she was overpaid more than £53,000 worth of Disability Living Allowance. Originally, she was facing a criminal prosecution. But that was dropped [pdf, p9] after the Crown Prosecution Service (CPS) discontinued the case because:
material has come to light which has prompted a further review of the case.
And the CPS found that:
There is no longer sufficient evidence to provide a realistic prospect of conviction.
As Wikeley points out [pdf, p10], there is no indication of what the “new evidence” is. And there is the possibility that it doesn’t affect the criminal case as civil and criminal cases require different standards of evidence. But as Wikeley states:
However, the Tribunal displayed a worrying lack of curiosity in its approach to this issue. Warning bells should have been ringing when it heard the criminal case had been dropped because of ‘new evidence’. At the very least the Tribunal should have asked what that new evidence was and whether it was relevant to the Secretary of State’s duty to disclose under rule 24(4)(b). Its failure to act in a suitably inquisitorial manner was a further error of law.
“I agree. I am speechless”
Amongst the evidence contested from the FTT was a DVD of footage of the appellant gathered by a DWP fraud officer. But although the appellant disputed the evidence, she wasn’t able to view it with the tribunal or give her views on it. The representative for the DWP agreed [pdf, p9] this was not right:
The failure of the First-tier Tribunal to allow the claimant the opportunity to comment on issues that arose from their viewing of the DVD constitutes a breach of natural justice.
Wikeley concurred [pdf, p9], stating:
I agree. I am speechless.
And that’s not all
But there’s even more. Including the fact that the appellant’s legal representative wasn’t available for the FTT hearing and no adjournment was granted. And the fraud officer, who compiled the DVD evidence, has seen been dismissed from the DWP. As Wikeley says [pdf, p12]:
The fact that a fraud officer central to the case had been dismissed was potentially of relevance to the issues the Tribunal had to determine. It is, of course, entirely possible her dismissal had nothing to do with the present proceedings…
But we do know criminal proceedings against the Appellant had recently been discontinued in circumstances which at the very least raised a question mark about the propriety of the counter-fraud investigation.
Wikeley concluded [pdf, p14] his judgment:
I hope I do not see this case again.
The fight for justice
It is impossible, as Wikeley points out, to comment on the rights and wrongs of this actual case. But what it does show is the battle one person has had to endure just to have a fair hearing.
And other cases show that this isn’t a one-off.
In August 2017, senior judges from an upper tribunal ruled that the DWP was acting illegally in a case brought by two people who failed to appeal the decision to stop their Employment and Support Allowance in time. Current Department for Work and Pensions (DWP) rules state that the first stage of appealing a decision – a mandatory reconsideration – needs to be lodged within a month.
But senior judges ruled that it should be “obvious” that people with long-term health conditions might have problems which meant that they could not complete the appeal process in time. And this is just the tip of the iceberg. Figures from 2016-2017 show that the DWP spent £39m fighting benefit appeals.
Access to justice should be a fundamental right for all citizens. This case may be a one-off in terms of both the length of time it has taken and the clear exasperation Wikeley felt in dealing with it. But it is representative of the system as a whole. And it is a system we need to radically overhaul to ensure justice and access to benefits is fair to everyone.
– Support Disabled People Against Cuts.
Featured image via Flickr
I lost my appeal regarding a failed medical assessment in front of a judge + doctor approx. 18 months ago – I failed getting any points in the assessment and got 0 / 15, even though ive been registered disabled for years.
The assessor lied in his written report of my assessment, and his dishonesty was duly reported – he stated in writing that
1] he had told me his name, when he hadn’t,
2] he had told me his position + role [as a qualified nurse etc.] when he hadn’t,
3] and claimed that he had had an id card hanging round his neck, when he hadn’t,
4] and that he’d opened the assessment room door with an official electronic key fob, when he hadn’t – I actually opened the door as the guy stood 10 yards behind me barking about which door to open.
Anyway, I reported this guy for lieing – and told them I could prove at least some of my points because I had audio recorded the entire assessment for my own posterity. This was extremely frowned upon by the DWP, and after I kept writing after months to the Centre for Health + Disability [or similar title] because nothing was being done about my case of reporting this ATOS-employed guy in April 2016, the DWP deemed I was not allowed on their premises again, except behind a screen, in an enclosure deemed for violent criminals etc. They moved me from their Winton jobcentre stating “everyone was being moved to the main Cotlands Rd. jobcentre” which was a blatant lie anyway, and I was moved to the Cotlands Rd. centre only because they had a screened unit where clients could sign on behind a screen. I didn’t mind being treated as a criminal would because that would be useful at a later date.
Still, as I write, the case is unresolved, and I understand and was told at my present medical assessment interview this week that ATOS is no longer employed by the DWP for medical assessments. The assessment was cancelled because their “security” wasn’t set up re: my only being able to be seen in an enclosed + screened pen last Wednesday – so my going there was a complete waste of time, and taxi fare [being disabled the bus journey was inappropriate]. What’s even more odd is that the DWP phoned me at 11am on the day of the assessment asking could I attend 30 minutes earlier, stating no reason for such – even though the assessment was not to be. I did my best to honour their request and turned up earlier only to be turned away after seeing the centre manager…
What a crock.
Could this be plain vindictiveness towards me by whoever runs these assessments, and the DWP? I received the notification on the 11 September 2017 for the assessment on the 27 Sept. 17 – is anyone telling me the DWP didn’t know about this assessment and the ridiculous security detail that goes with any visit I undertake at Cotlands Rd. jobcentre, and my having to be treated like a criminal and being seen only in a closed screen unit? I believe so…
This is a true sworn statement by myself J. Graham 29 Sept. 17