Department for Work and Pensions (“DWP”) lost First-tier Tribunal (SEC) appeal (of decision not to pay Universal Credit) because of DWP’s inability to provide crucial communication from the DWP to the Claimant
By John Brace (Editor)
and Leonora Brace (Co-Editor)
First publication date: 19th November 2021, 17:00 (GMT).
This is a report of a judicial hearing I virtually observed (with the aid of automatic captions) on Thursday 18th November 2021 in the Sutton Social Security and Child Support (“Sutton SSCS”) region. The mode of hearing was Cloud Video Platform (“CVP”).
It was heard before a single First-tier Tribunal Judge (“FTTJ”) who was FTTJ Harrington.
The Appellant is referenced in this report on the hearing by the three random initials Mr TXI. Information that could lead to jigsaw identification of Mr TXI has either been left out or replaced with a random number of asterisks (***).
The Respondent was the Department for Work and Pensions (“DWP”) (technically the Secretary of State for Work and Pensions) and the DWP was represented during the hearing by Miss Muireann Coyle.
The hearing was hosted by the Judge’s Clerk who was Wendy Larwood.
First-tier Tribunal Judge Harrington appeared by video.
Miss Muireann Coyle (for the Respondent) appeared by video.
Mr TXI (the Appellant) appeared by video (which due to the aspect ratio looked like it was possible he was using a mobile phone). Mr TXI was not represented at the hearing and was a litigant-in-person.
The hearing was scheduled to start at 3.30 pm and the case number for this First-tier Tribunal (Social Entitlement Chamber) appeal was SC124/21/***** and was an appeal by Mr TXI about a Universal Credit (“UC”) decision made by the DWP (who was the Respondent).
The hearing started with First-tier Tribunal Judge Harrington checking that Mr TXI had in front of him each of the paginated bundles prepared for the hearing. She asked Mr TXI if he had the bundle (where the pages were numbered at the top centre) with 21 pages in it?
Mr TXI replied that he thought it was upstairs.
First-tier Tribunal Judge Harrington expressed her view that it was appropriate to give Mr TXI a few minutes to collect the papers and paused.
Mr TXI went off camera and returned a few minutes later.
The Judge suggested that Mr TXI take his time.
There were verbal exchanges between the Judge and Mr TXI first about page 21, then about a document on page 18 dated 22nd December last year.
FTTJ Harrington then asked Mr TXI about an additional bundle marked A. Mr TXI asked if this was the one marked A on top of it? The Judge explained that Bundle A was extra evidence sent into the Tribunal in March of this year. Mr TXI asked FTTJ Harrington if it had been evidence that Mr TXI had sent in? The Judge replied, “Yes” to this. Mr TXI confirmed he had Bundle A. FTTJ Harrington replied that that was very helpful.
The Judge asked the Representative for the Respondent (Miss Muireann Coyle) if she had got all the pages? Miss Muireann Coyle replied that she had got all the pages. FTTJ Harrington pointed out that Miss Coyle’s video had frozen, but that the Judge had heard Miss Coyle’s answer very well followed by pointing out that Miss Coyle’s video was now moving again.
FTTJ Harrington explained the history of the case. On 12th September 2020 the Respondent had closed a claim for Universal Credit (“UC”). The Judge continued with saying that it was said by the DWP that it [the UC claim] was closed because Mr TXI had failed to provide evidence when requested. She continued by pointing out that the Respondent stated that Mr TXI should have provided evidence to the Respondent by a date set out in the papers. Judge Harrington continued that the Respondent stated that Mr TXI had made a Claimant Commitment on 8th July 2020. FTTJ Harrington stated that the decision to close the claim was at page 16, however this had been stapled the wrong way round in her bundle and was in fact page 17. There was then a mandatory reconsideration of the Universal Credit decision, the FTTJ asked Mr TXI if he had that page? Mr TXI confirmed he did.
FTTJ Harrington explained that Mr TXI had been asked to provide details of income and expenses and was given 14 days to do so, otherwise the claim would be closed on 2nd September, after a reminder an extension was granted to 12th September, but the information was not provided. FTTJ Harrington paused at this point and asked if Mr TXI understood what the appeal was about? Mr TXI answered, “Yes”.
FTTJ Harrington asked Mr TXI about the decision to close the UC claim. Mr TXI asked if he was allowed to answer, to which FTTJ Harrington replied, “Yes”.
Mr TXI explained that during the coronavirus pandemic, he had been furloughed, but that he had been advised to make a claim for UC which he did. Continuing, Mr TXI explained that the DWP had asked about his previous employer, it had taken time to get a pay slip (from his previous employer), but the previous employer had sent an email explaining.
Mr TXI then explained a long chronology of contact between himself and various DWP employees, who said they would contact him by a certain time (but didn’t), made excuses of being busy to do with the coronavirus pandemic, two visits by Mr TXI to two different named Jobcentres, but again promises of future contact by DWP were made that didn’t happen.
Mr TXI then contacted his Member of Parliament (MP) who was ********. Mr TXI was advised to make a new application for UC and had to borrow from friends and family.
FTTJ Harrington stopped Mr TXI there and asked if Mr TXI had made a new application for UC? Mr TXI replied, “Sorry?”. FTTJ Harrington asked the same question to Mr TXI again.
Mr TXI explained that the renewed UC application hadn’t been backdated to the original UC claim. FTTJ Harrington stated that her understanding was that when [Mr TXI] made a renewed UC application, that it wasn’t backdated? Mr TXI replied, “Indeed”.
FTTJ Harrington said that one of the issues she had noted down following her reading of the papers was that she couldn’t see a record where Mr TXI had been asked to provide the information, but that some parts of the journal referred to some messages, but it didn’t seem as though the Respondent had produced any information showing Mr TXI had been asked to provide earnings details back on 23rd August, but she would ask Miss Muireann Coyle about that?
Mr TXI said, “Yeah, please do”.
FTTJ Harrington said that she was troubled there was no evidence of the request and asked if she was able to help? Miss Muireann Coyle replied that it was not in the bundle, but that there was a separate note on 22nd September reminding Mr TXI to complete a to do list regarding the earnings, she referred to a date of 21st August and the 14 days given to provide the information.
FTTJ Harrington said that she knew that. Miss Muireann Coyle asked FTTJ Harrington if she didn”t have a record of the text sent?
Mr TXI said, “Hello”, FTTJ Harrington asked if Mr TXI could hear her, Mr TXI again said, “Hello”, FTTJ Harrington asked again if Mr TXI could hear FTTJ Harrington.
Mr TXI left the video hearing.
FTTJ Harrington said she would have to pause the hearing until Mr TXI was back, there had been sound issues earlier, she noted that at 3.50 pm Mr TXI had disappeared.
Miss Muireann Coyle replied, “OK”.
FTTJ Harrington explained that she would have to step out of the room she was in to ask her Clerk to stop the hearing and to just hang on a moment.
FTTJ Harrington left.
FTTJ Harrington returned.
FTTJ Harrington said to Miss Muireann Coyle that she had got a Clerk to come and help, Miss Muireann Coyle and Mr Brace would be returned to the waiting room and the hearing would resume when there was contact with Mr TXI. FTTJ Harrington was apologetic and said “sorry for this” and expressed her thanks.
At 3.52 pm Miss Muireann Coyle and myself (Mr Brace) were returned to the waiting room.
At 3.54 pm myself and Miss Muireann Coyle were both moved from the waiting room to the hearing room and welcomed back to the hearing by the automated voice message.
Mr TXI said that he was somehow lost. FTTJ Harrington asked Mr TXI could he hear her now, to which he replied, “Sorry”. FTTJ Harrington explained to Mr TXI that she had paused the hearing straight away and that nothing had been said in the Mr TXI’s absence. Mr TXI thanked her.
FTTJ Harrington said that she was asking Miss Coyle for a record of when Mr TXI was asked for information about his time as an employee, that Miss Coyle had stated there wasn’t a record, but there was a reference to the request made in the journal on 2nd September. FTTJ Harrington quoted from this including “can you please complete”, “to do”, “earnings”, “employer”, “can’t pay you without this information”.
FTTJ Harrington then said she was having some sound difficulties as what she was hearing was slightly muffled, she would ask her Clerk to try to adjust the volume but suggested leaning forward into the microphone may help.
Mr TXI stated that he could hear FTTJ Harrington perfectly.
FTTJ Harrington explained that she was going back to Miss Coyle, then would go back to Mr TXI and apologised to Mr TXI. The Judge asked Miss Coyle to go back to what she was saying before she was interrupted.
Miss Coyle answered that the to do was not in the bundle as it was separate to what was on the journal, but when asked Mr TXI had to complete whatever was requested.
FTTJ Harrington clarified that the to do was on a separate area rather than a journal entry. To be satisfied as to the precise information Mr TXI was asked to produce and by when where could FTTJ Harrington see that?
Miss Coyle answered that it was not in the bundle, Miss Coyle had been looking at Mr TXI’s Universal Credit account, but she couldn’t locate it either, then she referenced the 2nd September note. Miss Coyle said that she didn’t know if this could be because the old claim was closed down and not retained, she couldn’t clarify and apologised.
FTTJ Harrington said to Mr TXI that she would pause for a moment as she was just writing. Mr TXI replied with “Sorry”.
FTTJ Harrington said she had a further question for Miss Coyle. If FTTJ Harrington was trying to decide if it was decided appropriately, FTTJ Harrington would need to know what Mr TXI was asked to provide and what Mr TXI was told about a time limit. She continued that the note dated 2nd September stating that the DWP couldn’t pay Mr TXI without the information, that FTTJ Harrington was not seeing the particulars as to what the original was, or the date indication as to how long Mr TXI had to provide the information and that there seemed to be a difficulty there. FTTJ Harrington wanted to give Miss Coyle a full opportunity to address FTTJ Harrington with her comment?
Miss Coyle answered that it wasn’t in the bundle and that she couldn’t find it in Mr TXI’s account either.
FTTJ Harrington replied, “OK” followed by asking Miss Coyle was there anything was there anything Miss Coyle wished to say on behalf of the Department for Work and Pensions notwithstanding not having the information and did Miss Coyle still consider that the Tribunal had sufficient evidence to make findings of what Mr TXI was asked for and by when?
Miss Coyle answered that Mr TXI did provide a payslip later, which showed Mr TXI needed to provide it and must have seen the to do list, even though it couldn’t be seen now.
FTTJ Harrington asked about Mr TXI’s knowledge of the timings?
Miss Coyle said that Mr TXI would’ve been given a time limit, but she couldn’t verify this by showing it as it was not in the bundle either.
FTTJ Harrington thanked Miss Coyle and said that she was just going to note that down. FTTJ Harrington asked Mr TXI if he could hear her? FTTJ Harrington said that she had had a discussion with Miss Coyle as she was trying to understand the information before her and whether it was enough to fully understand Mr TXI’s case. FTTJ Harrington continued saying that the DWP took the decision to close Mr TXI’s claim as the DWP say that Mr TXI failed to provide information asked for by the date asked, but that FTTJ Harrington did not have a copy of the request made to Mr TXI with what Mr TXI needed to be provide and the date the DWP wanted Mr TXI to provide it. FTTJ Harrington continued that DWP had not included this in the bundle and that it was important information as if FTTJ Harrington was told by DWP that Mr TXI had failed to provide the information by a certain date, FTTJ Harrington needed to see that Mr TXI had been instructed to provide the information by a specific date. FTTJ Harrington continued that DWP accepted that this information was not in the bundle and neither could Miss Coyle find this on the computer system which Miss Coyle had access to.
FTTJ Harrington said she would give careful thought as to whether the decision to close the claim was correct. FTTJ Harrington said that she was unable to see the initial message, the instruction that DWP had given Mr TXI, which caused significant problems for DWP as FTTJ Harrington couldn’t look at a piece of paper of a copy of the instruction to be assured that Mr TXI had the instructions and by what date the instructions had said to provide it. FTTJ Harrington asked Mr TXI if he had anything further he would like to say about things?
Mr TXI replied that FTTJ Harrington had said everything, followed by, “I’ve got a couple” followed by what what appeared to be the word “date”.
FTTJ Harrington said that she hadn’t heard what Mr TXI had told her.
Mr TXI repeated that the Mr TXI had some copies of messages sent to Mr TXI about the Universal Credit claim, but that didn’t mean if Mr TXI could see….
FTTJ Harrington said she had the 2nd September one and asked Mr TXI if Mr TXI had messages that don’t give a date she would note that down followed by a pause and “alright”. FTTJ Harrington asked Mr TXI if he had anything further to say?
Mr TXI said he was happy with what FTTJ Harrington had said and she could take it from there.
FTTJ Harrington thanked Mr TXI and Miss Coyle for their assistance, FTTJ Harrington had read all the information and listened to their comments. FTTJ Harrington was going to allow the appeal, because she was not satisfied that DWP had provided evidence for the to do in all its particulars. FTTJ Harrington said that there was a very important date by which Mr TXI was asked to provide information and without producing it, FTTJ Harrington couldn’t be satisfied that Mr TXI had failed to provide it. FTTJ Harrington would set aside the decision and summarise the decisions in a decision notice sent out to parties. FTTJ Harrington would take time that afternoon to produce it and send it out to both parties. FTTJ Harrington thanked Mr TXI and Miss Coyle for attending and unless there were any further matters would end the hearing just after 4 o’clock.
Miss Coyle confirmed that she had nothing further to add. FTTJ Harrington asked Mr TXI if he had anything further to add? Mr TXI thanked FTTJ Harrington, said that was it followed by “thank you guys”.
FTTJ Harrington said that she would end the hearing just before ten past four.
Mr TXI replied, “bye”.
The hearing ended at 4.06 pm.
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