Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.CE/164/2013

ADMINISTRATIVE APPEALS CHAMBER

Before Judge Mark

Decision:  The appeal is allowed.  I set aside the decision of the tribunal and remit the matter to be reheard by a new tribunal in accordance with the directions given below.

REASONS FOR DECISION

1.     The claimant was awarded ESA from and including 14 February 2012.  The award was terminated from and including 11 April 2012 on the ground that she had failed without good cause to return a limited capability for work questionnaire by 10 April 2012.  This was said to have been sent to her on 8 March 2012, with a further request being sent on 1 April 2012.  The claimant appealed, contending that she had not received either the questionnaire or the further request.  She claimed to “have had issues with my post for a number of years in which my neighbour sometimes gets my post and I also receive her post.”  She enclosed a letter from the neighbour in question stating that they often got each other’s correspondence and things went astray.

2.     The claimant indicated that she did not want an oral hearing of her appeal and it was dealt with on the papers by the tribunal.  The tribunal had before it letters from the claimant and her neighbour giving the evidence referred to in paragraph 1 above and also a print out of a computer screen by ATOS medical services showing that (1) a questionnaire and a questionnaire reminder had been issued in relation to the current claim and also (2) the claimant had made a previous claim which had led to the issue of a questionnaire and reminder, and also two appointment letters together with a letter BF223, a letter which is sent if a claimant fails to attend a medical examination.

3.     The tribunal concluded that on the balance of probability the claimant had received the questionnaire, giving five reasons for this conclusion:

(1)  The records show that the questionnaire was sent by ordinary post on 8 March 2012 and the reminder was sent on 1 April 2002, both to a long established address.

(2)  It was improbable that both the questionnaire and the reminder had been lost or mis-delivered.

(3)  If either had been received by the neighbour on the balance of probabilities it would have been passed to the claimant, given that, in particular, the claimant also received mail intended for her.

(4)  The claimant had a history of non-cooperation, having needed a reminder to return the 2010 questionnaire and having failed to attend a medical examination.

(5)  Neither document had been returned to the DWP.

4.     The tribunal therefore found that the claimant had failed to return the questionnaire without good cause, so that the decision maker had been right to decide that she should be treated as not having limited capability for work (Employment and Support Allowance Regulations 2008, regulation 22).

5.     The claimant appealed.  Her representative does not challenge the second to fourth findings of the tribunal but in effect contends that it did not address the primary question as to whether there was evidence that the questionnaire and reminder had both been sent to the claimant as alleged and also challenged the finding that neither document had been returned to the DWP.  It is contended that the computer generated log to which I referred at paragraph 2 above was produced by ATOS (an outside contractor) and that it at best indicated that a letter was triggered on 8 March 2012.  There was no verification of postage at all, no indication as to what normal practices and procedures were and no direct evidence as to how robust or otherwise ATOS systems were.  Further, the documents had not, it would appear, been sent by the DWP at all but by ATOS, and the question would be whether they had been returned undelivered to ATOS.

6.     Permission to appeal was given by an Upper Tribunal Judge who expressed the view that it was arguable that the tribunal ought not to have treated evidence of the issue of documents as evidence of posting.

7.     It appears to me that the tribunal was amply justified in concluding that the documents were sent.  Those responsible for the issue of these documents plainly have a course of business which involves the documents being generated and sent out, and in the absence of any evidence to the contrary, the appearance of the letter or other document in the computer print out can properly lead to the inference that it was sent by post to the appropriate address.  Where there is evidence to the contrary, it is for the tribunal to weigh the evidence and come to a conclusion.  Here the evidence clearly entitled the tribunal to reject the claimant’s evidence that she had not received either document and the tribunal gave good reasons for rejecting that evidence.  I note that the tribunal’s finding refers expressly only to the initial questionnaire but its reasoning clearly includes the reminder as well.

8.     The tribunal was wrong, however, to conclude that the records showed that the documents were sent in the ordinary course of post on the dates shown on the records.  There is nothing in the print out to indicate that was the case.  Indeed, as the claimant’s representative has pointed out on this appeal, one of the dates in question, 1 April 2012, was a Sunday, and in addition, as pointed out in R(IB) 1/00 at paragraph 14, mailing arrangements in offices often mean that an item must be in the mail room by early afternoon if it is to be sent that day.

9.     It does not appear to me, therefore, that the print out can do more than indicate that some step was taken in relation to the documents in question.  That step may not even have had any immediate human involvement but have been automatically generated by the computer.  It may then have taken some days to actually send out the document in the ordinary course of business.  Thus the letter generated on 8 March 2012 may not have been signed off until 9 March and may only have been posted on 10 March, while that shown as generated on 1 April may easily not have been posted until 3 April.

10. This could affect compliance with the time requirements laid down by regulation 22(2) of the Employment and Support Allowance Regulations 2008.  The 28 days that must elapse between the sending of the questionnaire and the claimant being treated as not having limited capacity for work exclude both the date of sending and the date from which the claimant is to be so treated.  In the present case the date selected by the decision maker of 11 April 2012 allows for the sending having been as late as 13 March 2012.  Had It been necessary for me to make any findings on this question, I would have been disposed to find on the balance of probabilities that the questionnaire would have been sent by that date and indeed that it would probably have been sent by 9 March 2012.  As I am setting aside the decision for other reasons, however, that must be a matter for the new tribunal on the evidence before it.

11. There is then the requirement that at least 3 weeks should elapse after the date of the first request before a second request was sent.  If, on the balance of probabilities, it is found that the first request would have been sent by 9 March 2012, the reminder would have had to be sent not earlier than 1 April 2012, which no doubt accounts for that date appearing on the computer.  In practice it would have been sent on the balance of probabilities at a later date, and if that later date were no later than 3 April, the claimant would have been correctly treated as not having limited capacity for work from 11 April 2012.

12. It was decided in CIB/3512/1998, in relation to the equivalent provision in the old Incapacity Benefit Regulations requiring information to be furnished, that time was to be calculated from the date when the requirement to provide the information was posted, and not from when it was received, and this was also the basis of the decision in R(IB) 1/00.  In this respect it is different from the provisions in the Incapacity Benefit Regulations, now replicated in regulation 23 of the Employment and Support Allowance Regulations, where notice of the time and place of a medical examination has to be sent to the claimant at least 7 days in advance, and by reference to section 7 of the Interpretation Act 1978 it has been held that service is only effected at the time the letter would be delivered in the ordinary course of the post.  That section relates only to the service of a notice, and not to a requirement to provide information.

13. This is not a case where the claimant is alleging that she received either document late and questions when it was posted.  It is a case where she is contesting that it was posted at all.  It is plain that there was a system in place for the posting of such documents many of which are sent out on a daily basis.  Such systems do break down, and letters do go astray in the post.  If the letters were not sent, the requirements of the regulations would not have been complied with.  If they were sent but not received, at least in the case of the questionnaire not being received that would clearly provide the claimant with a reasonable excuse for not complying with the requirement.  

14. While the evidence of posting fell far short of that recommended by me in CIB/4012/2004, and did not show that the documents were posted on the days indicated in the computer print out, there is evidence that they would normally have been posted in the ordinary course of business shortly thereafter.  The tribunal was correct to consider all the evidence to decide whether on the balance of probabilities they were posted and, in relation to the question of reasonable excuse for non-compliance, received.  The exact dates on which they were posted were irrelevant to the question whether they were received, and in my judgment the tribunal would have been entitled to conclude that they were received by the claimant for the reasons that it gave had there been evidence that they were not returned undelivered to the sender.  It ought also to have gone on to consider whether there was sufficient evidence that the documents were sent at the right times in accordance with regulation 22, and was in error of law in failing to do so, although for the reasons I have given it would have been entitled to conclude that on the balance of probabilities the time requirements of that regulation were met, and had I been in a position to substitute my own decision I would so have found.

15. It appears to me, however, that before concluding that the documents were received, enquiry ought to have been made both by the decision maker and the tribunal as to whether they, or either of them, had been returned undelivered to the sender.  I can detect no evidence before the tribunal that this was the case.  The tribunal was not entitled to find that they had not been returned undelivered without evidence to this effect, and for that reason I allow the appeal, set aside the decision of the tribunal and remit the matter for decision by a new tribunal. 

16. In addition, I am not satisfied by the evidence that the second document, described on the computer print out as a reminder, necessarily complied with the requirements of regulation 22(2)(b).  Regulation 21(1)(b) relates to “any information relating to a claimant’s capability to perform the activities referred to in Schedule 2 as may be requested in the form of a questionnaire”.  Under regulation 22(2)(b) the claimant must have been sent “a further request” at least 3 weeks after the date of the first request.  A “reminder” may or may not be adequate for this purpose.  It appears to me that the wording of the reminder should be in evidence to enable the tribunal to determine whether it is a further request for the information requested in the questionnaire.

17. The Secretary of State will need to provide the new tribunal with a copy of the standard reminder used at that time together with evidence as to whether either document had been returned undelivered.  He may also wish to provide further evidence as to the procedures pursuant to which documents are sent, and after what delay, if any, they are sent, when they are generated on the ATOS computer system.  If there is no evidence whether or not the documents were returned to the sender, the tribunal will need to consider the reasons for this and reach its decision on the totality of the evidence before it.  If, of course, either document was returned, this would be further proof that it was sent, but would also necessitate the tribunal considering whether the claimant had good cause for failing to comply with the request.

(signed) Michael Mark

Judge of the Upper Tribunal

23 August 2013