Advisers are reporting delays in receiving DWP submissions. Ed Pybus looks into the issue.
Some appeal representatives at First-tier Tribunals have reported long delays before they receive the DWP’s submission, sometimes even not receiving a submission before the appeal is heard. Advisers from across the UK appealing a range of benefits are affected.
1https://www.rightsnet.org.uk/forums/viewthread/14273 It is not known exactly how widespread this problem is.
The tribunal rules
2r24 Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, No.2685 clearly state that the DWP ‘must’ send a response within 28 days of the decision maker receiving a notice to appeal. This response should include a ‘submission’ and ‘copies of all documents relevant to the case in the decision maker’s possession.
3r24(4)(b) Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, No.2685As well as this clear obligation upon the Department, tribunals can (also direct a response, or a specific document (such as the official medical report). A recent case from the Upper Tribunal,
4NW v SSWP, NW v SSWP (PIP) [2019] UKUT 150 (AAC), CPIP/2717/2018 confirmed that, where a party has failed to comply with a direction from the First-tier Tribunal under the tribunal rules, including failure to provide a ‘document’, they can be referred to the Upper Tribunal for consideration for a fine or imprisonment. However, in Ap v HMRC
5AP v HMRC (Tribunal procedure and practice (including UT): tribunal jurisdiction) [2014] UKUT 182 (AAC), reported as [2014] AACR 37 it was held that a ‘submission’ is not a ‘document’ within the scope of the relevant rule in the Tribunal Procedure rules
6Reg 7(3)(e) Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, No.2685 and therefore a failure to provide a submission cannot be referred to the Upper Tribunal.
For obvious reasons, tribunals are reluctant to proceed without a response (ie, including a submission) from the Department. It is understood that one approach of the First-tier Tribunal is to direct the appellant to provide all the information and documentation s/he has about her/his claim. If there is no reply to the reminder sent to the DWP regarding a submission, a judge then considers whether the appeal can be decided without a response from the Department. Cases are not listed until parties have had one month to review any response, unless the parties waive that right. If a case being listed provokes the DWP to lodge a submission, then a postponement could be requested to allow that to be considered.
In many cases the DWP is failing to provide either a submission or any of the papers that are relevant to the case. It appears the current HM Courts and Tribunals Service policy is, where possible, to list such case.
However, there are cases where the subject matter means that cases can’t be listed as it is unlikely that they can be fairly determined in the absence of the papers. This may cause a particular issue with personal independence payment (PIP) appeals, where the decision-making history may be relevant, and some universal credit (UC) cases, as in many cases the claimant may not be able to provide all the information that is needed to decide the case.
Advisers should be aware that:
•in some instances, there are currently significant delays in the DWP providing submissions and appeal papers;
•providing as much information as possible may allow the appeal to go ahead without the DWP papers; and
•if a DWP submission is received late, an adjournment can be requested to allow proper consideration – although this is on request, not demand.
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