DW v SSWP (ESA)

For the notice requirement in regulation 23(3) of the Employment and Support Allowance Regulations 2008, there is no fixed legal rule

In a straightforward case, a computer printout headed View Letter History, together with evidence that its recorded date is the date of sending, may support a finding that an appointment letter was sent. More detailed evidence of posting may be needed where timing, address, or other circumstances create a genuine issue. The statutory presumption of service may then operate if the conditions for it are established.

The appellant failed to attend a medical examination arranged for 27 November 2012 in connection with his employment and support allowance claim. The Secretary of State treated him as not having limited capability for work.

The First-tier Tribunal at Leeds upheld that decision on 21 May 2014. It found that an appointment letter had been sent on 14 November 2012, relying on a View Letter History printout and a supplementary submission explaining that the printout recorded letters sent by ATOS.

On appeal, the appellant contended that such a printout could never, without a copy letter and proof of posting, establish the written-notice condition in regulation 23(3) of the Employment and Support Allowance Regulations 2008.

1. Appeal dismissed. The First-tier Tribunal made no material error of law. Its decision upholding the Secretary of State’s decision stood.

2. Regulation 23(3) of the Employment and Support Allowance Regulations 2008 prevents the adverse consequence in regulation 23(2) unless written notice of the time and place of the examination was sent at least seven days in advance, subject to agreement to shorter notice. The issue was whether the evidence could support the finding that notice had been sent on 14 November 2012.

3. CIB/4012/2004 did not prescribe a fixed legal requirement for a witness statement, a copy of the letter, or proof of posting in every case. Its observations about better evidential practice were guidance. The fact-finding tribunal must decide, on the evidence before it, whether notice was sent and what weight to give that evidence.

4. Unlike CIB/4012/2004, the Secretary of State had provided evidence that the date recorded in the View Letter History was the date on which the appointment letter was sent. The contents of the supplementary submission were capable of being evidence. The printout identified the appellant, his address, the appointment-letter type, and the date triggered. Read with the examination history, it was a proper basis for finding that the letter had been sent on 14 November 2012.

5. The Tribunal followed AL –v- SSWP, [2011] UKUT 512 (AAC), and SH–v-SSWP (ESA), [2014] UKUT 574 (AAC). Those authorities supported the conclusion that, in a straightforward case where the claimant can rebut receipt, printouts of this kind can provide evidence from which a tribunal may infer that a document was sent. No issue arose concerning an incorrect address or the timing of service once sending was found.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the appellant’s appeal and left the First-tier Tribunal’s decision in force.
• First-tier Tribunal, Leeds: on 21 May 2014, upheld the Secretary of State’s decision of 8 December 2012.