IN THE UPPER TRIBUNAL	Case No.  CE/3989/2012
ADMINISTRATIVE APPEALS CHAMBER

BEFORE UPPER TRIBUNAL JUDGE WARD 

Attendances:

For the Appellant:		Mr M Read, pupil Barrister, instructed by Kirklees Law Centre

For the Respondent		Mr S Cooper, Solicitor

Decision:

The appeal is dismissed.  The decision of the First-tier Tribunal sitting at Wakefield on 13 June 2012 under reference SC008/11/05632 is upheld.
	
REASONS FOR DECISION

1. On 25 August 2011 a decision was taken superseding an earlier decision awarding employment and support allowance (“ESA”) on the grounds that the claimant had failed to attend a medical examination.  It was the Department’s case that an appointment letter had been issued on 14 July 2011 requiring the claimant to attend the examination on 28 July 2011 and that this had been followed up by Form BF223 issued on 29 July 2011 following his non‑attendance.  The claimant phoned on 5 August stating he had just received Form BF223 but had never received the appointment letter.  He completed and returned the BF223 explaining he had had problems with his post being delivered to a similar address in the next town and claiming that a man from the similar address in the next town had hand delivered the BF223.  The claimant stated he had also been receiving mail for this other person and had reported it to Royal Mail.  The decision maker submitted:

	“I am not prepared to accept that [the claimant] has good cause for not attending the WCA.  The appointment letter was issued to the correct address, in particular with the correct postcode.  I find it very hard to believe that the PO would confuse mail between similar addresses with completely different postcodes in completely different towns.  Furthermore I note that [the claimant] is paid his ESA by postal every two weeks.  On no occasion has [the claimant] ever reported non‑receipt of his benefit or late delivery.  If he had truly been experiencing problems with his mail it is reasonable that this would also affect delivery of his giros and result in him making alternative, more secure arrangements for his post.”

2. A letter of appeal on the claimant’s behalf was submitted by his local law centre.  So far as relevant to the present case it explained that the claimant did not intend to miss the medical assessment, was aware of its importance and knew that it was in his best interests to attend.  The claimant had depression and was reliant on assistance from his brother Q.  Q went through the claimant’s post on a daily basis and would have read and dealt with the appointment letter if he had seen it.  Both Q and the claimant believed that the appointment letter could have been sent to the wrong address as there is one other road with exactly the same name in the very same small town.  In the remainder of this decision I refer to the street name as “JW Street” and the town where the claimant lives as “L”.

3. The claimant failed to attend the hearing and the tribunal decided pursuant to rule 31 that it could go ahead.  No point is taken regarding that decision.  It noted that it had considered the submissions made by the law centre and rejected them and on the balance of the evidence found that the claimant had been notified of the appointment for a medical examination.  

4. The claimant then appealed.  The grounds were not entirely clear but were essentially submitting that the Secretary of State had failed to discharge the burden of showing that the relevant notification had been sent and that the tribunal had erred in concluding otherwise.  A district tribunal judge gave permission to appeal.  The Secretary of State did not support the appeal and the claimant’s representative asked for an oral hearing.  

5. On 21 June 2013 Judge Turnbull issued a direction in the following terms:

	“I have done some research on Google maps with a view to attempting to resolve the, on the face of it, surprising statement on behalf of the appellant that there are two roads named [JW Street] …  The position would appear to be that there is a [JW Street] with a postcode [which he then gave] and another with the postcode [which he also gave, the first four characters being the same].  These are both in [L] and only about 500 yards apart.  Although Google maps recognises both these addresses as [JW Street] the map itself does not show a [JW Street] at either of those locations.  It would seem bizarre if there were in fact two roads with that name within 500 yards of each other, but that may be the position. 

	I note that in the Secretary of State’s decision dated 25 August 2011 superseding the appellant’s award of ESA, it was stated that the appellant’s claim on the BF223 (which is no longer available) was that ‘the man from JW Street in the next town hand delivered the BF223 and [the appellant] states that he has also been receiving mail for this other person.  He says that he has reported it to Royal Mail.’  The decision went on to say that ‘I find it very hard to believe that the PO would confuse mail between similar addresses with completely different postcodes and completely different towns’.  It can be inferred from the First‑tier Tribunal’s reasons that it was of the same view.

	However, it appears that the two addresses are not in fact ‘in completely different towns’, but only about 500 yards apart, and furthermore that the postcodes both begin with [the same four characters].  It seems to me well arguable that that fact puts a completely different complexion on the question of whether the appointment letter was delivered to the wrong address, and that the First‑tier Tribunal might well have reached a different decision on the good cause issue if it had known what I have set out above.  It seems well arguable that, regardless of the question whether the Secretary of State has established that the appointment letter was sent, the facts which I have referred to above may justify setting aside the First‑tier Tribunal’s decision, and possibly substituting a decision that, even on the footing that the Secretary of State has sufficiently established that the appointment letter was sent, the appellant did have good cause for not attending.”

6. Judge Turnbull directed a further submission which on 17 July 2013 the Secretary of State made.  This in essence accepted what Judge Turnbull had found while adding a certain amount of additional information but also drew attention to two further addresses also called JW Street one only two miles away (albeit with a wholly different postcode) and a fourth JW Street around six miles away (again with a postcode which was wholly different from the other ones).  The submission writer had made further enquiries of local offices which had revealed neither any reported incidents of postal problems for the claimant nor that staff were aware of any postal problems with the two addresses in “L”.  The Secretary of State’s position was that while he accepted that it was possible that the claimant had not received his invitation letter, on a balance of probabilities the evidence suggested it was unlikely.

7. On 23 October 2013 Judge Turnbull directed an oral hearing, identifying legal issues on which submissions should be made, inviting the parties to consider submitting further evidence in case the Upper Tribunal were to find there was an error of law and to decide to substitute a decision rather than remitting the matter and directing that skeleton arguments be provided to the Upper Tribunal and to the representative for the other party not less than three clear days before the date fixed for the hearing.  

8. Thus it was that the matter came before me as the judge taking the list in Leeds on 27 November 2013.  

9. While the law centre complied with Judge Turnbull’s direction for skeleton arguments, the Secretary of State did not.  What the Secretary of State did do was to submit by e-mail a copy of the decision in JM v Secretary of State for Work and Pensions (ESA) [2013] UKUT 234 (AAC).  No explanation was given and so far as I can see a copy of the case was not sent to those instructing Mr Read; in any event, he had not received one.

10. The decision in JM is a substantial one, running to 81 paragraphs.  The purpose for which the Secretary of State wished to rely on it required consideration only of a limited number of paragraphs within that decision.  The argument based on it was not one that was foreshadowed in the Secretary of State’s previous written submissions.

11. It is not acceptable simply to fail to comply with a direction by the Upper Tribunal.  Even if the Secretary of State’s position had been that he was content to adopt his previous written submissions as his skeleton argument he should have written in to say so.  In fact, his reliance on JM was significantly moving the argument on and in that situation the expedient of adopting the earlier submissions to serve as the skeleton would not have been open to him in any event. 

12. The result of the Secretary of State’s failure was that Mr Read was taken somewhat by surprise and applied at the outset of the hearing for an adjournment.  I refused that application, indicating that I would reconsider it having heard what use Mr Cooper wished to make of the JM decision.  Following completion of Mr Read’s and Mr Cooper’s initial submissions and before Mr Read’s reply, he renewed the application for an adjournment.  By this time the hearing, which had started late for administrative reasons not known to me, had reached the end of its allotted time and I agreed to allow Mr Read to make his reply in writing, which gave him the opportunity to deal with the point which had been somewhat sprung on him by the Secretary of State’s default.  The reply when it was received in turn prompted a further submission from the Secretary of State in the form of “Respondent’s Comments”, suggesting that the appellant’s representative in his reply had misunderstood what Mr Cooper had said at the oral hearing and setting out the case which the respondent was making.  The appellant’s representative may well have misunderstood; but I am bound to observe that in my view there is also a difference of emphasis between how the case was put at the hearing and in the Respondent’s Comments.  Of course, this confusion might have been avoided if the respondent had complied with the direction to file a skeleton argument at the proper time.  I proceed on the basis that the respondent’s position is as set out in the Respondent’s Comments, as having been written at the end of the sequence and thus provided on a considered basis.

13. Regulation 23 of the Employment and Support Allowance Regulations 2008/794 (as it stood at the relevant time) provided as follows: 

	“(1) Where it falls to be determined whether a claimant has limited capability 	for work, that claimant may be called by or on behalf of a health care 	professional approved by the Secretary of State to attend for a medical 	examination.

	(2) Subject to paragraph (3), where a claimant fails without good cause to 	attend for or to submit to an examination listed in paragraph (1), the claimant 	is to be treated as not having limited capability for work.

	(3) Paragraph (2) does not apply unless written notice of the time and place 	for the examination was sent to the claimant at least 7 days in advance, or 	unless that claimant agreed to accept a shorter period of notice whether given 	in writing or otherwise.”

14. Section 7 of the Interpretation Act 1978 provided (and still does) as follows:

	“7. References to service by post.

	Where an Act authorises or requires any document to be served by post 	(whether the expression “serve” or the expression “give” or “send” or any other 	expression is used) then, unless the contrary intention appears, the service is 	deemed to be effected by properly addressing, pre-paying and posting a letter 	containing the document and, unless the contrary is proved, to have been 	effected at the time at which the letter would be delivered in the ordinary 	course of post.”

15. JM was the decision of a three judge panel.  The question before it was whether a particular notice required by a statutory instrument concerned with the conversion of claims from incapacity benefit to employment and support allowance (a) satisfied the requirements of the legislation as to content (on which I need say no more) and (b) was sufficiently “issued” when sent to the relevant person.  The panel, considering the possible relevance of section 7 of the 1978 Act explained that:  

	“51. So, in our view, although we are prepared to accept that regulation 4 notices may be sent by post and although section 7 demonstrates that the concepts of sending can include receipt and so equate to service, section 7 does not assist here because, as we have already mentioned, the word ‘issue’ can have the meaning that it is completed when a document is sent and receipt (or deemed receipt) is not required and, if it does have that meaning, section 7 does not apply.

	52. In our view, the key to determining whether the ‘issue’ required by regulation 4 is completed when the notice is sent or only when it is received is an examination of what the notice is intended to do and whether non‑receipt results in unfairness.”

16. In relation to the particular notice with which it was dealing, the panel concluded at [56] that the word ‘issue’ in regulation 4 is used in the sense of ‘send’ and that it was not intended that the process should have to start again if the document was not received.  In this context, it then went on to say at [57]:

	“57. The fact that Parliament would have been well aware that this would be a 	computer driven process within the Department and would cover a large 	number of cases also supports that view.  There are obvious practical reasons 	why the issuing of regulation 4 notices[ ] should be completed when the 	relevant computer driven process of the Department is completed rather than 	at a later stage of actual or deemed receipt, particularly if the deeming is 	based on a rebuttable presumption.  This is generally the approach taken to 	the millions of notices the Secretary of State has to issue to unrepresented 	claimants each year.  Thus, for instance, regulation 2(b) of the Social Security 	and Child Benefit (Decisions and Appeals) Regulations 1999 (SI 1999/991) 	expressly provides that any notice (including notification of a decision of the 	Secretary of State) required to be given or sent to a claimant under the Social 	Security Act 1998 or those Regulations is treated as having been given or 	sent on the day that it was posted.  This seldom results in any unfairness or 	other injustice[.]  Time limits can be extended or other provision may be made 	where something important gets lost.  The same approach is implicit in the 	2008 Regulations in which it was felt necessary to make specific provision 	equivalent to section 7 of the Interpretation Act 1978 in regulation 65 in 	relation to Part 8, implying that receipt is not an essential part of issuing 	notices under other Parts of the Regulations.  Again, this does not cause 	unfairness or other injustice.  Non-receipt of an ESA50 questionnaire or of a 	notice to attend a medical examination will nearly always amount to “good 	cause” for not submitting the completed questionnaire or attending the 	examination (see regulations 22(1) or 23(2) of the 2008 Regulations).  We are 	quite satisfied that in the 2010 Regulations also, a notice may be issued to a 	person notwithstanding that it is not received.”

17. The appellant submits in essence:

	(a) regulation 23 requires the document to have been served;

	(b) section 7 of the Interpretation Act applies;

	(c) that involves a two stage process, examining (i) has it been demonstrated  	that service has been properly effected in the terms provided and (ii) has 	delivery been proved in fact not to have been made;

	(d) the evidence in this case was insufficient; Judge Mark’s decision in 	CIB/4012/2004 should be preferred to Judge May’s decision in CE/909/2011, 	which was capable of being distinguished or, if it could not, was incorrect and 	should not be followed; nor, to the extent that it is incompatible with his earlier 	decision, should Judge Mark’s more recent decision in CT v Secretary of State 	(ESA) [2013] UKUT 0414 (AAC) be followed; and

	(e) accordingly, the respondent has not demonstrated, as he needs to, that 	the case falls within regulation 23.

18. The respondent submits in essence:

	(a) JM dealt with the word “issue” in reg 4 of a different set of regulations 	(SI/1010/1907) and is binding only as to that, though in other respects is 	persuasive;

	(b) para 57 of JM makes clear that in the 2008 regulations, words were to be 	construed strictly, so “issue” meant “issue”, “send” meant “send” and neither 	was the same as “delivery” or “receipt”;

	(c) section 7 of the Interpretation Act did apply, but the presumption it created 	was a rebuttable one;

	(d) the evidence in the case papers as to sending was sufficient;

	(e) the tribunal had been entitled to hold, in effect, that the claimant had failed 	to rebut the presumption;

	(f) this was not a case where any error of fact which might have resulted from 	the tribunal being unaware of the other JW Streets fell within any recognised 	category of error of law; and

	(g) the issues are in practice the same when a person is arguing “good 	cause”.

19. In my view, the starting point must be the terms of regulation 23.  When the written notice is “sent” arises in the context of paragraph (3).  Notice being “sent to the claimant at least 7 days in advance” is (in general) a precondition to the DWP being able to treat a person as not having limited capability for work under paragraph (2) if he fails to attend.  Even where paragraph (2) does apply, a claimant still has the opportunity to argue “good cause”. A provision to similar effect existed as regulation 8(3) of the Social Security (Incapacity for Work) (General) Regulations 1995 (“the 1995 Regulations”).  There would appear to be a long established legislative principle that  a person’s employment and support allowance (or incapacity benefit) could only be put at risk for failing to attend such an appointment if they had been given a certain amount of prior warning of it.  That is unsurprising, as medical assessments are not things that come round regularly and cannot be planned for.  A person who is summoned to attend may have a variety of practical things to sort out before they can attend, whether it be travel arrangements, or getting a person to come along to provide moral support or interpretation, or alternative arrangements for the care of children for whom they may be responsible.  Some people may need a little time to prepare themselves psychologically for what is unlikely to be a welcome experience or to assemble relevant evidence (such as the range of medication they are on).

20. That there should be a degree of prior warning for the claimant’s sake is consistent also with it being for a claimant to agree to accept a shorter period of notice.

21. This is not a case where the amount of advance notice given is in issue, so I do not express a view as to what the amount is for which the regulation provides.  But the fact that we are not concerned with a situation where notice was given but was too short does not mean that the point is therefore irrelevant: rather, the overall structure of the regulation sheds light on what “sent” must mean in this context.

22. I consider that this provision does exist to confer a real degree of protection on a claimant and thus that the receipt of it by him or her is fundamental.  For my part, unless constrained by authority, I would not incline to the view that the existence of the “good cause” provisions means that sending (as opposed to receipt) is what is envisaged by regulation 23.  I say this for two reasons. First, there is the two stage process created by paragraphs (2) and (3) of regulation 23, as noted above.  Secondly, leaving it to be argued within “good cause” in my view dilutes the legislative protection offered.  “Good cause” is a flexible concept, a question of judgment and therefore susceptible of differing judgments by different tribunals against which there could be no realistic chance of onward appeal.  Moreover, reliance on the concept puts the burden on the claimant rather than on the Secretary of State.  These consequences were evidently intended once the DWP was over the initial seven day hurdle, but is unlikely to have been the intention in my judgment to have been the intention otherwise.

23. As to the impact of authority, Mr Cooper submits that JM is persuasive rather than binding.  I return in a minute to whether that concession is correct.  If Mr Cooper is right, then I regret that I am unable, with respect, to agree with the observations at [57] of JM.  The 2008 Regulations have 14 parts, some containing several chapters, plus nine schedules.  They have to cover not only the assessment of limited capability for work and for work related activity, but a host of other matters connected with the award of ESA, which can be awarded either by a contributory or an income related route (thus requiring , for example, detailed financial provisions).  Some parts (such as reg 23) have obvious parallels in predecessor legislation, others do not.  I respectfully doubt the extent to which the 2008 Regulations can properly be construed as a uniform whole.

24. Regulation 65 appears in Part 8, which deals with “Conditionality” , a part designed to encourage those with sickness or disabilities to take part in work-focused health-related assessments and/or work-focussed interviews, with the stated intention of helping them towards work despite their condition and providing also for the reduction of their ESA if they failed to co-operate.  Regulation 65 does not replicate section 7 of the Interpretation Act, but goes further, in creating an irrebuttable presumption of receipt.  I therefore regard it as a measure concerned with the manner in which it was sought to implement the measures contained in Part 8, rather than having any implications for the rest of the 2008 Regulations.  Nor, for the reasons I have already given, do I agree that “good cause” provides a sufficient answer.

25. The reason why section 7 of the Interpretation Act was not relevant in JM, was because “issue” in the context of regulation 4, with which the three judge panel was concerned, was held to be completed when the notice is sent and not only when it is received.  As the panel in JM put it at [52]:

	“In our view, the key to determining whether the “issue” required by regulation 	4 is completed when the notice is sent or only when it is received is an 	examination of what the notice is intended to do and whether non-receipt 	results in unfairness.”

In my view, this is the principle for which JM provides authority.  That is what I have sought to do at [19]- [22] above in relation to the different provision with which I am concerned.  The words quoted above appear inconsistent with Mr Cooper’s submission summarised at [18(b)] above, which accordingly I reject.

26. The panel’s conclusions in relation to the provision with which it was concerned appear at [56]:

	“The very limited importance of the information contained in a regulation 4 	notice points strongly to the conclusion that in regulation 4 “issue” is used in 	the sense of “send” and that it was not intended that the process should have 	to start again if the document was not received.”

This then was the background against which the panel reached paragraph 57 of its decision.  Essentially the panel is there making a point, in the context of a notice  which it has already held contains information only of “very limited importance”, that it made sense for a computer-driven process to be assessed by reference to when that process was completed, rather than by reference to when each notice should be treated as served pursuant to a rebuttable presumption. Examples were given of other provisions in social security law said to have the same effect, including regulation 2(b) of SI 1999/991 (which demonstrably does so) and what was said to be “implicit” in the 2008 Regulations.  It is most unlikely that the panel was intending to rule in binding terms on the effect of every notice which might come to be served under all parts of the 2008 Regulations other than Part 8 and the decision shows no evidence of consideration of the authorities in relation to regulation 23 or its predecessor (though the panel would no doubt have been aware of them). What we have  therefore is a second illustration, possibly without having received detailed argument on the point, made to back up the panel’s main conclusion on a different regulation.  

27. I proceed therefore on the footing that Mr Cooper’s concession is correctly made, though it is not necessary to decide the point and I do not do so, as if [57] of JM is binding on me as to the interpretation of regulation 23, so that the question of receipt or not falls to be considered under the rubric of “good cause”, the outcome would in this case be the same: see [43] below.

28. It follows from the view that I have taken as to regulation 23 that, as Mr Cooper also submits, section 7 of the Interpretation Act is relevant.  This takes us to the adequacy of the evidence.  The case papers included a printout bearing a URL belonging to Atos Origin, setting out, without further explanation, tabulated information including a row showing (under “letter type”) “appointment letter”; (under “date triggered”) 14 July 2011; (under “addressee type”) “client”; and (under “address”) the claimant’s address at 2A JW Street in “L” with (apart from the lack of the necessary gaps) the correct postcode.  

29. There is a further sheet showing details of “MEC Appointments” giving details, inter alia, of “Appointments Made” .  There was no evidence as to either sheet as to what the entries signified or how the sheets were compiled.  Nor was there anything material on this point in the written submission, other than the mere assertion that “the appointment letter was issued to the correct address, in particular with the correct postcode.”  There was no evidence dealing with whether any post had been returned either.

30. Mr Read seeks to make much of the fact that the source of the evidence is not the DWP itself but Atos Origin, who, as is well-known, are responsible for conducting such medical assessments on behalf of the DWP.  There is absolutely no reason in my judgment why that evidence was not relevant and admissible, so far as it goes.  Tribunals do not have strict rules of evidence.

31. I turn to the three cited Upper Tribunal authorities regarding the discharge of the burden of proof on the Secretary of State in this context.

32. In CIB/4012/2004, Judge Mark (then a Deputy Commissioner) said:

	“22. I can see no reason why, in establishing whether the requirements of 	regulation 8(3) have been met, the secretary of state cannot provide a simple 	short written statement from the appropriate person giving the date on which 	the written notice was posted, the time at least to an extent sufficient to show 	whether or not it would have been collected that day by Royal Mail from the 	post box, and the address to which it was posted, and also stating whether it 	was sent by first or second class post.  The statement should also confirm that 	the letter has not been returned undelivered.  

	23. It appears to me that in future there should be evidence available from the 	secretary of state dealing with those issues before a decision maker comes to 	a decision.  If it is not stated whether first or second class post was used, the 	decision maker should either seek further evidence or assume that second 	class post was used.  If there is a further issue as to whether it was posted to 	the correct address, as in this case where there has been a change of 	address, the secretary of state will normally need better evidence of the 	address to which it was posted than a later computer generated print out 	showing the address on the file at that later date.”

However, this was in the context of a letter which was said to have been sent much closer to the time limit provided for by (in that case) regulation 8(3) of the 1995 Regulations and the exact date and possibly time of sending and whether first or second class post was used were all critical to deciding whether the regulation was met, as was which of the claimant’s addresses (he had recently moved) had been recorded on the computer at any given time.

33. Even in this decision, though, the high point of decisions requiring a high standard of evidence on this issue, Judge Mark was prepared to say:

	“Nor can I be certain that “issued” is equivalent to posted, although it might 	well be appropriate to infer, in the absence of evidence to the contrary, that a 	letter giving notice of an appointment was posted within a day or so of its 	being issued.“ 

For my part, I am unable to draw any meaningful distinction in this regard, in the absence of detailed evidence as to the function of the computers, between “issued” and “triggered” (used in the evidence in this case)..

34. In a later decision, CT v Secretary of State (ESA) [2013] UKUT 0414 (AAC) Judge Mark was concerned with evidence of sending in a different but associated statutory context.  The relevant letter was said not to have been received at all and the evidence similarly consisted of a printout by Atos Origin of the relevant computer entry.  The judge held:

	“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.
	…
	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. “ 

35. In CE/909/2011, before Judge May QC, the evidence was a similar printout.  The challenge was to whether the evidence did more than show an intention to send a letter and whether that a letter was “triggered” was evidence that it was posted.  Judge May concluded that the tribunal had made proper findings of fact based on the printout and accepted a submission from the Secretary of State that “the fact that the word “triggered” was used should not mean that it is uncertain whether that letter was posted; this is a list of the letters that were issued.”  I do not accept Mr Read’s attempted distinction of this case.  While there may have been oral evidence given to the First-tier Tribunal in that case, in the present case the evidence relied upon was in documentary form: see [39] below.  The route by which the tribunal got the evidence is not important: what matters is that it did so.

36. In the present case, we are not concerned with some of the more detailed complications as to timing, or the addresses used, which needed to trouble Judge Mark, particularly in his earlier decision.  There may well be cases which merit the more detailed approach to the provision of evidence which was needed in his first decision.  But I accept the tendency reflected in both Judge Mark’s later decision and that of Judge May that in the more straightforward case – and where a claimant has the opportunity of rebutting receipt - printouts of the type in issue are capable of providing evidence from which a tribunal may draw inferences that a document was “sent”.  It is then for the tribunal of fact to decide what weight to put on it.

37. Nether the claimant nor the law centre had attended the hearing of the tribunal and the submission from the law centre had taken no point about the adequacy or otherwise of the evidence that the DWP had sent the notice, concentrating rather on the possibility that the letter (which by implication had been sent) was misdelivered to the other JW St in L.

38. The tribunal’s statement of reasons so far as relevant said:

	“The tribunal [rejected the submissions of the Law Centre] and on the 	balance of the evidence tribunal found that the appellant has been notified 	of the appointment for medical examination in relation to the Work Capabilities 	Assessment.

	The appellant was paid his Employment and Support Allowance by postal 	gyro every two weeks.  Those gyros have been cashed and therefore it was 	reasonable to believe that the notice of medical appointment sent to the same 	address would have been received by the appellant.”

I do not criticise the tribunal for not in terms addressing the evidence of whether something had been “sent” in accordance with section 7 where a claimant’s legally qualified representatives had not taken the point and on the authorities, which by that time included CE/909/2011 though not the CT case, it was not crying out to be addressed.

39. The question then arose whether the claimant could rebut the presumption of service.  The point that the claimant had been paid by fortnightly giros without ever having reported non-receipt or late delivery of his benefit had been contained in the DWP’s written submission to the tribunal and had not been challenged.  In PL v Walsall MBC [2009] UKUT 27 (AAC) Judge Jacobs held that:

	“Evidence given by submission writers or presenting officers, even if hearsay, 	is as capable of being logically probative as evidence, whether or not hearsay, 	given by anyone else.”

That being so, it seems to me that on the evidence before it, the tribunal was entitled to conclude that the appellant had not succeeded in rebutting the presumption.  

40. There then remains the question whether the tribunal’s decision was flawed in law by its approach to  the suggestion (which was in the papers before it) that there was more than one JW Street in L and/or another one in the “next town”.  The appellant was legally represented. His advisers would have been well aware of the necessity of getting evidence in for the First-tier Tribunal hearing, yet for whatever reason this was not done.  That does not meet the requirements for a mistake of fact amounting to an error of law, as set out as limb vii at [9] in R(Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982.  If one applies the test in E v Secretary of State for the Home Department [2004] EWCA Civ 49, it would be necessary first top apply the principles in Ladd v Marshall [1954] 1 WLR 1489.  An attempt to rely on further evidence would fall foul of this test as it could have been obtained with reasonable diligence for use at the hearing.  It would then be necessary to consider whether the circumstances were so exceptional as to justify a departure from that rule.  I do not consider they are, not least as I am not persuaded that it is likely the tribunal would have held differently, even with the additional knowledge, in view of the evidence about the lack of giros going missing.

41. Nor do I consider that the tribunal’s inquisitorial jurisdiction required it to investigate something which on its face appeared far-fetched (even though it has since proved to be true), when the claimant’s experienced legal advisers had not done so.  

42. It follows that this appeal fails.

43. If I were to be wrong as to the effect of the three judge panel in JM regarding regulation 23, it makes no difference in the result.  On the panel’s reasoning, the matter would fall to be considered under whether the appellant had “good cause” for his non-attendance. On the basis of the tribunal’s conclusion, entirely sustainable for the reasons I have given, that the appellant did not fail to receive the notice, he would likewise fail to have good cause.  No other ground for claiming “good cause” was put forward on his behalf. 
.
(Signed on the Original)
C G Ward
Judge of the Upper Tribunal
20 February 2014