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Upper tribunal appeal when a later award is made
Hi
A client of mine lost a PIP appeal, with no award being made.
A new application was made and the client was awarded standard rate daily living and standard rate mobility
However, I have just read through the tribunal’s statement of reasons and I think I have found an error of law. If I appeal the decision to the upper tribunal, would the existing award be in jeopardy? EG if the first decision was changed from no award to standard rate daily living but no mobility.
Thanks
yes, because it’s entirely possible the UT judge, if s/he decides there was an error of law, to remit the entire thing back to a new FTT to start from scratch.
yes, because it’s entirely possible the UT judge, if s/he decides there was an error of law, to remit the entire thing back to a new FTT to start from scratch.
Thank you, I am aware that a new FTT could take place but could the award they make interfere with the later award or would it be a wholly retrospective award?
yes, because it’s entirely possible the UT judge, if s/he decides there was an error of law, to remit the entire thing back to a new FTT to start from scratch.
Thank you, I am aware that a new FTT could take place but could the award they make interfere with the later award or would it be a wholly retrospective award?
not sure what you mean?
if you appeal, UT allows appeal and refers back down, FTT starts again; the decision the FTT originally made having been overturned on appeal, it would no longer exist…..you are back in FTT appealing DWP’s original decision…
2nd application award is the last operative decision thereby making the first appeal & any subsequent UT application a ‘closed period’ or have they changed this as well?
yes, because it’s entirely possible the UT judge, if s/he decides there was an error of law, to remit the entire thing back to a new FTT to start from scratch.
Thank you, I am aware that a new FTT could take place but could the award they make interfere with the later award or would it be a wholly retrospective award?
If you end up back at FTT and lose (let’s assume nil entitlement) then your client has nil entitlement going forward and nil entitlement going backward. However, whilst what has already been paid to him is strictly speaking an overpayment, it won’t be recovered.
Also, given the fact that SRDL opens the door to SDP in any means-tested benefit or a CA claim, I would be very cautious indeed about a further appeal unless I was so confident about the legal conditions of entitlement and the strength of the medical evidence that I was near enough certain that the existing award was safe.
I feel that people may be speaking at cross-purposes here..
My understanding of OP’s post is that the punter has made 2 claims - the first claim was refused by the DWP and by the FTT. For the sake of argument say that claim was effective from 01/01/2015. The second claim (lets say this was effective from 01/01/2016) led to the DWP awarding SRDL/SRM with no appeal being made.
OP is looking at appealing the FTT decision which was on the first claim.
Assuming success at the UT and remittance to the FTT, whatever the new FTT decides would be concerned with (say) 01/01/2015 onwards but whatever decision they made would be superseded by the DWP decision of (say) 01/01/2016. The appeal would not have any bearing on events from then onwards. The 2016 decision is not under appeal and the Tribunal have no business considering it.
So no, there would be no risk to your client’s current award, but equally if a better award were made it would only concern the period between the first and second decisions. It is what the DWP refer to as a ‘closed period’ issue.
Aye, that reading of the o/p makes more sense - I confess to having just gone along with the other responses.
I feel that people may be speaking at cross-purposes here..
My understanding of OP’s post is that the punter has made 2 claims - the first claim was refused by the DWP and by the FTT. For the sake of argument say that claim was effective from 01/01/2015. The second claim (lets say this was effective from 01/01/2016) led to the DWP awarding SRDL/SRM with no appeal being made.
OP is looking at appealing the FTT decision which was on the first claim.
Assuming success at the UT and remittance to the FTT, whatever the new FTT decides would be concerned with (say) 01/01/2015 onwards but whatever decision they made would be superseded by the DWP decision of (say) 01/01/2016. The appeal would not have any bearing on events from then onwards. The 2016 decision is not under appeal and the Tribunal have no business considering it.
So no, there would be no risk to your client’s current award, but equally if a better award were made it would only concern the period between the first and second decisions. It is what the DWP refer to as a ‘closed period’ issue.
thats my reading of it
Further to this, in a related but slightly different set of circumstances.
The exact dates don’t matter, so let’s say a client made a claim on 1/1/2015 and was awarded PIP for 2 years at standard rate mob and DL until 1/1/2017. She appeals this decision (let’s call it decision (a)) and is refused, with the original award being maintained, and takes the case to the UT. The case is successful in the UT and is referred back to a new FtT for rehearing this summer. In the meantime, she is asked to renew her award a year in advance (as is the standard practice) in January 2016, and this results in an award of SR mob SR DL again, from May 2016 until 2020 (decision (b)).
Client wins her appeal at the rehearing in July 2016 against decision (a) and is awarded PIP ER mob and ER DL until 2025. She’ll obviously be paid from 1/1/2015 until May 2016 at these rates on the basis of decision (a) as revised by the Tribunal, but which decision is applicable from May 2016? Decision (a) or decision (b)?
Formally speaking, decision (b) must supersede decision (a). The DWP can decide to re-assess anyone at any time and for any reason. Having done so, the existence of a new assessment report is a ground for supersession. The nominal “fixed term” of the award doesn’t have any legal effect - it just tells the DWP supercomputer when you need to be re-assessed.
However, the FTT decision in (a) may constitute grounds for an any-time revision of decision (b) on the basis that, had the FTT result been known, decision (b) would have been different - see p1269 of CPAG.
I feel that people may be speaking at cross-purposes here..
My understanding of OP’s post is that the punter has made 2 claims - the first claim was refused by the DWP and by the FTT. For the sake of argument say that claim was effective from 01/01/2015. The second claim (lets say this was effective from 01/01/2016) led to the DWP awarding SRDL/SRM with no appeal being made.
OP is looking at appealing the FTT decision which was on the first claim.
Assuming success at the UT and remittance to the FTT, whatever the new FTT decides would be concerned with (say) 01/01/2015 onwards but whatever decision they made would be superseded by the DWP decision of (say) 01/01/2016. The appeal would not have any bearing on events from then onwards. The 2016 decision is not under appeal and the Tribunal have no business considering it.
So no, there would be no risk to your client’s current award, but equally if a better award were made it would only concern the period between the first and second decisions. It is what the DWP refer to as a ‘closed period’ issue.
thats my reading of it
This might have been mentioned before…..
That could be correct. One argument could be the second decision leading to the later award was made on the grounds your clients condition got worse or changed since the original decision under appeal. In that case the Tribunal cannot look at the new decision as it is something that occurred after the date under appeal. That could cause cause a problem for the first decision if it is successfully overturned. This is because technically the earlier decision cannot be made on the same grounds of the later decision as that was based on a change of circumstances. If arguments are then put forward in the earlier appealled decision that suggest this is not the case it could be argued that no later change has occurred. This could technically bring the second decision into the appeal as circumstances were obtaining to the time when the decision appealled was made and thereforwe SSA 1998 S.12 (8) (b) does not apply.
I feel that people may be speaking at cross-purposes here..
My understanding of OP’s post is that the punter has made 2 claims - the first claim was refused by the DWP and by the FTT. For the sake of argument say that claim was effective from 01/01/2015. The second claim (lets say this was effective from 01/01/2016) led to the DWP awarding SRDL/SRM with no appeal being made.
OP is looking at appealing the FTT decision which was on the first claim.
Assuming success at the UT and remittance to the FTT, whatever the new FTT decides would be concerned with (say) 01/01/2015 onwards but whatever decision they made would be superseded by the DWP decision of (say) 01/01/2016. The appeal would not have any bearing on events from then onwards. The 2016 decision is not under appeal and the Tribunal have no business considering it.
So no, there would be no risk to your client’s current award, but equally if a better award were made it would only concern the period between the first and second decisions. It is what the DWP refer to as a ‘closed period’ issue.
thats my reading of it
This might have been mentioned before…..
That could be correct. One argument could be the second decision leading to the later award was made on the grounds your clients condition got worse or changed since the original decision under appeal. In that case the Tribunal cannot look at the new decision as it is something that occurred after the date under appeal. That could cause cause a problem for the first decision if it is successfully overturned. This is because technically the earlier decision cannot be made on the same grounds of the later decision as that was based on a change of circumstances. If arguments are then put forward in the earlier appealled decision that suggest this is not the case it could be argued that no later change has occurred. This could technically bring the second decision into the appeal as circumstances were obtaining to the time when the decision appealled was made and thereforwe SSA 1998 S.12 (8) (b) does not apply.
I know this is a hard question to answer, but how likely is this to happen in practice?
This is because technically the earlier decision cannot be made on the same grounds of the later decision as that was based on a change of circumstances.
This line of reasoning is negated by Regulation 11 of the PIP regs. The DWP can choose to re-assess someone afresh at any time and for any reason. Whether their circumstances have actually changed since the last assessment is irrelevant. The DWP have learned their lesson on that front.
• Social Security (PIP) Regulations 2013 regulation 11 essentially reports ‘the secretary of state may, for any reason and at any time determined afresh in accordance with regulation 4 whether a claimant continues to have such limited ability or severely limited ability.’
• The Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013 regulation 22 states supersession can only take place if the grounds set out in the regulations 23, 24, 25, 26, 27, 28, 29, 30, & 31.
• IE
o Reg 23 Change of circumstances.
o Reg 24 Error of law, ignorance or mistake as to a material fact.
o Reg 26 (1) (a) & (2) Medical evidence from a HCP approved by the SoS.
The point also stands on the change of circs for an appeal and the point of a Tribunal considering the first decision and can they then look at the later decision as part of the appeal.
From my understanding the Law remains unchanged the first claim is a closed period, as that has to be viewed as to the facts at the time of the original decision, which is likely to be 6mths or a year after the original decision. Any award at the new hearing, would only run up to the day before the new claim, and a backdated lump sum is what the claimant would receive if PIP awarded, and the new award would continue as it is .
If you have doubts ask the Judge on the day of the hearing, and if they confirm that they can look at the new claim withdraw , as is your legal right.
But I feel it has all got a little confused in the previous posts, unless there is new law I am unaware of, the first claim is limited to a closed period whether the UT substitute the decision or refer to a new hearing., I am confident I am right as I have just done a similar UT application and at the same time made a fresh claim for PIP,the UT has referred the first claim back for a new hearing.
The new claim was awarded from the 8/2/2016 was successful, and now the new FtT as been directed to restrict its decision for the first claim to the period 15/6/2015 to the 7/2/2016. The first day of the claim, until the day before the new claim.
I hope that helps