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Valid removal?
I am looking at possible grounds for UT but I having been on leave and in relation to dates of decision/supersession etc my brain has given up.
Here is the timeline:
- Client was awarded LRC/HRM (from 20.05.13) by a decision dated 11.03.13.
- Client disputed the decision and it was reconsiered but not revised - Client did not appeal.
- Client made a supersession request on 23.10.13 on the basis of increased care entitlement.
- On 04.11.13 DWP decided LRC/HRM was correct - Client appealed this decision.
- FtT gave a warning regarding possible loss of all entitlement and subsequently revised the decision dated 04.11.13 and removed all DLA entitlement from 20.05.13.
Client has now sought advice and I have a possible ground to challenge regarding evidence not considered however something about the above decision timeline felt hinky!!! (like I said brain has turned to mush).
If I had posted before refreshing my memory of R(IB) 2/04, I would have said something like this:
I don’t think the Tribunal had jurisdiction to go back that far: the matter under appeal was the refusal of the application for supersession in October. The non-appealed decision from May was final. I cannot see how the Tribunal had jurisdiction to initiate a revision of a decision that was not on the table - that would be a matter initially for the Secretary of State: DWP would have to make out grounds (ignorance of facts etc) and the claimant would then have a right to appeal against that revised decision.
But after looking at para 55 of R(IB) 2/04 I am wodnering whether the May decision was on the table because (i) the claimant had asked for it to be superseded (that decisoin being the current one running on the date of the application for supersession) and (ii) the Tribunal decided that it needed changing, but by way of revision instead of supersession and not in the claimant’s favour. Persumably because the decision was in some way faulty - made in ignorance of crucial facts. I don’t think the Tribunal would have jurisdiction to revise it on subjective merits, because neither would the DWP and the Tribunal is only stepping into the DWP’s shoes. We know from the Wood case that the DWP cannot use a claimant’s application as an excuse to re-open something that would otherwise have been final with no independent grounds for revision and I guess that must apply equally to the Tribunal when it relies on para 55 of R(IB) 2/04.
Say the case involved a means-tested benefit. The claimant was awarded some benefit, but not the full rate in May. In October he applies for supersession on the basis that his income has reduced. The application is rejected and he appeals. During the course of the appeal, the Tribunal discovers that the claimant has undisclosed capital in excess of £16,000. It has jurisdictoin to revise the May decision because it has rumbled something that clearly provides grounds for revision.
However, say the case involved HB on a slightly dodgy tenancy - renting from a relative. The Council has all the facts and after some hesitation decides to let this one go. Some months later the case comes up for supersession on a means-testing point and the claimant appeals against the supersession decision. The Tribunal says “which idiot paid HB on this plainly dodgy tenancy?” and revises the original decision (instead of superssion). I would say R(IB) 2/04 does not support such action bcause that decision really was final - there are no grounds to revise simply because you have changed your mind.
Para 194 of R(IB) 2/04 -
194. An appeal tribunal is entitled to make a decision less favourable to the claimant than the decision under appeal. In particular, on an appeal against a refusal of a claimant’s application for supersession of an award of disability living allowance (or against a supersession which was not as favourable as the claimant wished), an appeal tribunal is entitled to supersede (or revise) the original decision on a ground which leads to a decision less favourable to the claimant than the decision under appeal. However, unless the Secretary of State has in his submissions to the appeal tribunal raised the issue as to whether a less favourable decision should be made, the tribunal must consciously consider whether to exercise its discretion under section 12(8)(a) of the 1998 Act to take into account issues not raised by the appeal. This is a discretion to be exercised judicially, taking into account all relevant circumstances. If a statement of reasons is given, then reasons for the exercise of the discretion should be set out. In addition, the appeal tribunal must be satisfied that there has been compliance with the requirements of Article 6 of the European Convention on Human Rights and of natural justice (paragraphs 88 to 97).
The last part of that may give an avenue for challenge, if the tribunal has not explained why it exercised discretion to revise the decision of 11.3.13.
Just wanted to say thanks guys.
Decision set aside and remitted to a new panel 😊