In a Care appeal of DLA (looking to increase low to middle) can a Tribunal "open up" and question the current mobility award if it is not the subject of the appeal?

I would also be interested on Rep opinion of what the chances are of a tribunal that is questioning a current award then increasing said award.

I think the law provides some procedural protection (CDLA/884/2008) but I can understand a client feeling the panel has prejudged the case to an extent and that it is especially unlikely that the award will actually be increased.

The tribunal has an inquisitorial role but if the Dept. continue to agree that the current award is suitable, should they be questioning it at all to the extent that it interferes with the fair hearing of the appeal.

In reality a large proportion of these type hearing are spent “defending” the current award.

I would welcome opinion or link to previous discussion.

Yes they can.. Tread ye carefully

However, the tribunal must put you on notice at the outset of the hearing that it is going to do that and grant you a brief adjournment to take instructions or grant you a full adjournment to prepare argument or gather evidence.

Unfortunately, unlike previously, under the new tribunal rules you cannot withdraw the appeal anymore once the hearing has started without the tribunal's permission.

They do not have to open the question up, but they certainly can. If seeking an increase of one component it is important to ensure the existing award is as safew as possible. Request a full copy of all ev on the file since the person first was awarded the Allowance. Check the strength of all the ev.. Request F.M.E. in relation both to what you are seeking toi be increased AND also what is already extant as an award. Only then will you be able to go in there with confidence that the existing award is as safe as it can be. (e.g. if appellant has H.R.Mob and seeks Care Comp then get ev which shows wallking is very limited <40 yards or less, or more than this if speed, manner, l.of t. etc. are also factors involved> as well as Care comp evidence.).

Tread ye carefully indeed!.

Yes Nevip I used to occasionally use that trick of withdrawing if the case looked seriously on the skids too!.

At a recent tribunal the chair informed the client and myself they intended to look at the 'whole' award when we were only looking for care to be increased and had not completed any of the mobility part of the change of circs form.
He stated 'I am asking this before we start this hearing to give you chance to withdraw'.
This gave a clear indication that we had to spend a great deal of the time 'defending' the current award and would struggle to get an increase.
We carried on as I had good supporting evidence for mobility but in future will, as already commented, be very wary once asked.
The result was, predictably, current award continued but no increase.

I often begin my submissions with something along the lines of "mrs X's care needs are set out in detail on her claim and are supported by .......(evidence of care needs). We note that the Secretary of State has not brough her care needs into issue and we submit that the tribunal need not consider them further" This usually brings a response from them at the beginning of the hearing that they are /are not going to consider them. I know its a small point but it seems to help things go smoothly.

"We note that the Secretary of State has not brough her care needs into issue and we submit that the tribunal need not consider them further"

Thats a good point. There is authority somewhere for the point that a tribunal should be slow to wander into teritory that is not in dispute between the parties. I'll have to ferret around for it.

Found it. Its CDLA/884/2008, paras 8-11.

Thanks for the replies.

(CDLA/884/2008) This was the legislation i referred to in my original post above. I understand the difficulties & dangers of proceeding and would be interested in opinion of a client realistically getting a fair hearing in such a case.

I have experienced a number of tribunals where the Dept do not dispute the current award (even where the evidence that has become available to the tribunal is specifically identified).

Naturally the client will question their chances of a fair hearing when they are requesting and "increase" yet the tribunal is acting beyond the Dept in considering a "decrease".

Issues of perceived fairness arise elsewhere.

I know the tribunal has an inquisitorial role but in such a grey area is there any lines that could be drawn?

I know this is a common topic and I am aware of CDLA/884/2008 and para 94 of R(IB) 2/04 etc...all of which places a burden on Tribunals to exercise caution in making any decision adverse to the position at which the claimant arrives at the hearing..especially if evidence within the appeal appears to support the existing claim.

The need for a Tribunal to notify the claimant of its intention to consider the whole of an award seems a well-established practice.

However, I've just been instructed on one where client was on MRC and LRM at 1st claim and (foolishly with hindsight) appealed the decision looking for HRM/HRC.

I didn't advise him at this point (or prior) , but he seems to have had various people telling him he should appeal, despite his own claim form stating he can walk around 500m!! and no real evidence of any substantial night time needs.

Anyway...the tribunal have recently removed the award altogether....

SoS only asks Tribunal to look at the question of HRM and HRC...client's appeal letter is the only other/new evidence before the Trib...and that simply states he cannot walk for and his wife needs to remind him of his meds at night (in fact pre 10pm)....that's it.

His claim form (whilst not the most complete ever), does support a number of care needs and it is clear he needs guidance outdoors etc...SoS obviously accepted this at the initial claim awarding LRM and MRC, as I say. Curiously, the SoS did not procure any other evidence in making the original award..essentially the tribunal only have
a) claim form
b) SoS submission accepting MRC/LRM and asking to look at HRC/HRM
c) a short 3 para letter of appeal.

Whole award lost....

then he came to me.... I've an idea where I'm going with this and obviously need the Statement of Reasons, which has been requested.

The question I am looking at is what happens to the notion of fair warning/ Art6 etc in a PAPER HEARING....as that was the route which the claimant requested (there is some issue on this alone as client dyslexic and states he did not understand the significance of paper/oral choice)

Bit of a mess for him really...if only he had taken advice and all that...but I wonder whether others have similar experience with Paper Hearings and this issue??

Thanks in anticipation.

Just off the top of my head - I think you should also consider a set aside - the Tribunal should have realised that this was not suitable for a paper hearing if they were thinking of removing his award all together and should have adjourned for him to get legal advice and an opportunity for him to request an oral hearing so that he could give evidence. I can't remember what the particular rules are on set asides now without looking them up but there is always Rule 2 the over riding objective which is to dispose of cases fairly etc and to interpret all other rules in this context.

Fri 08-Jan-10 09:33 AM by shawn

@PeteD

Not sure if you get the CPAG WR bulletin. If so, you may have seen the article on the issue of redusing awards in the December 2009 edition pp.5-6. If not, if references C15/08-09(DLA), which provides a good summary (although obviously not binding itself).

I found it here:

http://www.rightsnet.org.uk/pdfs/C15_08_09_DLA.doc

Jon

Thanks...I have read the bulletin stuff and the decision....I am still awaiting the statement