I recently advised a visually impaired client to request a supersession on the grounds of 'error of law' due to the 'Mallinson' Judgment. He was awarded the middle rate care of DLA but did not receive arrears back to the date of the Judgment (April 94'). (We have been advising clients about this for the past 10 years, and usually if the client has had an award since before 94' and they have not had a review/supersession since, arrears should be paid).

The DBU have refused to pay the arrears as they state that a review/supersession took place in November 94'. If this was the case I would accept that arrears cannot be paid as the date of the review/supersession is after the date of the Judgment in question. However, the DBU only have their computer records showing that a review took place but no paperwork (as it was destroyed due to being over 18 mths old). My client is sure that a review/supersession never took place, and that his award (lower care and mobility) has been running undisturbed since 1992.

Does anyone know of any caselaw I can use to support an appeal against this decision? I have read through the 'Ophelia' case, but this isn't useful as it only relates to documents being purposely destroyed in order to 'lose' evidence, rather than the circumstances in my case. It comes down to a case of my client's word against the DBU's. But, should an Appeal Tribunal accept that on a balance of probabilities, my client is telling the truth. Any ideas or caselaw would be appreciated?

I don't know of caselaw and it's different circs but similar reasons for non payment - client's word against DWP (no paperwork or record on computer) - DLA HRM award from 1994 ago which client realised wasn't being paid only after discussing her income with peers. After substantial fruitless exchanged correspondence they were adamant they had no record of any award. I eventually engaged PCA in the matter and DWP changed their minds. I assume it was due to balance of probs. Good luck with it.
Sue

Some random thoughts.

1. Your claimants' evidence of there being no review carries greater weight than a computer print out, unless the DBU can find the DM who can remember carrying out the review in 1994.
2. If a review was carried out in November 1994 and your claimant wasn't awarded mrc that would be grounds for arguing an error of law supersession from that date.
3. Some VI claimants can utilise the Fairey/Halliday decision of 1997 in relation to social activities. If so in your case, you could argue that DBU should have reviewed from this date.
4. There is a considerable amount of case law on the weight to be given to computer print outs of decision making, especially in relation to OPs. Might be worth having a look at them.
5. What do the DBU mean by a review? I had a similar case in which they had purported to carry out a review in 1996, of a DLA award made in 1992. My claimant had written to DLA in 1996 saying he had seperated from his wife. DBU argued that they had carried out a review as a result, but no grounnds for review, so no review.

Thank you Jimmy and Sue for your comments. I will use the balance of probabilities argument, and include some of the useful comments you have put forward.

David Feast.

hi david,

I'm not sure if this is very helpful to your case, but Commissioner Parker in CSIB/377/2003 considered the issue of whether it is necessary for the Secretary of State to produce a copy of a supersession decision.

She concluded a Decision Maker may change a decision even though they can produce no copy and the precise date is not now ascertainable, provided the probabilities establish the existence of such a decision:

"...there is no necessity for the Secretary of State to produce a copy of the decision under supersession. An adjudicating authority may change a decision, albeit that no copy of it can be produced and the precise date is not now ascertainable, provided that the probabilities establish the existence of such a decision. There is no advantage to the appellant if the original decision is produced, nor disadvantage if it is not, provided there is sufficient evidence of the terms of the decision and its approximate date. It is irrational if a subsequent supersession is impossible where the original decision under supersession is not produced. That will prejudice appellants who want DMs to take account of a change in their circumstances leading to increased entitlement". (para 24)

There is a summary of CSIB 377 2003 with a link to the full decision in the briefcase area of rightsnet.