I am seeking some info on challenging a decision by a 'panel member' not to allow a late appeal against a DLA overpayment decision.

Briefly, client was caught working while claiming IB and DLA HM and LC. An overpayment decision was issued in May 2004. I did not see her until end Sept 2004.

I submitted a late appeal, grounds being that work in itself was not a relevant change of circs for DLA and that as the award was based on medical evidence then there were reasonable prospects that the appeal would be successful. A second ground was that client was told that it was not possible to get DLA while working, so it was in the interests of justice that the appeal be allowed. The request for the late appeal was refused by a panel member on 25/11/04.

Now my thinking was that i would have to pass a low level test in arguing the first ground as it is not possible to look at appeal papers and put a detailed case as to why there are reasonable prospects that the case will be successful. I was also brief with the second ground.

Question now is how to get this into the appeal system. Vol 3 of 2004 Social Security Legislation states that it may be possible to appeal to Cmr (see para 2.420). CPAG states a JR is the route. Both do not give much detail on the options.

Does anyone have any knowledge on this area? I have not had a chance to consider this is any detail yet but would like the benefit of other advisors knowledge/experience to save me some time.

Thanks

My view is that CPAG are probably right. Vol 3 says that it is arguable that a refusal to admit an appeal by a panel member is a decision that can be appealed to the Commissioners.
I doubt that the argument would succeed but it is worth a try... (why does Reg 32 use the words a "panel member" rather than a tribunal when referring to the body that takes the decision on admitting the appeal but then only refer to decisions of appeal tribunals when referring to appealing to the Commissioner).

Having said that.... why don't you write and ask for a statement of reasons for the decision to refuse to admit the appeal.

As an alternative route:

Can't you simply ask for a supersession of the o/p decision(s) AND do a late revision request against the removal of DLA. As far as I know doing the supersession would if successful prevent recovery of any money not already recovered and if not successful attract fresh appeal rights.

We have had two or three cases where we've been able to persuade TAS to look again at a refusal of a late appeal. One of the issues is that the standard form TAS uses (at least in this region) to record these decisions doesn't make it clear that the "interests of justice/special circumstances" and "reasonable prospects" grounds for accepting late appeals are alternatives. The form implies that an appellant needs both "special circs" and "reasonable prospects". We have been able to persuade them to reconsider refusals on the basis that the decision as set out on the form is clearly not in the terms of the legislation.

If they won't reconsider I think JR is the route of challenge.

Martin - How sure are you that the supersession route to challenging the overpayment decision is a safe one? When I used to do this thing more often I recall some difficulties with this. I know one of the f/t chairs thought that this could not be done as it contradicted limits on appeal rights. Although I have also done this successfully in the past it does seem that it is a bit of a 'back door' route.

I agree that JR does seem to be the way of challenging the refusal of a late appeal. But with the commentary in the legislation book I thought I may be missing something

Keith - We have the same problem in the NE. The 'GAPS 69/97 District Chairman' form used to record the decision on the late appeal application seems to have been designed before the 2002 amendment to Reg 32. TAS have accepted that the form is clumsily worded and have said they are to change it, but think it does correctly state the law. I will ask for a statement of reasons and for them to look at this again 'informally'.

Thanks

I share reservations about the supersession option. However, I have seen cases where a District Chair allowed an appeal against a refusal to supersede.

I agree that an informal request may work.

A further thought - I think Public Law Project may have done a JR of a refusal to accept a late appeal. Not sure if it went ahead, but I'm sure they got as far as a letter before action. They might have some useful info.

i've probably got article 6 on the brain, at the moment, but could an appeal to the commissioner be made on HR grounds?

jj