Got an appeal for a lady who currently receives DLA low rate care only. She has clear mobility problems, and we are trying to get HRM, but she is over 65. First claimed 2001, and there is written evidence from G.P. of mobility needs at this time. We are asking tribunal to revise the 2001 decision on the grounds of official error. DWP say that TS have no jurisdiction over this as no appeal was made at the time ' within the absolute time limit'.Is this right? We are o.k. for subsequent decision but would be nice to go back as far as possible for this very deserving case (who also has mental health issues).
Can't get copy of forms etc. as DWP state they have been destroyed!

If the 2001 decision was to award LRC and the more recent application was a request to increase that award then you're fine. R(IB) 2/04 confirms that any application for a superseding decision can be treated as a revision request and vice versa. There is no time limit with an official error revision request. The appeal against the recent decision can be taken as an appeal against their refusal to revise.

However if the DWP have made a decision on an official error revision request then there is no right of appeal against their refusal to revise - although I don't think that is the case here.

Burden of proof is on you though!

David

Thanks for that David.

Does the same apply for supercession on grounds of mistake to material fact?
(that's another large drink I owe you).


Rose

I'm not sure if the "anytime revision" provision is the same for HB/CTB as it is for other DWP benefits.

If it is, a refusal to undertake an "anytime revision" (outside the absolute 13 mth max) does not count as an appealable decision. The only course of action would be by way of JR. I'm not yet upto speed with the new Tribunal set up, but I wonder if this is now one of those cases where the JR issue can be lawfully considered by the Upper Tribunal? Just a thought.

I don't think I was entirely clear in my earlier post - nothing new there.

If the DWP (or Housing Benefit authority) refuses to revise a decision on the grounds of official error and the request is more than the 13 months after the original decision then there is no right of appeal.

But if a request is made to alter, for example by a supersession request, an awarding decision and the adjudicating authority do not consider the issue of revision then it is open for the tribunal to look at it.

From CDLA/1821/2003:

‘There can be no appeal against a decision of the Secretary of State not to revise an earlier decision on the grounds of official error under regulation 3(5)(a). … However, it would appear from the reasoning of those decisions that a tribunal can, and in appropriate cases should, consider whether there has been an official error when the Secretary of State has not decided the point. Further, there is no time limit on such consideration.'

See also CDLA/1707/2005 (heard with CDLA/1708/2005)

David