Client on Incap and subject to own occupation test. She was sent for PCA after 17 weeks, decision made on 161st day of Incapacity that she is no longer entitled. Client appealed (no rep at this stage)and DM looked at the decision again he noticed dates and changed date of entitlement to the 197th day and sent the submission to TAS. Client was never notified of this new decision. First tribunal decision has been set aside.

The chair suggested that the appeal has lapsed as the new decision is the decision that should be appealed however the client was never notified of this decision.

The argument I was planning to run using S171 AB&C(SSCBA 1992)is that the initial decision is ultra vires as the wrong test was applied (the PCA) and used to make the decision. With the result that the DWP would have to start again, I am therefore hoping that the second decision is not relevant.

Can anyone help me with this argument / caselaw

You are right to say that the decision (as initially made) was wrong in law- the own occupation test applied.

However, what seems to have happened is that the Decision Maker has revised that initial decision to one more favourable to the client.

If this happens sec 9(6) of the SSA 1998 is clear that the decision shall lapse(Reg 30 of D&A Regs stops this from happening where the new decision is not more advantageous to the appellant).

The only way I can see that you can get around this is to argue that no revision has in fact been made of the decision appealed. It may be possible to argue that if a decision is not notifed then it has not been made.

If your client has never been officially notified of the new decision then an appeal should now be made against that: it will not be a late appeal as time not started to run.

But.... I think you are going to end up arguing the substantive issue of whether he passed the PCA at day 197 or not- eventually.

I would have thought that as the PCA does not apply until after 196 days then the PCA as applied after 17 weeks has no legal force so the decision has no effect so cannot be revised by a Decision Maker in any direction.

Surely, the PCA must be re-applied after 196 days as the claimant is subject to the own occupation test until then.

If you look at the annotations to s171 of the SSCB Act (p265 Bonner 2003) it states that sub. (4) - application of the PCA - "...enables a PCA to be carried out before the expiry of the own occupation test. but ONLY FOR THE PURPOSES OF FEEDING INTO THE WORK RELATED INTERVIEW PROCESS OF THE ONE SYSTEM CURRENTLY BEING PILOTED". (my emphasis).

The decisions appear to me to be as follows:

1. Decision that claimant fails PCA from date prior to 196 days out of work.

2. That decision is then revised to the effect that the claimant fails PCA from day 197 (the first day on which it applies).

So the new decision, uses evidence obtained before the 196 days are up, to say what the claimant will be like on the 197th day. There is a difference between the medical examination at which an Approved Doctor scores the appellant and the carrying out of the PCA (which is done by the Decision Maker). Para 4 of Sec 171C seems to me clear that a decision as to what someone scores under the PCA carried out prior to the 196 days elapsing can still be used for determining capacity on the 197th day: does anyone know what the reg is setting out the "Prescribed circumstances" to which it refers?

So in short: the PCA has been reapplied after the 196 days- that is what the revision of the decision has achieved.