current case I have at the moment is getting quite complicated.

previously client was entitled to middle rate care and low rate mobility from 11/02/2007.

we assisted the clients father at a recent tribunal where it was mentioned that the client and father both cared for each other (one with physical problems and one with mental health issues).

now it seems that the above fact has led the dwp to ask for an emp to be carried out on the client. this has been done and, as usual, the award has been reduced following this to low rate mobility only.

the issue though is that the award has not been superseded from the date of the emp report or shorly after but instead from 11/02/2007.

the dwp are arguing that the award from 11/02/2007 is erroneous in law.

basically I am going to argue that this decision looks like a revision (which there are no real grounds for) rather than a supersession where they could have at least argued that the clients condition had improved.

now I am aware that there are grounds for supersession based on ignorance of a material fact but am I correct in thinking even on this basis they still should have superseded from a later date?

The dwp submission is quite gargled and confused and doesnt seem to set out clearly what the actual grounds are.

I have read decision R(DLA) 1/06 and others re revisions/supersession but just looking for some clarification as to the proper grounds from some hopefully experienced people in this area.

surprised there have been no replies!

from further investigation, mostly decision R(IB) 2/04 it seems that tribunals can make supersession decisions when it should be a revision and vice versa.

from my reading though it seems that if the tribunal does look to make a supersession decision when the dwp have tried to review they can only take into account circumstances as at the original decision.

by my thinking then this would mean the tribunal would be unable to take into account the recent emp when deciding if it should supersede the decision.

i am getting myself into a great state of confusion with this so some opinions really would be appreciated!

I think that the DLA department might be revising the decison under reg 3(5) of the Decison and Appeals Regs which allows them to revise at any time where the original decison was made in ignorance of, or a mistake as to a material fact and the decison was more favourable to the claimant than it woud have been if they'd known about the fact. Because it's a disability decision, they also have to show that the claimant knew about the fact and knew it was relevant (sub para (c) of reg 3(5)).

If this is the case, they have to show what the material fact was. A medical report some time after the date of decision couldn't, in itself, be the material fact but they might say it pointed to a material fact that existed at the time of the decision. It has to be a primary fact though, not just a medical opinion.

The fact that someone cares for someone else is not, in itself, a material fact because you can be a carer and have disabilities at the same time. It's a bit like people working and claiming DLA. The DWP would have to show that the fact of the care meant that the person didn't have the care and mobility needs claimed. Whether that is arguable or not would depend on the care provided and needs claimed.

I would look at what the fact is said to be and try to argue either that it's not a material fact or that the claimant didn't know that it was relevant.

I may be barking totally up the wrong tree with the above. If so, apologies.

thats pretty much the conclusion i had reached but was just unsure and dont want to take an inappropriate line at the tribunal.

the departments submission is a mess and doesnt quote any law or regs at all so i am left to guess what basis they are making their decision on.

it seems to be they are saying its erronous in law which suggests to me they are arguing the dla criteria wasnt applied correctly.

from the decisions i have though it seems that although the tribunal can alter a review and make it a supersession and vice versa in this case if they change it to a supersession they cans till only take into account the circumstances as of the time of the decision.

it seems to me that a medical two years later would be a pretty ridiculous basis for saying the original decision was wrong on a material fact!

it really is time though that dwp decision makers were held to account for their submissions as their failure to produce a readable submission has caused me no end of extra work here.

It seems there are two different routes the DWP could go down but could they end up at the same practical effect?:
1. Revise the original 2007 decision on the basis that the decision is wrong in law (Reg3(5)(a) SS&CS(D&A)Regs). But this means they are stating the DM made an error in law which is an official error, not an error by your client, and therefore there is no chance to recover any resulting overpayment (under s71 SSAA) as all material facts were disclosed by the claimant it seems ( as I read it). so any attempt to recover the overpayment should be challenged/ appealed on the grounds of all facts were disclosed, its up to the DM to get the law right. (unless i have missed another route to recover DLA overpayments)
OR
2. Supersede the original 2007 decision from the date DM receives new evidence of facts pertaining at the time, then they can backdate the effect of the decision because it was more advantageous that it should have been (Reg3(5)(d) ). DWP have to show there are new facts to backdate the effect of the supersession based on this new evidence. If there are new facts, and the claimant did not disclose all relevant facts at the time of the original decision they may be stuck with the overpayment resulting. But the DM's difficulty would be proving the facts were pertaining at the time of the original decision. Without a medical report saying they did they have difficulty proving the fact. But with one, they would have to show why they didn't use it to make their decision at the time - and its back to the error of law argument in 1.

Of course this doesn't get round the ultimate problem that the client has to put in a new claim for their own supersession if the award is stopped! Sorry!