Hope someone can help as not come across this situation before. We have a client that was initially on middle rate care and high rate mob. However, at renewal her award was reduced to middle rate care and low rate mob. We appealed the mob component only and made this very plain on all paperwork. At the appeal, the chair launched into care comp, did not give any warning or opportunity to adjourn, discuss etc and did not listen to our objections. Consequently, the tribunal decided to reduce the award to low rate care and low rate mob was left intact.

We then applied for permission to appeal to comms on basis that decision was erroneous in law. The chair agreed and set aside the decision directing that it be reherd before a differently constituted tribuanl.

Here's where it gets tricky. Our client did not want to go through another tribuanl as she found the first one fairly traumatic. We then called TAS to discuss what would happen if she withdrew her appeal (and did not go for re hearing) Common sense said that if the district chair had set aside the decision made at tribunal because it was made in error, then the award of low rate care and mob never took place, and so middle rate care and low rate mob should really still stand. The clerk at TAS assured me she had raised the issue with the District chair who agreed that it should. Subsequently, we withdrew the appeal.

We have now been trying to get DBC to reinstate the award to the pre tribunal rate. We felt sure that they would then issue a periodic enquiry pack to force a new decision.

However, their view is that the award will stop at low rate care since client did not go back for new hearing. I can't find anything in regs or caselaw to cover this eventuality, and wonder if anyone has any thoughts on this? Surely if a decision is set aside then there is no decision? (or is this where the problem lies?)

You are right and they are wrong. The client is back at the position prior to the hearing with her award intact. I have usually dealt with this by going upwards at DBC until someone who has been around a bit longer gets the point. Experience shows there is no point at all debating this with staff at the lower levels. There was a thread on this some time ago but I haven't got time I'm afraid to look for it.
I don't think there is anything written on this. Its just logic.

I *think* this was the earlier thread:

www.rightsnet.org.uk/dc/dcboard.php?az=show_topic&forum=106&topic_id=2234&mesg_id=2234&page=

Regards

I'm not surprised the tribunal's decision was set aside as it is a serious error to proceed to hear an appeal on the basis of both components of DLA without giving a "health warning" if the appellant only wants to put one component into question.

However you do need to warn clients that the tribunal has the power to do this, as DLA is treated as a single benefit and the Tribunal can look at the whole award and not just the bit the appellant isn't happy about. They must however warn that they have the right to do this and give the appellant the time to take advice on it, with an adjournment if needed.

As a side issue - could DBU use the tribunals decision (albiet it is now set aside) to review the award anyway because the decison would indicate that there may have been a change in circs?

"because the decison would indicate that there may have been a change in circs?"

If the "decision" has been set aside, it no longer has any effect.

In order to change an award, the DWP would require solid grounds relating to the circumstances of the clmt - not with reference to the administration procedures of the appeals process.

Of course, I would always warn client of this fact. However, there was no justification at all to look into the unappealed component (no adverse evidence etc). The chair also did not give a warning, nor time to adjourn so in effect we were 'ambushed'.

I agree that DBC will probably treat as change of circs and look to supercede but at least we can get middle rate reinstated until a proper decision has been made on this. However, I really dont think there is any real evidence to justify a reduction in the award in any event.

Many thanks for all your assistance. I will write to DBC now and see what happens.