Looking for some help on this issue as I can't get my head round it all!

Income Support superseded claimant's entitlement in April 2009 on the basis of a change of circs. We appealed and in Nov 09, they revised that decision and held the claimant was entitled to IS. As a result, the appeal lapsed. Then in January this year, they revised the revision decision on the basis of error of law and gave a new decision that she was not entitled for the same reasons given in the supersession decision of April 2009.

The IS office has stated her appeal will continue against the original April 2009 decision. I'm not entirely certain of this. The appeal was lapsed by the revision decision in Nov 09. But now that that revision decision which caused the appeal to lapse has been revised, does that resurrect the appeal or should we appealing against the new revision decision from January 2010. Practically, it may be better to just let the appeal continue against the original decision, but this is a case involving right to reside and it’s likely to go to the Commissioner. I don’t want it to be before the Commissioner and he decides that we should have appealed the new decision and there was no valid appeal as it had lapsed back in Nov 09. I've submitted an appeal against the Jan 2010 decision just to be safe but the Deaprtment are proceeding with the case as if the appeal is against the April 2009 decision.

Any thoughts?

Sounds like you've got all the basis covered.

I would have submitted a new appeal too just to be on the safe side.

The new decision is invalid. It is not possible to revise a revised decision, unless during the course of appeal.

It is only possible to revise a decision made under SSA section 8 (original decisions) or section 10 (supersessions). There is no power to revise a decision made under section 9 (revised decisions). Section 12 would allow a revised decision to be revised but only during the course of appeal and it would not cover the circumstances in your case - unless of course you appeal against the new decision on the grounds that it is an invalid revision and it could then be revised in your client's favour.

Hope this helps.

Cheers for the input guys. I'm not sure about Andy's point about there being no power to revise a revised decision. There's a cmmr decision on that and the cmmr found that the power did exist CIS/3535/2003, which I finally managed to track down a copy of. Also Reg 30(3)-(5) of the D&A Regs (dealing with lapsed appeals) seems to suggest that a decision that has been revised can be further revised.

If the revised decision can be further revised, I can't see in the legislation or in case law what happens to the lapsed appeal when the decision that caused it to lapse is then revised. I suppsoe in either event, the issue on appeal is whether the supersession decision in April 2009 was correct or not.

I think what should have happened is that the second revision should be aimed at the original superseding decision and and not the first revision decision which lapsed the appeal - if you see what I mean.

The lapsed appeal I think stays lapsed. However you have new appeal rights against the original superseding decision because the time limit for appealing is extended by regulation 31(2) of the D&A Regs.

David