This all happened before client saw me -

Had indefinite award of high rate mobility. Applied for supersession on grounds of care needs. Sent care only DLA form. No EMP report. Claim for care refused but mobility not questioned. Appealed and went on her own. Tribunal had minimal discussion with her where she mentioned that her care needs had got worse since she fell off a loft ladder. Chair then said you sound able bodied enough to be climbing a ladder - we want to look at your mobility. Told client that would send EMP and no use withdrawing appeal after this as would still be questioned. Appeal adjourned.
Had EMP visit which did not support mobility award or care needs. Appeal now relisted.

My questions are;

1. Given that EMP report would have been sent to DLA as further evidence, is there still a risk if she withdraws appeal? Obviously if no further evidence had been asked for, it could have stayed in the appeal papers and been binned after appeal withdrawn.
2. Is there any mileage in the old arguments of tainted evidence - there was no evidence in the appeal bundle to question the mobility award but there is now! Chair appears to have been wrong to raise any questions of mobility when there was no evidence in papers to begin with.

Thanks

1.Your'e right about the risk..DWP can use the evidence to revise/supercede as a new decision even if she now withdraws teh appeal. The new decision would carry normal rights of appeal. I think all she can do in respect of this is withdraw the appeal and hope the DWP don't notice the new evidence (subject of course to the sage advice you will no doubt give her on duty to report change in circs)
2. I dont see much mileage in that at all. The tribunal did have evidence (her oral evidence) that the mobility should also be looked at. What they should have done was to give client an explantion of their powers. Client could have withdrawn at that stage and that would have been likely to be the end of it, the EMP visit should not have gone ahead as the tribunals jurisdiction ends when the appeal is withdrawn. You could therefore have a valid complaint against the tribunal for telling client that there was "no use" in withdrawing.

The other thing to consider in terms of this is that the DWP will have to show (either in this appeal or if the current one withdrawn and new decision removing mobility made against which client appeals) GROUNDS for superseding or revising the decision originally awarding High rate mobility.

In terms of grounds, points to note (briefly) are:

1. If based on "change of circumstances" then this will have to be an improvement in client mobility since original award (Wood v Sec of State for W&P).
2. New medical evidence is not a change of circumstances although it may be evidence of said change.
3. If based on "mistake or ignorance" of fact then they have to identify some primary fact of which they were ignorant on initial award and show how they would not have made that award had they not been mistaken- thus a finding that they were ignorant of the fact that "client is not virtually unable to walk" is not a primary fact which can found supersession (but simply an inference drawn from primary fact etc). Go through the EMP report with a tooth comb to see what that is included in it can constitute primary fact of which they previously ignorant.

Martin.

Thanks to you both for your responses - client has decided to withdraw so we will see what happens

In my experience they have never actuallt linked up the evidence from an appeal and brought a supersession application following such evidence having arrived once the case has already been passed to the Tribuunal Service. I have withdrawn several such appeals, and had no such problem.