Hi - client applied for DLA in Sept 2008 and we were unsuccessful at Appeal in May 2009. The Upper Tribunal has agreed error in law and set aside the decision. It is now waiting to be reheard.
Whilst waiting for the appeal the client had been diagnosed with another condition and we put in a second claim straight after the appeal was lost (ie. May 2009). This has now been listed for appeal in April.
The first claim had strong medical evidence (in my opinion) that was misapplied at the Tribunal (ie comments on personal care attributed to mobility). The second claim has not been supported by the (new) GP and the IB examination of November 2008 is not helpful (although do mention pain in legs state he can walk no problem - I will argue different tests for IB and DLA). The IB report was not used at the first appeal. The problem with his claim is assessing 'severe discomfort' as the client reports pain immediately on walking (and in rest) which increases as he progresses.
So, a good few questions:
1. Should I ask for the second appeal to be postponed with the presumption that a successful first appeal would mean the second appeal did not have to progress?
2. If they do hear the second claim appeal first will this mean that any award for the first claim (decided at future appeal) will change at the date of the second claim (if the award is different or nil).
3. When the first appeal goes ahead do you think they will add to the bundle (yikes - the IB report)?

Help greatly appreciated. Liz

The second claim will be treated as either a revision of a refusal on an initial claim or as a supersession depending on the outcome of the first appeal. As the second claim has been decided as a nil award by the DWP you have no option to withdraw this appeal because irrespective of the outcome of the first appeal, the existing decision on the second claim is of a nil award.

Was the IB report based on an examination prior to the date of the first decision? if it was'nt it can not be considered by the tribunal as it is produced after the decision under appeal.

Have you considered requesting that both appeals are heard consecutively by the same tribunal, or are heard in order, ie the first appeal is heard first as the second decision will either be a supersession request or a revision.

Check carefully whether a tribunal could idnetify a change of circumstances between claim 1 and claim 2. Bear in mind a new diagnosis does not necessarily mean more care/mob needs. Not seeking ot have them linked could mean a second bite of the cherry.

if the first appeal is successful the second application will mean res-judicata kicks in so the first perio dis limited. No need for a formal revision/supersession as there have been two separate outcomes and the prior is limited by the second.

Have you got any independent medical evidence or just relying on the dept's?

Hi - thanks for your replies, very helpful. Sorry for the delay - overwhelmed with stuff.
The TS have set the hearing for the first claim next week. Then the second claim hearing two weeks later.
I'm pleased to learn from your info that the IB report won't be included in the first hearing - it's not particularly helpful. There is helpful independent evidence for the first appeal but a change of GP means that there is not for the second.
If the appeal is successful does the DWP have extra responsibility to justify removing the award on the second claim decision?
Liz