Decision before tribunal is that the claimant is not entitled to DLA as she is not virtually unable to walk. This decision follows a supersession of an original award of 2005 taking effect from February 2007. As there has been a failure to disclose the relevant change of circumstances (CoCs) that the claimant could now walk there is a recoverable overpayment from the claimant of DLA amounting to £1500.

My submission to the tribunal was that there had not been a CoCs as the claimant's condition is now, was at the time of the supersession and has been since the date of the award in 2005 the same with NO changes.

The tribunal chair advised me that if the tribunal found that there was no entitlement to DLA and that they agrreed with my submission on CoCs, then it must stand the the claimant should not have been awarded in 2005. Should that be the case, the tribunal would then empower itself to revise the 2005 decision and this would mean that the recoverable overpayment would be considerably more that it stands to be now. At that suggestion I asked under what authority the tribunal would rely on to embark upon such a revision. The chair spoke of a 2005 decision being given in ignorance of - or as a mistake of a material fact. I said that even though I did not agree that either of those was appropriate to this case, I was aware of that possibility. I added that the only issues before the tribunal are whether, at the date of supersession, did the appellant satisfy the conditions of entitlement for DLA and if she didn't, had she failed to declare a CoCs; and nothing more. There was no question before them about entitlenment at 2005.

I have looked at the legislation about this but I cannot find the authority of which the chair spoke at the appeal. I have the right to revision regs but not the regs authrorising a tribunal to revise a decision not before it.

Any ideas please?

Thank you.

I have a suspicion that a Tribunal does have the power to make such a decision - this being subject only to the parties being on notice and/or adjourning the hearing for further info. In short, the Tribunal would be revising the supersession decision and amending the date of effect.

There was a recent HB/CTB decision (can't recall the reference at the moment) where a Cmmr made it plain that he couldn't simply ignore the facts / law of a case simply because a LA or Tribunal had not raised an issue. If the ref springs to mind, I'll post again.

Thank you, most helpful.

I'm looking at the annotations to Regulations 3(5) & (5A) of the Social Security and Child Support (Decisions and Appeals) Regs 1999. The annotation at page 558 of Volume III of the 2007 edition of Social Security Legislation seems very relevant to the issue of revision and is most, most useful. The bit about "official error" is exactly the point I am going to make at the reconvened tribunal - yes your suspicions were correct, the tribunal was adjourned for submissions. The SoS was fully aware of all of the facts, the claimant did not misreprepresent her needs or problems, the letter obtained from the GP did nothing to mislead the SoS and the decision was, therefore, given on a misinterpretation of the facts before the SoS and must be official error. Fingers crossed or what?

Thank you.

Have you seen CDLA/3508/2006? It is recent and so unlikely to be the one the Chair referred to. It is not on the Commissioners website but I can fax you a copy if you wish - let me have your number. You won't like it!

Tony

Thank you. My fax number is: 01204 337307.

Thank you.

I've sent it - let me know if it doesn't arrive
Tony

Hi Derbyshire,

if you could email a copy of CDLA/3508/2006 to us @ rightsnet@lasa.org.uk or if not fax a copy to us - 0207 247 9924 - we can upload it to the site.

Hi Paddy

R(IB) 2/04 States “on an appeal against a decision superseding or refusing to supersede the tribunal has jurisdiction to make a revising decision, and likewise on an appeal against a decision which has been revised, or not revised following a claimant’s application for revision, has jurisdiction to make a superseding decision. In the latter case, however, the tribunal can only take into account circumstances down to the date of the original decision”.

Is that what the chair is referring to?

Regards
Paul

On reflection and after further looking into this, there would appear to be revision rights for the tribunal to act on. However, I find the content of the Commissioners' decisions mentioned most disturbing. My case has significant similarities with the DLA decision in particular. I have advised my client that there is some realistic potential of having the current amount of recoverable overpayment being increased by 2 fold should she continue to pursue her appeal. She is fervent in her belief that she occupies the moral and legal high ground. I must admit that prior to reading the decision about DLA I was similarly minded. As she insists on going ahead then of course I must follow her instructions.

O dear, the longer I do this job the more I get a distinct feeling that someone, or maybe the system generally, is hell bent on making life difficult for claimants and their reprepresntatives. The other day I said that I had the right to speak at a tribunal and that I was merely trying to assit my cleint when I said what I did and was not putting words into her mouth. The medical member took exception to my comment and went for me. I objected to his aggesive manner and insisited that I had the right to speak and that I would continue to do so and to assist my client in her appeal. At that I was rounded on by the chaiprson who, with equal amount of aggression said in no unertain terms "you will do as the tribunal tells you to do". Does anyone agree or is it just the rantings of a silly old sod?

Sorry but it is early.

Thank you.

Thanks to Derbyshire, the commissioners decision he highlighted in his earlier posting is now available on rightsnet -

CDLA/3508/2006

Hello. This case was finally heard at tribunal today. The overpayment appeal was allowed on the strength of my written submission, and of course the facts of the case; thank goodness that common sense has prevailed. I'm not sure if anyone is interested but they can have copy of the submission if they want it. It only covers the obvious but there might be parts that can be used in similar cases. Thank you.

paddy, i might find your submissions helpful on something similar i have at the moment .....

clairehodgson@askews.com, 01642 605711 fax

thanks