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Tribunal jurisdiction in LEAP cases

Elliot Kent
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An interesting decision about the Tribunal’s function in LEAP cases,

YA v SSWP (PIP) [2022] UKUT 143 (AAC)

If you have appealed against an unfavourable LEAP review, you may be able to relate to my experiences trying to explain to an FtT how and to what extent they have a jurisdiction to hear the case. Whilst Judge Jacob’s declines the invitation to give ‘general observations’ on the operation of this jurisdiction, the case is nonetheless likely to be useful in illustrating the extent of the FtT’s jurisdiction.

YA had claimed PIP and been awarded it at the standard rate of daily living for the period 20/01/14 - 12/07/17. A decision had been made however to supersede and terminate his entitlement on 23/01/17. A LEAP review in 2019 concluded that both decisions should stand. YA appealed and the FtT allowed his appeal to the extent of awarding the standard rate of daily living and enhanced rate of mobility for the period 28/11/16 to 22/01/17 only.

In coming to that conclusion, the FtT had appreciated that the LEAP review had included a consideration of whether the original 2014 decision should be superseded for error of law by reference to the MH case. The operation of the anti-test case rule means that you can’t request revision of a decision on the grounds of a later UT decision, but you can request supersession and it will go into effect from the date of the UT decision. A refusal to supersede can be appealed and therefore, this aspect was within the Tribunal’s jurisdiction.

However, the FtT had gone wrong in limiting itself to considering only this part of the LEAP review. In fact, it had also involved consideration of the question of whether the 2017 decision, which had been made after MH and wasn’t caught by the anti-test case rule, ought to have been revised for official error. The DWP conceded at UT that this aspect of the case was also properly before the FtT. Whilst, it has been held for a long time that a refusal to revise on ‘any time’ grounds is not appealable, the effect of PH & SM v SSWP [2018] UKUT 404; (AAC) [2019] AACR 14 is to turn that on its head.

So, the Tribunal had a jurisdiction both to consider whether the - pre-MH - 2014 decision ought to be superseded for error of law with regard to from 28/11/16 to 22/01/17 but it also had a jurisdiction to consider whether the - post-MH - 2017 decision ought also to be revised for official error from 23/01/17 on.

Most decisions in LEAP cases will fall into one of these two categories, so you may be able to point to this case in order to illustrate how the jurisdiction arises.

Dan Manville
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Greater Manchester Law Centre

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This probably explains why I waited 6 months for permission to appeal in a similar case. I do wish the UT would tell us when they stay things.