Appeal Tribunal Decision

Can anyone help me please

My customer was awarded DLA Low care from 6/4/2009 to 5/7/2010

An appeal was lodged as no mobility was awarded

Appeal tribunal decision 26/6/10 changed the award to DLA Low Care 6/4/09 to 5/4/2010 in effect reducing the original award (not a problem was expecting this)and awarded High rate Mobility 6/4/2009 to 5/4/2012.

DWP further submitted to the tribunals that DLA fixed awards cannot be set for different periods and if a mistake had been made amend both components to end on the same day.

A different appeal judge forwarded the original tribunals decision notice back to the DWP with a handwritten alteration stating at the top AMENDED DECISION and then crossed out the end date of Mobility to 5/4/2010 in effect reducing the appeal tribunal decision of mobility qualification by 2 years.

I requested that if a change be made it should reflect Mobility from 6/4/10 to 5/4/12 to coincide with the decision this has been refused.

Sorry for the long winded rant but if this makes sense has anyone got any ideas as my client has in effect been denied 2 years mobility award.

Thanks

Gail

How old is s/he?  What is/are his/her medical condition(s)?  What evidence is there as to future mobility problems/prognosis?  I’m thinking if you can likely argue long term problems and get supportive evidence you should ask for indefinite mob’ award if you can find relevant revision/supersession ground.  Ignorance of material fact is a ground I have succesfully used before in these kinds of cases.

The appeal tribunal decision was correct with the evidence given 3 year mob award was fair its just this amendment that has altered the original tribunals decision without a set aside.

I am unsure as to the procedure as never encountered a correction (which it cant be) just altering the whole period of the award

Gail

What powers have the Tribunal used here? Correction of accidental error seems unlikely - it looks like a deliberate decision, albeit in error of law. No grounds for setting aside apparent. Their only power then is to review under Rule 40, FTT Rules. They can certainly do this because there was clearly an error of law: but why is it only the more generous decision which is in error? Their only powers on review are to correct ‘accidental’ errors, to amend reasons and to set aside (S.9 Tribunals etc Act 2007).

I think the only proper way of proceeding would have been to set the original decision aside and rehear the appeal. I would ask for this now since the original decision was in error of law and the ‘amended’ decision was outside the Tribual’s powers.

However there is a problem with the dates anyway since your client is out of time to renew the claim. Might need a supersession application, as nevip suggests, as well.

Richard Atkinson

The tribunal can re-decide the matter under s9(5) of The Act.  However, rule 40 clearly ‘warns’ the tribunal to give any party the opportunity to comment and that failure to do so will allow any party the right to ask for a review of the review decision.  If your client/her rep were not invited to make representations, ask for a review of the second decision arguing why the care should be extended rather than the mob’ be shortened.

A further development today

The DWP have advised that no one can extend a fixed term award and that even geting the decision set aside in a error of law would not allow them to extend the mobility as intended by the tribunal.

They state a renewal needs to be completed.

As the award date ended prior to the appeal hearing would the renewal if I complete one today be able to run from the day after the said awarded ended hence the 6/4/2010 as this period is now past.
Thanks

A tribunal does have the power to extend a fixed period award if the period of award is under appeal. Quite a lot of people who are awarded HRM for a year only will appeal it because they want a Motability car, which means a longer award. I think they can also do it if they are dealing with an appeal against a low rate and they increase the rate and extend the period because it is about to run out.

It is the easiest thing in the world to make a typing error with dates, and if the confusion over dates is to any extent due to a typo then it can be corrected by the judge. The decision notice may, for example, contradict an express note in the record of proceedings; or there may be a clear error like the start date of the award being in the year of the hearing rather than the year of the decision.

If I had £5 for every decision I’ve amended for a typo, I wouldn’t mind!