Appeal / set aside / supersession ?

I have two clients not related that have been dealt with differenty by the same Job Centre (Bolton).

Both clients failed the WCA, they appealed and were then placed in WRAG w/o going to Tribunal - the appeals were lapsed in other words. I did not help with any of this.

They have come to me to see to try to get in the support group.

I appealed the initial decisions again, still within 13m absolute time limit etc but two different outcomes

Client 1 - appeal allowed and placed in support group by dm after recieiving further evidence

Client 2 - appeal returned with information about setting aside the Tribunals decision - which was Feb 13

Not sure how to proceed - opinions please.

Thanks in advance

Forgive me if I’m missing something, but what tribunal decision? Didn’t you say that both decisions were revised in client’s favour prior to appeal?

The tribunal decision to lapse the appeal?

That’s an interesting one.  The appeal has lapsed in the sense that the basic rate ESA + WRAC awarded on revision is more advantageous than the decision under appeal (ie that you do not have LCW).  However, if you look at the commentary to Reg 30 Decision and Appeal Regs in Volume 3 Social Security Legislation you’ll see reference made to R(IS) 2/08 where it was suggested that in certain cases it may be a waste of time to lapse the appeal, eg especially where a DM knows that the revised decision still does not deal with the main issue raised by the appeal.  I’m not sure whether your case comes within that category. 

I cannot see why the tribunal judge didn’t just admit the appeal late (perhaps he/she takes the view that ignorance of the law, ie the effect of not being put in the support group, is not a good ground for lateness).  If that’s the case I’d perhaps refer the judge back to the commentary in Vol 3 above, this time that in respect of Reg 28 D&A, where reference is made to CDLA/3440/2003.  In that case it appears (I haven’t been able to find it) that the DLA decision letter incorrectly told the claimant that the DLA had been awarded for life rather than for a limited period.  It seems that the Commissioner held that the time limit in those circs did not start to run until the claimant was notified of the true nature of the decision.  There are clear parallels with ESA where the decision letters don’t make it clear, for example, that an award of CESA incl WRAG will be time-limited.  So, depending on the facts of your case, perhaps your appeal against the revised decision is actually an “in-time” appeal rather than a late one.