Revising/superseding IS following re-award of DLA on appeal

Hi all,

It’s been a while since I’ve dealt with one of these and we were just discussing the technicalities of it here in the office.

Client had been on IS and getting SDP due to getting MRC of DLA. DLA was stopped after unsuccessful renewal decision and IS award was superseded to remove SDP from the same date. DLA was re-awarded following an appeal at the MRC again.

In those circumstances, in order to have the SDP reinstated from the date that it originally stopped, is it a revision of the IS supersession decision (and if so what ground of revision). Or is it a new supersession decision on the grounds of 6(2)(e) of the Decision and Appeals Regs?

Cheers

Lee

i think it’s a supersession under reg 6(2)(e) as you say because the DLA award is made for period after the IS award.  if it was made for a period including date of IS award, would be revision under reg 3(7).

anyone else have a view?

It shouldn’t matter either way as a supersession under 6(2)(e) can be effective from the date of the re-instatement of DLA under 7(7).

Thanks for the replies guys. I appreciate the result would be the same either way but we were genuinely stuck as to what way it should be done! Problem was they only reinstated his SDP from the date of the tribunal decision and not from the date it originally stopped. When we started to draft a letter asking for this to be changed we couldn’t figure out if it was revision or supersession. It feels like it should be a revision as the decision superseding IS is the one that should be changed but it’s identifying the ground that’s the problem. As Ros says, 3(7) doesn’t seem appropriate in this case. Maybe error of law or mistake or maybe it is just supersession under 6(2)(e) with the date set by 7(7). In either event, he should be getting it reinstated from the date it stopped!

It should be straight forward.  IS is the first relevant benefit mentioned in the first limb of reg 6(2)(e).  Where entitlement to the second benefit (the DLA) arises which is effective after the IS has been awarded (as first award on the original claim and still running) (limb 2), the decision superseding the decision removing the SDP takes effect from the date that entitlement to the DLA itself takes effect under reg 7(7) and not from the date that that entitlement decision was made (i.e. the date of the tribunal’s decision).  No other ground needs to be made out.

Lee42 - 27 January 2014 03:36 PM

.. IS award was superseded to remove SDP from the same date.

I think it’s a revision of the original IS supersession (ie the one removing the SDP) either under Reg 3(7) - ie, the DLA has been awarded from a date that includes the date of that supersession, or under 3(5)(a) - the removal of the SDP was an official error and the fact that that was only shown to be the case retrospectively, ie after the DLA tribunal had retrospectively awarded MRC, is irrelevant.  That presents a problem in that if the DM refuses to revise the time for appealing would not be extended under either of those provisions and you would then have to late appeal the original IS supersession (ie the one removing the SDP).  That should be ok provided the latter decision is, of course, less than 13 months’ old. 

If it’s older than 13 months, I’d appeal the latest supersession (ie the one re-instating SDP but only from the date of the DLA tribunal) but you may have your work cut out persuading the tribunal to change the legal basis of that decision to one made under Reg 6(2)(e).  That’s because Reg 6(2) expressly applies its constituent grounds including ground (e) only to the “decision to be superseded” and the decision to be superseded here is itself a supersession (ie the one that removed the SDP).  Consequently, 6(2)(e) is arguably not satisfied because the MRC was not re-instated “subsequent to the first day of the period to which that entitlement relates” as required by 6(2)(e)(ii) but from, as your original post states, the same date. 

The effective date of the original IS supersession could be crucial here.  I doubt it could have been any earlier than the date MRC stopped.  Chances are the IS was originally superseded with effect from a few days (the start of the benefit week perhaps) after the date of the DLA renewal decision removing MRC.  Consequently, it would be difficult for the re-instated MRC to be subsequent to the IS award.

I say “arguably” above because Reg 6(2)(e)(ii) is unclear - ie, are the words “to which that entitlement relates” referring to the original award of IS made under section 8 SSA or to the IS awarded by the supersession that removes the SDP.  If I had to choose I’d say the latter, whereas Paul interprets it as the former (he could well be right).

I’d ask the tribunal hearing the appeal against the latest IS supersession to replace the latter decision with a revision of the original IS supersession.  There is caselaw holding that that is possible provided the DM has not expressly refused to revise the original supersession.  If he has expressly refused to revise it then R(IS)15/04 prohibits the new tribunal from revising it themselves as that would then be permitting through the back door what is not permitted through the front, ie effectively appealing the original supersession more than 13 months later.  As stated above, you’d only be asking the new tribunal to substitute a revision for a supersession in this way if you were out of time for late appealing the original IS supersession. 

If you can supersede under Reg 6(2)(e) you also have the problem that a decision that can be revised cannot be superseded.  The exception is where there are “further circumstances” referred to in Reg 6(3)(b) but it’s unclear what they could be.  The DLA tribunal’s decision to award MRC is arguably one of the circumstances envisaged by 6(3)(a) not (b). 

I think it comes down to how you interpret 6(2)(e)(ii), especially if you’re out to time for appealing the original IS decision.  The benefit of being able to late appeal is, as we know, that a tribunal can simply “replace” the original IS supersession without having to show grounds for superseding or revising it - R(IB)2/04.  Under section 12(8)(b) SSA 98, the tribunal could take account of all facts obtaining at the time of the original IS supersession which would include the award, albeit retrospectively, of MRC.  The DWP might dispute that and argue that the IS decision was correct on facts known to the DM at the time, but that would ignore the retrospective effect of decisions.