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Grounds to supersede PIP
This decision from Judge Wikeley (MR v SoS) is similar to a current case I have, so if he is right it would be useful to say the least. He criticizes the current review system in rather forthright terms.
The problem is that he seems to have missed that 26(1)(a) (supersession after receipt of medical evidence) applies to PIP as well as ESA, even though he referred to it in his own earlier decision cited in this case (SF). It’s possible that he is assuming 26(1)(a) doesn’t apply to superseding tribunal decisions, which also have their own provision, but that seems an unlikely construction to me and would surely have been mentioned in his reasons.
I’m a bit reluctant to rely on this case at the moment. Any thoughts?
I had the same thoughts reading MR - I wouldn’t like to cite it.
In [2017] UKUT 231 (AAC) Judge Wikeley acknowledges that reg 26 does apply to superseding tribunal decisions -
18. For the avoidance of doubt, it seems to me as a matter of principle that the two- stage test set out by Judge Mesher applies whether the original decision was made by the Secretary of State or a First-tier Tribunal. My decision in MR v Secretary of State for Work and Pensions (PIP) [2016] UKUT 481 (AAC) should not be read as suggesting in planned review cases, and where the previous award was by a tribunal, that a supersession is only possible for change of circumstances (regulation 23 of the D & A Regulations) or mistake of fact (regulation 31). Receipt of new medical evidence under regulation 26 remains a possibility – but the application of the principles set out in R(M) 1/96 and SF v Secretary of State for Work and Pensions (PIP) [2016] UKUT 481 (AAC) will need to be considered. See further the fuller analysis by Judge Wright in PM v Secretary of State for Work and Pensions (PIP) [2017] UKUT 37 at paragraphs 9-17.
and the circs in which that case arose are interesting as well, Daphne - mans GP told him he was getting worse, so he reported that fact because “he didn’t want to get into trouble”, and was called in for an early review and then lost his entire PIP award…...