supersesssion whilst waiting for upper tribunal

Hi,

Any comments would be gratefully appreciated.

It’s a DLA claim for a child.

Original claim refused, appealed, got middle care at appeal.

SoS has just got leave to appeal to upper tribunal.

I’ve not yet seen any of the appeal papers – so it is difficult to say. But the impression I get is that it is not a strong case and they may lose the DLA award.

The family want to make a new claim now. The care needs are greater, plus she has turned 5 and could get low mob, generally seems a stronger case. Most of all they want the income.

But they cannot make a new claim, because they have a claim, it’s just not in payment.

If they ask for a supersession now, and then lose the previous DLA award at the upper tribunal, (or when it is sent back down). Could the supersession be treated as a new claim?

Am I right that you can ask for a supersession of an award that is being appealed against? DLA office has told them they can do nothing at all and will not send any forms out.

Many thanks!

Jane

Sorry - Friday and my poor brain is pretty worn out, so no idea about your question!
Thing that jumps out at me though is that the original claim was for care component only, so I would insist on a pack to claim low mobility. There is no claim under appeal for this, as she has only just turned 5. I would write requesting an application pack, get the parent to countersign your letter, and ask for the date of it’s receipt to be taken as date of claim.
Good luck!

First, she has a lawful, subsisting award of DLA.  That can only be altered under a relevant legislative provision.  The fact that it is not in payment has no bearing on that. 

Second, she has every right to ask for that award to be reviewed by way of supersession if statute allows and, on the facts of her case, it does (i.e. a relevant change of circumstances).  The fact that the DWP has been given leave to appeal (by no means certain of succeeding: it might not be strong case on the facts but that is irrelevant, the UTT Judge must find an error of law and cannot change the decision merely because he would have made a different decision on the same evidence) does not prevent an application for supersession as long as a ground can be made out.  The DWP has no right to block it.  That power, by the way, also applies to the DWP to make an application, again providing a ground can be made out.

There is a whole world of difference between a citizen’s right to avail himself of rights afforded to him under the law (i.e. the right to make claims and applications) and any benefit or advantage gained from the operation of those rights, which can often depend on rights afforded to other parties involved.  Any powers that exist for the DWP to hold up any such subsequent applications must be clearly pointed to. 

Third, the supersession procedure would, in the ordinary course of events be completed long before a newly constituted tribunal re-heard the case but not certain to be completed if the UTT Judge remade the decision himself.  In any event if the award was terminated before the supersession process was complete then, yes, it should be treated as a new claim.

Finally, the DWP have a duty to complete any supersession process without undue delay and cannot deliberately drag it out or postpone making a decision until after the appeal to the UTT has been concluded.  That would be maladministration.  If the DWP will not send out new forms get her to make the application in a letter outlining all the relevant changed care needs and mobility problems and send it by recorded delivery.

Thanks for your replies - really helpful.

Jane