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Forum Home  →  Discussion  →  Decision making and appeals  →  Thread

review due to official error v supersession

stevenmcavoy
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Welfare rights officer - Enable Scotland

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relates to ESA but i suppose this is a general review/supersession query.

client not given income related top up on conversion to ESA they were due.  subsequently discovered by me and ESA3 done.

DWP have treated it as a supersession and added the top up from the date of contact re the ESA3 (with a 1 month backdate) but said they cant review as outside the 13 month time limit.

they havent considered official error from what i can see which is what i want to argue.  only the other grounds for review that are time limited.

i think i can show official error, but does that mean i am still caught out by the fact a decision not to revise cant be appealed to a FTT or does the fact they havent considered the actual ground of error of law mean the tribunal has the power to treat the supersession as a review?

any thoughts appreciated.

John Birks
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Welfare Rights and Debt Advice - Stockport Council

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This should assist

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Mike Hughes
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Senior welfare rights officer - Salford City Council Welfare Rights Service

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A disgrace that it should still need to be referred to though.

stevenmcavoy
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Welfare rights officer - Enable Scotland

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cheers folks

case is slightly different from that one though as DWP sent a letter inviting them to “claim” income related on the same day the migration decision was made.

I’m pretty confident that’s an error in law now, my issue is the whole when a tribunal can review a decision when the SOS has refused to do so dilemma.

ive read that one you were involved in about 4 times now mike :)

Mike Hughes
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Senior welfare rights officer - Salford City Council Welfare Rights Service

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stevenmcavoy - 04 September 2017 12:43 PM

ive read that one you were involved in about 4 times now mike :)

I just need the world to know Steve :)

Bridie
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Welfare rights team, Angus Council

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Think I’ve replied to this elsewhere too.  I have a similar case to Steven’s and have lodged an appeal against a 2012 decision on the basis that it was not properly notified at the time. DWP said they would not look at it so I have sent it - and an e-mail from them saying they would not look at it - to HMCTS in hopes that it can be admitted.

Failing the appeal and if revision is also refused (I requested revision, but after the appeal request so as not to mess up the appeal if granted, am not chasing up the revision until the appeal situash is sorted) I’m going to seek an ex gratia payment.  Re the appeal - I’ve referenced John’s case.  alsofor some reason I think there was something helpful in 2011 but I can’t locate it - if anyone has any idea and this isn’t just a elderly person’s fantasy, please advise.

Steven - please let us know how you get on.

Jane

stevenmcavoy
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Welfare rights officer - Enable Scotland

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my appeal was allowed by the dwp have requested an sor.

Stainsby
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Welfare rights adviser - Plumstead Community Law Centre

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This one from Judge Rowland considers the issue from a different angle (The facts pertain to 2011)

Its a useful decision

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