Refusal to Re-Instate an Appeal and Recourse Moving Forward

Hi there

I’m looking for some advice about a late request to have a PIP appeal re-instated which was rejected by the First-Tier Tribunal. 

Our client is 69 years old.  He had been receiving high rate care and high rate mobility DLA.  His transfer to PIP yielded an award of enhanced rate daily living but only standard rate mobility via activity 2(c).  He challenged this via the usual appeals process but was wrongly advised to withdraw from his hearing - arranged for June of last year - and request a supersession.  He did so but achieved the same award in December.  The DWP stated that although he was awarded 12 points for mobility via 2(e) by the HCP, they couldn’t award the enhanced rate because his walking ability worsened after he reached 65.  I’ve checked this out and it appears to be correct, as per the Social Security (Personal Independence Payment) Regulations 2013. 

He sought our advice and we requested that the original appeal be reinstated because a) he was misadvised to withdraw and b) was not informed of how the age rules affect entitlement to enhanced rate mobility.  However, this was refused.  The Tribunal Judge states that request is late and therefore time barred and it’s not in the interests of justice to reinstate the appeal. 

We want to challenge this further.  Would this be via the usual process, i.e. by requesting the statement of reasons then appealing to the UT on a point of law (interests of natural justice)?

Also, if the client’s appeal is re-instated and he is awarded the enhanced rate of mobility, would the Tribunal’s decision trump the supersession decision? Or would it be considered a closed award and apply only up to the date of the supersession?

Many thanks. 

1. You need to look at the Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008.

2. Rule 17 provides for withdrawal - the date that withdrawal takes effect will depend on whether the request was made at a hearing (in which case it takes effect immediately) or in writing - in which case it takes effect from the date of the of the tribunal’s notice confirming withdrawal.

3. An application for reinstatement must be made within one month of the notice confirming withdrawal (or the tribunal hearing) - rule 17 (4).

4. Rule 5 (specifically rule 5 (3)(a) - case management powers - gives the tribunal power to extend or shorten time for complying with any rule. On my reading, there is no absolute time-limit attached to this power - so if an appeal has been validly made in the first instance and subsequently withdrawn, it is still possible to apply for reinstatement more than a year later. Obviously, the longer the delay, the more compelling the explanation for delay needs to be.

5. When applying any rule - in this case both rule 17 (4) and rule 5 (3)(a) - the tribunal must give effect to the overriding objective of dealing with cases fairly and justly set out in rule 2.

6. Whilst what I’ve said about rule 5 means that it should still be possible to get the appeal reinstated, the normal time-limits and procedure apply for an application to the Upper Tribunal. So you need to request a statement of reasons within one month of the decision refusing reinstatement, then apply to the FtT for permission to appeal and then make your application to the UT. In the cases I’ve dealt with, I’ve always got a set-aside at the stage of applying to the FtT for permission to appeal, but if you don’t get this, it’s on the UT.

7. In either case, you’re going to need good evidence of the wrong advice having been given - if this was in writing and from a recognised agency, all the better. But it need not be.

8. On the supersession point, strictly speaking any success ultimately achieved at a reinstated appeal would be time-limited to the date on which the subsequent refusal to supersede decision was made. However, two points;

a) the refusal to supersede was on age grounds, not on the basis that the claimant did not meet the disability conditions.

b) much more importantly, it was a refusal to supersede the decision that was appealed.. If the appeal is successful, the original decision - no entitlement to enhanced rate mobility - is replaced with a decision of entitlement to enhanced rate mobility, which would not be time-limited until the appellant reached 65. So you would have a refusal to supersede a decision that the appellant is entitled to enhanced rate mobility - i.e. something which makes no practical difference - he continues to have ERM.

Hi Past Caring

Thank you for our quick response.  I’m glad I’m on the right track.  I wasn’t sure if you could ask for a statement of reasons simply for a Decision Notice such as the one in question but I suppose it is a decision which “Finally disposes of all issues in the proceedings”,  as per regulation 34 of the Tribunal Procedures rules.  It’s also good to know that re-instating the original appeal could be worth doing in the long run. 

Thanks again for your assistance.

SClark01