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Over 65 Res Judicata PIP appealed after refusal New Claim for Attendance Allowance.
Don’t we need to be careful with clients over 65 who have DLA/PIP refused on review with appeal pending. I have come across a couple of cases recently in similar circumstances and have claimed AA erroneously, in my opinion. Am I right in thinking an un/successful claim for AA, ends the PIP claim because of the dogma of Resjudicata.
My reasons for this are that the eventual tribunal is restricted to considering entitlement to PIP until the date of decision of the AA claims whether successful or not, by the principle of Res Judicata. The following explanation is from Wikipedia.
Res judicata (RJ) or res iudicata, also known as claim preclusion, is the Latin term for “a matter [already] judged”, and refers to either of two concepts: in both civil law and common law legal systems, a case in which there has been a final judgment and is no longer subject to appeal; and the legal doctrine meant to bar (or preclude) continued litigation of a case on same issues between the same parties. In this latter usage, the term is synonymous with “issue preclusion”.
In the case of res judicata, the matter cannot be raised again, either in the same court or in a different court. A court will use res judicata to deny reconsideration of a matter.
The matter already judged is the claim for AA and this automatically excludes any reconsideration of award of PIP. Obviously, a Tribunal could not award PIP for any period after the effective date of athe award of AA. Unless regulations specifically allow, it is my opinion the dogma of RJ prevents a Tribunal from awarding PIP.
This raises serious implications for advisors whose clients are over 65, who have lost DLA or on migration re not awarded PIP. If we do not advise our clients who have appealed to consider claiming AA. We are failing in our duty of care. If we do advise a claim for AA without the caveat of RJ. We are failing in our duty of care.
In today’s litigious society, which we are part of concerns me. It’s a classic case of, “damned if we do and damned if we don’t!”
This is not, in any sense, a situation which raises res judicata which refers to a specific set of legal doctrines which have been held to have “virtually no application […] in the determination of social security benefit and housing benefit questions” (CH/704/2005).
What you are reaching for, I think, is this:
(1) 01/01/18 - claim for PIP is made and in due course there is a decision refusing the claim. The claimant appeals to the Tribunal.
(2) 01/12/18 - a well-meaning adviser suggests popping in a claim for AA and in due course, this is awarded from that date at the higher rate.
(3) 01/06/19 - a Tribunal comes along and decides that in fact the claimant was entitled to PIP indefinitely with ER/ER. But, because there is a pre-existing AA award from 01/12/18, the DWP says that a “fixed period” has been created - so the PIP is only paid up to 30/11/18 when AA takes over and our well-meaning adviser has accidently screwed this claimant out of the mobility component for the rest of their life. Oh dear.
This happens because section 17(1) of the Social Security Act 1998 provides that a decision, once made, is final subject to revision, supersession and appeal. The decision to award AA has not been revised, superseded or appealed, so there is nothing that the Tribunal or anyone else can do about it. We then assume that PIP and AA awards cannot co-exist (admittedly, I don’t have a citation for that off the top of my head). So the Tribunal’s decision collides with the immovable object of the AA decision once it takes effect and the Tribunal’s decision becomes irrelevant.
That gives a clue to one possible way out of this situation. Only a decision is final. If the AA claim is not actually decided before the PIP appeal is resolved, then the situation won’t arise. I have heard of cases where AA have basically just shelved the claim during the appeal. That gives you the best of both worlds because if the PIP appeal is won, everyone just forgets about the AA claim - but if the appeal is lost, the date of claim is preserved when the AA claim is decided. It does create delay though.
But if we can’t rely on the DWP to do that, then yes it is a tricky situation. There are pros and cons to making an AA claim in these circumstances and there will need to be consideration of the client’s priorities, the strengths of their respective cases and so on. It is certainly a situation where you would want to be sure that the claimant is advised by experienced staff and that the advice is well-evidenced because it does raise a risk of something going wrong and an entitlement being lost forever. Ultimately though, the decision is the client’s and our job is just to inform them fully about the options and possibilities.
What Elliott said. and the person who advised AA may have to look to their PII policy to compensate the client if, in fact, the client has suffered a financial loss
Res Judicata is for the situation (not arising in social security) where a person tries to have two bites of the litigation cherry for the same thing
for instance, joe bloggs sues ann smith for damages for personal injury. joe bloggs loses. some years later joe blogg’s widow tries to sue ann smith again for the same injury (perhaps in the meantime joe has died of the injuries). res judicata applies to prevent joe’s widow doing any such thing. (save where, perhaps, joe’s widow can prove that ann was a stone liar, in which case it might, with extreme difficulty and much expense, be possible to set aside the original decision).
Thanks for this and advice that RJ does not apply to SS Law. My only question is, does this apply to the appelate courts?
Thanks for this and advice that RJ does not apply to SS Law. My only question is, does this apply to the appelate courts?
I think it’s worth noting that res judicata isn’t universally accepted to be irrelevant in the first tier tribunal, and there is no rule of law to say it should be. E.g., just from my experience, if you have a claimant who was previously denied means-tested benefit by the tribunal due to excess notional capital, and later applies again for the same benefit, be prepared to answer the question “Why shouldn’t res judicata apply here?”
I’m not saying the FTT would be correct to raise it, but it’s well to be prepared with the arguments.
Thanks for this and advice that RJ does not apply to SS Law. My only question is, does this apply to the appelate courts?
I think we just need to bin the whole term res judicata. It has a very specific legal meaning (or more, accurately, as many as six legal meanings according to Lord Sumption in Virgin v Zodiak [2013] UKSC 46) but none of them have any real relevance to welfare rights work. I don’t think it quite means what Wikipedia is telling you it means but I’m not really very keen on regurgitating a half-remembered lecture from uni to explain why.
I am not sure quite what you mean in reference to appellate courts. The rule is that Tribunals for the most part have to follow prior legal decisions of senior Tribunals and Courts. But that is the doctrine of precedent which is something else entirely.
if you have a claimant who was previously denied means-tested benefit by the tribunal due to excess notional capital, and later applies again for the same benefit, be prepared to answer the question “Why shouldn’t res judicata apply here?”
CIS/2540/2004 addresses that exact situation and holds that it categorically does not apply - so that’s the answer if a Tribunal asks.