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PIP tribunal decision set aside - tactics? Anything I’m missing?
Client awarded PIP enhanced rate daily living and standard rate mobility. Applies for supersession 27/11/2017. DWP decision 6/4/2018 reducing entitlement to standard rate both components. Client appeals. Hearing 24/11/2018 - client warned and hearing adjourned.
At this point referred to us. My assessment is that a) existing award is safe b) there is a very strong case for ERDL and SRM and c) an arguable case for enhanced rate both components. So I take it on.
Hearing 26/3/2019. Both components removed from that date.
I am not going to get into it on here in respect of the hearing itself, but this is a straightforward set aside isn’t it? Would you even bother with a statement of reasons request? I suppose my concern is that I do not want to give opportunity for the judge to say the date was a slip…..
Removed?
Why a set aside?
Yes it appears wrong. R(IB) 2/04 says that a tribunal’s decision to reduce an award takes effect from the date of the Secretary of State’s decision, not its own decision. But I wonder if they will set aside where the mistake is one too favourable to the claimant?
More generally, I imagine it must be quite hard to adequately give reasons for reducing daily living, as even if the tribunal has doubts about two of the points awarded there could be a large number of points not awarded that it would need to also look at, to ensure they didn’t apply instead.
Removed?
Why a set aside?
Well the decision is one (unless I am badly mistaken) the tribunal simply had no power to make. It could have;
- allowed appeal and increased award from date of application for supersession (or possibly earlier) - 27/11/2017
- set aside the DWP’s supersession decision and confirmed the award that was existent prior to the 6/4/2018 decision (i.e. ERDL/SRM)
- confirmed the 6/4/2018 decision (i.e. SRDL/SRM)
- removed either or both components from 6/4/2018 (or possibly earlier)
But it cannot remove entitlement from the 26/3/2019 hearing date (i.e. from nearly a year after the date of the decision under appeal).
I would like to know what the Tribunal thought it was doing and why before requesting set aside/PTA so would get the SOR first.
Removed?
Why a set aside?
Well the decision is one (unless I am badly mistaken) the tribunal simply had no power to make. It could have;
- allowed appeal and increased award from date of application for supersession (or possibly earlier) - 27/11/2017
- set aside the DWP’s supersession decision and confirmed the award that was existent prior to the 6/4/2018 decision (i.e. ERDL/SRM)
- confirmed the 6/4/2018 decision (i.e. SRDL/SRM)
- removed either or both components from 6/4/2018 (or possibly earlier)
But it cannot remove entitlement from the 26/3/2019 hearing date (i.e. from nearly a year after the date of the decision under appeal).
Cheers. My brain wasn’t quite in sync.
I’d be looking for an SOR/ROP to begin with but there’s no reason that can’t run in parallel with a set aside application, putting aside HMCTS inevitable reluctance to do so.
Well yes, I do not doubt that I will be able to identify material errors. And I don’t want to risk a ‘correction’......
I agree with Mike. In circumstances such as these I ask, in the same letter, for the decision of the tribunal to be set aside, and then request, that if they are unable to set aside, that a SoR and RoP are issued.