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DWP offers

Martin Williams
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Welfare rights advisor - CPAG, London

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I note that the Minister has today stated that the DWP do not make offers in appeal cases-

https://www.rightsnet.org.uk/welfare-rights/news/item/dwp-does-not-make-offers-to-claimants-awaiting-a-tribunal-says-minister

CPAG have today filed an appeal with the Upper Tribunal in which one of these offers which do not happen was made-

https://cpag.org.uk/welfare-rights/resources/test-case/dwp-offers-and-how-tribunals-should-deal-them

The case raises the question of what a First-tier Tribunal should do when dealing with such a case.

See also the article on this topic here:

https://cpag.org.uk/welfare-rights/resources/article/offer-you-cant-refuse

And of course the further evidence collated in the Guardian article here:

https://www.theguardian.com/society/2020/mar/02/dwp-accused-of-offering-disabled-people-take-it-or-leave-it-benefits

I have to say I find the Minister’s statement to Partliament perplexing given that ADM5161 advises Decision Makers to make offers:

A5160 The purpose of lapsing an appeal is to prevent unnecessary appeals going ahead. The power to revise is discretionary rather than mandatory, and should not be used in order to prevent an appeal being heard. DMs are therefore advised to consider whether a decision under appeal should be revised where

1.the revision does not address the issue which is the subject of the appeal and

2.it is likely that a further appeal will be made.

Note: Once the DM actually makes that revised decision then the appeal must lapse so it is important that the DM considers whether revision is the appropriate course of action to take.

A5161 So where a revision would not give the claimant all they are asking for in the appeal, the DM will contact the claimant before revising to ask them if they would still want to appeal if the revised decision were made. If the claimant says they would

1. still appeal, then the decision would not be revised and the appeal goes ahead with our response including details of the revised decision and that we cannot revise the decision as this would mean the appeal would have to lapse or

2. be happy with the revised decision, the DM would make that revised decision and lapse the appeal. The claimant would be informed of their appeal rights against the revised decision.

Note: If the claimant cannot be contacted then the appeal should not be lapsed.

 

Elliot Kent
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I think there is a gulf between the popular imagination of “offers” and the intention of the policy.

The implication from the language of “offers” has always been that the DWP are acting like the banker from Deal or No Deal - calling the claimant up out of the blue with a “take it or leave it” compromise which knowingly under-represents the expected value of their case, but avoids the stress and uncertainty of a hearing where matters would be entirely at large.

The policy (which the full statement pretty accurately conveys) envisages that the DWP is making concessions, but the claimant is then being given the option of having the decision revised (necessarily ending their appeal) or just carrying on with their appeal with the concessions standing and therefore avoiding the duplication of effort involved in having to start another set of proceedings from scratch.

The truth, I’m guessing, is somewhere in the middle.

I would have thought that as far as the FtT is concerned, the concessions made in the proposed revision ought to be treated in the same way as an award which has already been made -. i.e. not in issue by default but capable of being brought into issue if the claimant is put on notice - and that is certainly how I have been presenting it to the FtT so far.

I think there is an interesting aspect to your case in that the “offer” was more generous than the tribunal ultimately awarded - whereas the implication from the Guardian et al is that the goal of the “offer” is to under-value the case.

[ Edited: 17 Mar 2020 at 05:48 pm by Elliot Kent ]
Martin Williams
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Yes- I would accept that given in PIP cases a range of reasonable decisions might be made in many cases based on the evidence then one cannot say the DWP are deliberately offering less than what they think the statutory entitlement is.

However, the Minister suggested they should actually perform the revision and lapse the appeal- I agree (for the reasons set out in the article in WRB). But that is not the policy that is set out in the ADM (which in my view is unlawful).

Elliot Kent
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The statement says:

‘The Department does not make ‘offers’ to claimants. If at the appeal stage of the decision making process it is decided that a decision can be changed in the claimant’s favour, then in law the Secretary of State has the option to revise the decision and thereby lapse the appeal against that decision. As we always aim to make the right decision as early as possible, then changing the decision to award a higher rate of benefit is the right thing to do. However, we will only do this if the claimant agrees. The telephone call is made to explain the changed circumstance. But, critically, it also the case that, whilst the appeal against the original decision will stop, a new right of appeal is given against the revised decision. This is explained both by the new decision notice and by the letter sent by the Tribunals Service confirming the appeal has stopped. The process does not disadvantage claimants. And, of course, if the second appeal is successful the additional benefit will be backdated and full arrears paid.’

Which I think is more or less the same as what the ADM says.

I suppose the legal point is - is it correct for the ADM to describe the power to revise in these circumstances as discretionary rather than mandatory? - which is a pretty fair question to ask.

Martin Williams
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Welfare rights advisor - CPAG, London

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Thanks Elliot- I should read things a lot more carefully….

Ok then- our position would be that the DWP are required to revise a decision that they have decided is wrong even if the claimant states they will still appeal….

[wanders off to learn how to read more carefully]

[ Edited: 19 Mar 2020 at 06:28 pm by Martin Williams ]
Stuart
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Recent FOI response includes weekly numbers of lapsed PIP appeals (where DWP change the decision in claimant’s favour before it is heard) and successful appeals.

Shows how common lapsing is becoming, accounting for around a third of successful outcomes of appeals against initial decision made in April to June 19.

 

stevenmcavoy
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My experience tells me their are “offers” being made that, if refused, dont end up in writing before the tribunal as a concession.