PIP -Tribunal aware of new claim but award not for a closed period

Client had been awarded Standard rate of DL (no mobility) from 12.7.17 to 7.12.19.  This decision was superseded on 6.6.19 taking away his PIP award. No change at MR, so client appeals.  Whilst waiting for the appeal, DWP advises Client to make a new claim.
New claim made in April 2020 and in July gets awarded Enhanced DL- From April 2020 to May 2023. No Mobility.
Appeal (re decision of 6.6.19) is heard in Sept 2020.  Tribunal is aware of new claim and award, notwithstanding, the decision is not for a closed period. Tribunal awards Client the Enhanced DL & Standard Mobility from 7.12.18 to Dec 2023. 
1) Am I correct in believing that the start date is an accidental error and should be from 6.6.19 (? End of last award) which can be amended according to regulation 36 of the Tribunal Procedure (First-Tier Tribunal) (Social Entitlement Chamber) Rules 2008: https://www.legislation.gov.uk/uksi/2008/2685/article/36/made
….or will the additional award from the tribunal decision be paid from 7.12 18 to 6.6.19 and then paid in full from 6.6.19 to the date of the new claim?
2) Does the Tribunal have jurisdiction to make an award past the date of the new claim? I have always thought it’d be for a closed period.  If there’s a regulation accepting this, then the fresh claim (April 2020) will be superseded by the decision of the tribunal (EDL, SM) on the previous claim?  (I think I’m being hopeful…!)

Thanks for any input!

(1) The Tribunal was hearing an appeal against a decision dated 6/6/19 to supersede and terminate entitlement from that date. It was open to the Tribunal to make any decision which the DM could have made at that time.

The DM could have superseded the award and increased the rate either (1) on the ground set out in reg 26 of the D&A regs which would be effective from the date of the decision or (2) if it were satisfied that there was a change of circumstances, the supersession could potentially have operated from an earlier date based either on when the change occurred or when it was reported - reg 23 & Sch 1 D&A.

One reading of the decision notice is that the Tribunal took the view that the second ground for supersession was applicable and therefore made a superseding decision effective from the earlier date - 07.12.18 - which is possibly either the date on which there was a change in your client’s health or the date on which he completed a PIP2 or similar which would have alerted them to the change.

There is not enough information to suggest an obvious typo which is amenable to correction.

(2) The Tribunal can write whatever it likes on the decision notice, but it has no jurisdiction over the decision made on the later claim. This is because of the principle of finality - s17 SSA. The decision on the new claim will stand.

It is possible for revision of that decision to be requested on the basis that if the decision maker had known about the Tribunal’s decision, a different decision would have been made - see reg 11(2) D&A.

Thank you Elliot, very helpful, as usual!  I was hoping there’s an exception I wasn’t aware of, about the ‘closed period’!

Yeah I wouldn’t be too worried about getting it fixed though. The DWP should revise the second award to reflect the tribunal’s decision.

I think the ‘learning point’ as such is that it can be worthwhile arguing the toss about effective dates where you anticipate that a supersession appeal is going to result in a higher level of benefit. The client ought to be about £1,500 better off because the tribunal used the change of circs ground rather than just applying the reg 26 ‘default’.

Hello

A question in relation to the above:

Imagine a claimant receives SR DL + SR M since 1/1/2019. On 1/1/2021, following DWP-initiated redetermination, award is superseded by DWP on receipt of HCP report (26 D&A Regs), now solely SR DL (no Mob). The claimant appeals, arguing the HCP report is innacurate. However, the F-tT has evidence that an [advantageous] change of circumstances occured prior to the DWP decision, meaning claimant satisfied criteria for ER DL + SR M from 1/7/2020. The Ft-T wants to award ER DL + SR M due to this change of circs, superseding the award (23 D&A Regs). What date, under what paragraph under Sch 1, does the decision take effect from?

Do they need to determine whether the claimant notified the change at some point?

M

If the change was reported within a month of it resulting in a change in entitlement (i.e. by 1/8/20) - or if it was reported within 12 months after that point and the Tribunal is prepared to extend the time limit for reporting - then the effective date is 1/7/20.

If the change was reported late and the Tribunal does not extend time, then the effective date is whenever it was reported.

I should think that the “reporting” the change will usually constitute (a) ringing up the helpline and requesting a review of your entitlement (b) mentioning it in a PIP2 or AR1 or (c) bringing it up at an assessment.

Elliot Kent - 22 June 2021 06:02 PM

I should think that the “reporting” the change will usually constitute (a) ringing up the helpline and requesting a review of your entitlement (b) mentioning it in a PIP2 or AR1 or (c) bringing it up at an assessment.

Thanks, what “reporting” constitutes is what was troubling me, so thanks for clearing this up. I agree with your view on this.

M