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Disagreeing with a provisional decision on a point of law - correct procedure?
Hi,
This is related to my case about enhanced mobility over pension age and the loophole that existed before 30th November 2020.
The client expressed disagreement with the initial provisional decision awarding enhanced daily living and standard mobility on the papers, due to the argument for being able to achieve enhanced mobility.
The judge has issued a direction, which effectively looks to me like a preliminary ruling on the law, rejecting the client’s argument, and warning the client that he has nothing to gain. The reference to the LEAP exercise decision (the judge’s point being he could have appealed this at the time) seems a red herring to me, as he can also appeal the later decision.
What is the correct procedure from here if we wish to continue? Can we ask for a full hearing and reargue the point of law, or is it possible/better to apply for permission to appeal?
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The provisional decision, if rejected, goes away. The case then proceeds to a full hearing. Ordinary practice would suggest that the Judge who made the provisional decision would not be involved in the hearing. All issues would be live before the new Tribunal.
Judges will sometimes express their views on the law in directions notices. This creates a bit of an odd situation because directions given by the Tribunal are always capable of being set aside or amended by a future Tribunal. Therefore if the directions notice offers an opinion on the law, there is nothing to stop the Tribunal which hears the appeal from taking a different view. The difficulty comes about because the directions notices are usually issued by senior salaried judges and fee paid judges often feel that they must follow these views. If the issue has been designated as a preliminary issue and ruled on, then that’s a different story.
If your client wants to proceed with the issue, then it would be sensible to respond setting out very fully and clearly why you consider the judge is wrong. In particular you would want to explain:
1. That your client had an award of PIP including SRM.
2. That the SSWP has superseded this decision on the ground set out in reg 26 D&A.
3. That reg 27(1) permits supersession of PIP awards post pension age subject to reg 27(2).
4. That reg 27(2) precludes supersession based on changes of circumstances in certain cases.
5. “Changes of circumstances” refers back to reg 23 D&A.
6. The supersession in this case is under reg 26 D&A, not reg 23 D&A, and therefore reg 27(2) is not engaged.
7. The result is then under reg 27(1) that supersession is permitted without restriction..
8. The case is on all fours with MH. See also the 2020 Amendment Regulations and the explanatory note which are intended at closing the ‘loophole’ you are aiming to exploit by covering both reg 23 and reg 26 supersessions.
9. The LEAP exercise isn’t relevant to the correctness of the decision
A mere objection on any grounds suffices to get the matter in front of a full panel. My experience of this thus far has been extremely positive. The salaried judge who issued the preliminary decision (coincidentally making an award but in the process removing points which were amongst the few awarded on first claim and maintained at MR) wrote at length on the law and issued lengthy directions which in another time might have been considered sufficient so as to form the entire constitution of a small country.
The subsequent hearing disregarded every single aspect of the above and awarded appropriately inside 10 minutes. It is, at least for me, a recurring pattern.
Thanks to you both.
My concern is that Elliot’s suggestion is substantially identical to the submission that was already made that led to this direction (on his advice in the first thread), and the direction this time is substantially the same as the initial provisional decision. So this dynamic could appear to go on indefinitely - will it just be about who backs down first?
It won’t go on indefinitely. The judge can have another read of the new submission and see if they change their mind. If they don’t it will go to a hearing and the new tribunal will make a decision. If you disagree with that you appeal.
It won’t go on indefinitely. The judge can have another read of the new submission and see if they change their mind. If they don’t it will go to a hearing and the new tribunal will make a decision. If you disagree with that you appeal.
Yup, this. Just needs one party to dispute as you have and then you’re in business.