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A Tribunal’s discretion to look at previous decisions
Hi HIve
I’ve had a funny conversation with the LEAP team earlier. I had a client with an appeal against a 2020 review decision, their new claim decision having been made in May 2017.
LEAP have refused to review the new claim decision because they assert the Tribunal considering the 2020 decision have discretion to review the 2017 decision.
I vaguely remember something from aeons ago about a Tribunal having such discretion but half hour’s googling earlier didn;t turn it up. Also I cannot see how that could possibly fetter the SoS’ discretion to revise but I thought I’d invite peoples’ comment, particularly if you can remember that old DLA(?) decision about revising previous decisions. I’ll have a read of Sweet & Maxwell later but all the same I’d appreciate thoughts.
Obvs other than “why are you typing here during NAWRA?” but it’s really bugging me!
[ Edited: 4 Mar 2022 at 03:48 pm by Dan Manville ]The Tribunal is limited to reviewing its decision once an application for leave to appeal to the UT is made (see LM v SSWP[2009] UKUT 185 (AAC) ( cited in Sweet & Maxwell in the commentary re Rule 40 FtT Proceudure Rules.)
The Tribunal would in any case have no jurisdiction over the later decision on the new claim and any determination in the earlier decision can be revisited when adjudicating on the new claim. See Secretary of State for Work and Pensions v AM (IS) [2010] UKUT 428 (AAC) and AM -v-Chelmsford Borough Council (HB) [2013] UKUT 245 (AAC)
[ Edited: 3 Mar 2022 at 04:49 pm by Stainsby ]What’s happened here Dan sorry? Are we saying that:
(1) There is a regular SSWP decision on the initial claim in 2017
(2) There is then a second regular SSWP decision on the review in 2020 which is now under appeal (i.e. an AR1 type review, not a LEAP review)
(3) LEAP are now saying they won’t look at the 2017 decision because the appeal against the 2020 decision is still live and the FtT could correct any error in the 2017 decision.
If that’s it, then its wrong.
There are some (pre-MR) cases where a Tribunal has been able to treat an appeal which is notionally about one decision as in fact being about some other decision. For example to treat an appeal against a refusal of a new claim as instead being about the termination of an earlier claim (Sweet & Maxwell cites Abbas v SSWP [2005] EWCA Civ 652).
The Tribunal which considers the 2020 decision could not do very much about the 2017 decision both because (1) if the appeal which the FtT is considering is to be taken as against the 2017 decision it is going to be hopelessly out of time and (2) the MR requirement would need to be satisfied in relation to the 2017 decision.
I had a PIP hearing where the tribunal increased the award under appeal and increased the previous award. (Not LEAP decisions.) The judge said they could do this because it was a supersession decision. The judge said he was expecting the DWP to ask for the written reasons for this, but they didn’t. This was a shame because then I would have been able to see the legal basis for doing this. I wanted to argue for this in another case, but, because I couldn’t find anything on how a tribunal could do this, I wasn’t able to persuade that judge. I put the earlier success down to a freak occurrence!
What’s happened here Dan sorry? Are we saying that:
(1) There is a regular SSWP decision on the initial claim in 2017
(2) There is then a second regular SSWP decision on the review in 2020 which is now under appeal (i.e. an AR1 type review, not a LEAP review)
(3) LEAP are now saying they won’t look at the 2017 decision because the appeal against the 2020 decision is still live and the FtT could correct any error in the 2017 decision.
.
Nearly; the appeal against the 2020 decision was disposed of last August but the LEAP team are saying they won’t touch the 2017 decision because the Tribunal could have.
I can feel a pre action letter coming on.
Funnily enough it was only Wednesday I was chatting with a colleague saying just when you think you’ve time to think all of a sudden the skies fall in and you’re deluged.
Thanks all
The Tribunal is limited to reviewing its decision once an application for leave to appeal to the UT is made (see LM v SSWP[2009] UKUT 185 (AAC) ( cited in Sweet & Maxwell in the commentary re Rule 40 FtT Proceudure Rules.)
The Tribunal would in any case have no jurisdiction over the later decision on the new claim and any determination in the earlier decision can be revisited when adjudicating on the new claim. See Secretary of State for Work and Pensions v AM (IS) [2010] UKUT 428 (AAC) and AM -v-Chelmsford Borough Council (HB) [2013] UKUT 245 (AAC)
I think I might have given you the wrong end of the stick here. I’ve edited the OP for clarity.
[ Edited: 4 Mar 2022 at 03:49 pm by Dan Manville ]The Tribunal which considers the 2020 decision could not do very much about the 2017 decision both because (1) if the appeal which the FtT is considering is to be taken as against the 2017 decision it is going to be hopelessly out of time and (2) the MR requirement would need to be satisfied in relation to the 2017 decision.
Of course the MR requirement is what I was missing; my memory crawls back further than that… and my dreams even further :)
I have a similar issue. Client won her PIP appeal 01/10/21 and a tribunal awarded SDL and EM. In the paperwork was a LEAP decision dated 22/01/2021 where they do not change the original decision of 24/07/2017 which scored her 4 points for 11b. There is evidence in the papers that this decision should have been revised to 11d. I request MR. DWP state they cannot look at earlier decision because of the tribunal ruling, yet that ruling was about a later decision date. Have written back to them asking for a full explanation. Nothing as yet.
I I request MR. DWP state they cannot look at earlier decision because of the tribunal ruling, yet that ruling was about a later decision date. Have written back to them asking for a full explanation. Nothing as yet.
Well having just got my reply to my LBA… they have agreed to review the decision but only against an assertion; with no law to back it up, that the Tribunal considering the 2020 decision could have revised the earlier 2017 decision!
That’s really interesting. Are you willing to anonymise their letter and email it to me please?
I have two LEAP cases where they HAVE looked at the previous decision ( and revised it in the claimant’s favour) prior to a later tribunal decision so I know that legally the DWP can do it.
That’s really interesting. Are you willing to anonymise their letter and email it to me please?
I sent you a message but don’t seem to have received a reply.
Thanks Dan. I didn’t receive the message, sorry. I have sent you one via Rightsnet. Let me know if you don’t get it, thank you