PIP Tribunal Warning

I have a client who had an award removed on supersession

The DWP included the bit about a Tribunal having power to reduce the points awarded

The Tribunal adjourned to obtain more medical evidence and evidence of the clinet’s ESA history, but also repeated the “warning”

My question is whether the Tribunal   could not only reduce the points awarded (which would not matter as there is no subsisting award) but also ( standing in the shoes of the decision maker)  set an earlier superssesion date thus creating an overpayment

I know that any such overpaymet would only be recoverable if the Tribunal also determined that my client had failed to disclose a material fact (change of circustances) and that would be a verty long shot for the Tribunal, but I am concerned for the moment that the Tribunal issued the warning when there is no subsisting award.

I have never had a Tribunal issue that sort of warning when there is no award made in the decision under appeal . 

Is the worst case scenario of being saddled with an overpayment at least a theoretical possibility?

I think it must be conceptually open to the Tribunal to change the grounds and/or effective date of the supersession to the claimant’s detriment, as they have the power to do this where it is to the claimant’s advantage also.

That said, normal considerations of fairness will still apply as in the reduced award cases. If the Tribunal is off on a frolic of its own trying to figure out when exactly the appellant’s health improved rather than dealing with their assertion that it had worsened, then there is going to be serious scope for self-inflicted error of law.

We can perhaps imagine a situation where someone has an assessment and the decision is superseded only from the decision date based on new medical evidence but in the course of the appeal it becomes very clear that they had a total recovery at some earlier date. It might be said that that in a case like that where it is very clear what the effective date should have been that this should be recorded on the decision notice.

I think that if the Tribunal did use an earlier effective date, they would not be responsible for deciding whether this created a recoverable overpayment. That would just be left to the DWP to decide.

Perhaps the tribunal are right to issue this warning.  If I have been awarded two points in a PIP decision and the tribunal remove those two points then, although it does not make any practical difference to me (no award before or after the hearing) it may have the effect of making future claims more difficult for me.

I would think that reducing the award from an earlier date than either side contends for would require a separate warning, in addition to the warning about reducing the points.

Agree with what Elliot has said, and it would be interesting to know the exact nature of the warning -

- what precisely was said in terms of the warning given at the adjourned hearing?
- was that warning repeated at any point in the reconvened/substantive hearing?
- was the composition of the tribunal identical in both hearings?

but playing devil’s advocate for a moment, in a supersession case (where, therefore, the awarding decision itself is before the tribunal as is the date that any supersession should take effect) and where the superseding decision under appeal was one that had the effect of removing entitlement from a particular date, the giving of a warning could surely only mean that the tribunal considered that it might be appropriate to fix an earlier date for supersession/an earlier date for the removal of the award?

Yes, I think a tribunal conducting a hearing fairly needed to properly spell this out, rather than it being something that was there by implication - but if I were representing an appellant in this situation, I’d hope that I would have been live to this possibility. Or certainly sought clarity from the tribunal as to precisely where they were going when giving the warning…..