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Fixed term appeal against a refusal of Child DLA and a subsequent award of Child DLA
Client’s child has an award of MRC/LRM from 2022 - 2027 - took an MR, client was happy and did not want to pursue an appeal for HRC. Relieved that she did not have to go through a Tribunal.
Prior to that there was a renewal that was refused and client has fixed term appeal from 2021 - 2022.
We are arguing for HRC/LRM for the fixed term period i.e. a higher award. Than the award for 2022 - 2027.
There is no dispute that the child’s condition worsened after the date of the decision for the fixed term appeal.
The medical panel member new to us and vice versa. Questioned our approach wondering why if child has got worse are you arguing for a higher award for 2021 - 2022. Than 2022 - 2027 actual award. Why did client not appeal the 2022 - 2027 award and so on.
I assumed the panel member would be familiar with the fears client have with Tribunals and why they may not pursue a case further even if arguably they have a case for e.g. HRC. Similarly, for pragmatic reasons its a an award for 5 years.
Which caught me on the hop as have had previous similar scenario’s for DLA and PIP and Tribunal’s have just dealt with the fixed term award. As per not ‘beyond the date of decision’. Not commented as this panel member did.
It seemed to be that it was felt arguing MRC/LRM was wholly inappropriate as the subsequent award was MRC/LRM i.e. how can you argue for a higher award for the fixed term?
For want of a better expression. The fixed term appeal is a free hit for client because of the subsequent award. Still nerve wracking though, the other factor is a CTC overpayment (child disability elements).
We advised HRC because we think it was arguable for the period of the fixed term appeal. We were coming from an angle of making the best of that window of time to maximise the client’s income.
We are cognisant that the child’s health had worsened and the award from 2022 - 2027 is lesser.
Rightly or wrongly, I am nonplussed by the panel member’s stance.
Anyone got any thoughts
The job of the tribunal is to decide the entitlement for the fixed period which falls within its jurisdiction. That award does not need to be consistent with other decisions of the SSWP which have been made before or since.
Is the tribunal member allowed to ask why you haven’t appealed the other decision when the logic of your case is that it is wrong? I don’t see why the question can’t be asked in passing. But it does not seem to have any material significance to anything.
It would be useful to know at what stage the appeal is at, because I’d have different thoughts depending on the position.
Are you waiting on a decision in the post? Or was the hearing adjourned?
In general though, I’d say that whilst it ought not to be the case, the disability member is going to be coming at it from the point of view of a lay person; their understanding of either a) the fact that what is in front of the FtT is solely that fixed term award and b) the very real practical reasons why a person might not appeal an award of MRC/LRM in order to obtain HRC/LRM (you’re gambling the £95 p/w DLA plus either the £76.75 CA plus any carer premium/element or £76.40 SDP against a potential gain of £33.65) is likely to be minimal.
It ought to be the case that even the disability member has a basic handle on the legal framework in which the FtT is operating, but it is too often the case now that even the judge could be more up to speed. It can also be the case in a DLA/AA/PIP appeal that the judge has less experience than the wing members - and that gives the potential for wing members to dominate. I’ve currently got one appeal that I picked up at the UT stage which is on fair hearing/inquisitorial function grounds where I’ve obtain the recording of proceedings and as a result of which I know the appellant was not asked a single question by the judge (and where her answers to the questions of the wing members obviously begged supplementary questions nobody asked). I’m not sure that sort of set-up is really conducive to a judge being able to prevent a wing member heading off down an entirely inappropriate path.
The job of the tribunal is to decide the entitlement for the fixed period which falls within its jurisdiction. That award does not need to be consistent with other decisions of the SSWP which have been made before or since.
Is the tribunal member allowed to ask why you haven’t appealed the other decision when the logic of your case is that it is wrong? I don’t see why the question can’t be asked in passing. But it does not seem to have any material significance to anything.
Phew that was quick Elliot even by your standards!
Regarding the first paragraph that was my view, I even checked some previous cases for sanity’s sake.
Regarding the second paragraph, the actual question is perfectly reasonable. It was a question I anticipated in ‘passing’ and I assumed that the Tribunal member may think there was pragmatism behind it for all the reasons mentioned in the original post. I didn’t foresee it would be a problem.
It was the inference that concerned me that we shouldn’t be arguing HRC, when the subsequent award was MRC and the client’s condition had worsened (not disputed by any parties to the appeal). I had never encountered it before.
Forgot to say the hearing was adjourned for lack of time. The subsequent adjournment notice directions refer to the tribunal noting the subsequent award had not been appealed and to confirm whether we were still arguing for HRC?
So clearly, had ‘material significance’ for the Tribunal.
Playing devils advocate with myself, lets say the Tribunal disagree with the case we are making i.e. doesn’t reach the bar required for whatever rate of the care component or mobility component. That’s one thing.
Its the inference alluded to above at the hearing arguably fettering any arguments for the HRC that concerns me.
Your client’s entitlement is a function of the tribunal’s findings as to the level of disability. If the tribunal makes some kind of ruling that you are precluded from arguing for HRC without appealing the subsequent decision which awarded MRC, that is obvious nonsense which will last a couple of nanoseconds at the UT.
Has the tribunal gone part heard? Or is it being sent to another panel? If its the latter then I wouldn’t give it a moment’s further thought.
[ Edited: 5 Oct 2023 at 01:15 pm by Elliot Kent ]Your client’s entitlement is a function of the tribunal’s findings as to the level of disability. If the tribunal makes some kind of finding that you are precluded from arguing for HRC without appealing the subsequent decision which awarded MRC, that is obvious nonsense which will last a couple of nanoseconds at the UT.
Has the tribunal gone part heard? Or is it being sent to another panel? If its the later then I wouldn’t give it a moment’s further thought.
That crossed my mind too. The latter.
Unfortunately, we do have to give it a moment’s thought, because we are rural we don’t have the numbers of different panel members other areas have.
Which is the reason I posted in the hope it will be seen and noted.
It would be useful to know at what stage the appeal is at, because I’d have different thoughts depending on the position.
Are you waiting on a decision in the post? Or was the hearing adjourned?
In general though, I’d say that whilst it ought not to be the case, the disability member is going to be coming at it from the point of view of a lay person; their understanding of either a) the fact that what is in front of the FtT is solely that fixed term award and b) the very real practical reasons why a person might not appeal an award of MRC/LRM in order to obtain HRC/LRM (you’re gambling the £95 p/w DLA plus either the £76.75 CA plus any carer premium/element or £76.40 SDP against a potential gain of £33.65) is likely to be minimal.
It ought to be the case that even the disability member has a basic handle on the legal framework in which the FtT is operating, but it is too often the case now that even the judge could be more up to speed. It can also be the case in a DLA/AA/PIP appeal that the judge has less experience than the wing members - and that gives the potential for wing members to dominate. I’ve currently got one appeal that I picked up at the UT stage which is on fair hearing/inquisitorial function grounds where I’ve obtain the recording of proceedings and as a result of which I know the appellant was not asked a single question by the judge (and where her answers to the questions of the wing members obviously begged supplementary questions nobody asked). I’m not sure that sort of set-up is really conducive to a judge being able to prevent a wing member heading off down an entirely inappropriate path.
Thanks for the response Simon. As per above adjourned with Directions. It was one of those hearings in which I just didn’t see the scenario presenting its self. I worked on the assumption that the tribunal would be aware ‘of the very practical reasons’ etc etc.
The irony with this case was the client was minded not to appeal because she was scared of the processes. But it was subsequent CTC child disability overpayments prompted her too. Something we indicated at the hearing.
Right, just seen the bit about the directions. You don’t say whether the tribunal has reserved the case for itself, but either way I’d be tempted to shove in a brief supplementary sub on the point of no appeal to the later MRC/LRM decision - i.e. covering what we’ve discussed - matter not before the tribunal, matter not relevant to what is actually in front of the tribunal, brief practical reasons (almost as an aside) but in support of the conclusion that nothing can be inferred from the appellant’s decision not to appeal the MRC/LRM decision.
I think I’d probably be politely combative in oral subs if the issue comes up in the next hearing - we think there is a case for HRC/LRM. There is an appeal against the decision for the earlier period because DWP made a decision of no entitlement. If the decision for the latter period was also no entitlement, that would have been appealed and we’d have argued HRC/LRM - but that scenario never arose. A claimant/appellant is absolutely entitled to settle for an award and to not appeal a decision which they consider ‘good enough’ because of the effort, stress and risks involved with an appeal - whilst arguing for what they believe their ‘correct’ entitlement should be in an appeal against a decision where nothing was awarded. The one simply does not bear on the other, either logically or legally.
In some cases, I might even be entirely upfront - due to the pressure on our service and the need to prioritise those cases where my involvement can make the most difference, I would not usually agree to represent in an appeal where a claimant already had MRC/LRM and wanted HRC/LRM.
Right, just seen the bit about the directions. You don’t say whether the tribunal has reserved the case for itself, but either way I’d be tempted to shove in a brief supplementary sub on the point of no appeal to the later MRC/LRM decision - i.e. covering what we’ve discussed - matter not before the tribunal, matter not relevant to what is actually in front of the tribunal, brief practical reasons (almost as an aside) but in support of the conclusion that nothing can be inferred from the appellant’s decision not to appeal the MRC/LRM decision.
I think I’d probably be politely combative in oral subs if the issue comes up in the next hearing - we think there is a case for HRC/LRM. There is an appeal against the decision for the earlier period because DWP made a decision of no entitlement. If the decision for the latter period was also no entitlement, that would have been appealed and we’d have argued HRC/LRM - but that scenario never arose. A claimant/appellant is absolutely entitled to settle for an award and to not appeal a decision which they consider ‘good enough’ because of the effort, stress and risks involved with an appeal - whilst arguing for what they believe their ‘correct’ entitlement should be in an appeal against a decision where nothing was awarded. The one simply does not bear on the other, either logically or legally.
In some cases, I might even be entirely upfront - due to the pressure on our service and the need to prioritise those cases where my involvement can make the most difference, I would not usually agree to represent in an appeal where a claimant already had MRC/LRM and wanted HRC/LRM.
Thanks Simon etc etc