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Unplanned reviews

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kthrn
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Salford CAB

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Joined: 27 October 2010

Ok, seems I am a little late to the party here and may be better putting this in a new thread. But it’s related to the discussion so far so will try here first.
Thankyou to every one who has contributed so far, to this thread and related threads 11621 and 11955 and 11394. Very informative.
I am interested in the practical experience people have been having with these supersession decisions made under Reg 26(1)(a) which terminate an award of PIP early. I’m inclined to the view of Elliot Kent in that a new HP report enables potential use of Reg 26(1)(a) to supersede, and that the technical ground for supersession is met by this, although the quality of the decision that follows may well be challengeable.
What outcomes have people got with these cases (see mine below if you wish)? Anyone got a statement of reasons they can share?
To my way of thinking, you can be saying, the SSWP did not execute the decision to supersede adequately; they have identified a potential ground for supersession but failed to show (or explain), based on weighing of all the evidence, why the claimant no longer meets the conditions for entitlement even though they did before.
But the possible ground is still extant- and I see no reason why the relevant facts cannot be weighed up in light of this and the decision remade.
(Nevip, I get what you say about a supersession taking effect from date award ends, which is intuitive, but I think the combination of s10(5) & (6) Social Security Act 1998 and the omission of any alternative effective date for supersession in respect of a Reg 26 (1)(a) decision in schedule 1 of the D & A Regs 2013 renders our intuition useless. Brian JB’s post covers the detail on this.)
Anyway, I attended Tribunal the other day where the appellant’s original award ended in Nov 17. In my paper submission I argued that the supersession decision by the DWP was inadequate- and though they had a HP report there was no explanation, given the previous med evidence and the Claimant’s evidence in PIP renewal form that her conditions had either stayed the same or worsened,  why the more recent HP report was accepted wholesale. So the decision had been improperly executed. In all honesty it was a bit of a rush job being done for a friend of a friend over the weekend and only after I had pressed send did I realise that I would probably end up with a set aside of the supersession decision and the appellant no award from November.
So we got to the hearing and sure enough the judge gave us the good news that they agreed with me and the decision to supersede was set aside. At which point I started backtracking and explained that as a potential ground for supersession existed given the HP report, I felt the decision should be replaced with an alternative supersession decision re-awarding and extending the initial award. Once they had weighed all the evidence and established the grounds for entitlement were still met etc.
They agreed to extend the award by 6 months which leaves the appellant without a gap- but I got the feeling that they did so to make me “shut up and go away” not because they thought I was right and that they had the power to do so…

Peter Turville
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Welfare rights worker - Oxford Community Work Agency

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Joined: 18 June 2010

It seems that where the issue is a ‘planned intervention’ (DWP appear now to be calling them ‘planned review’) under Reg. 26 tribunals are increasingly willing to conclude that the SSWP has not made out sufficient grounds for a supersession and will allow the appeal.

However if by the date of the hearing the original award end date has already passed that does mean there will then be no award for the period after the original end date (until a new claim is made) unless the tribunal also agree to extend the existing award (which in itself must be a supersession of the original award decision because the period of the award is a part of that original decision - so the tribunal would need to give reasons for extending the award, but not changing the level of the award, if the DWP then challenegd their decision).

If a tribunal allows the appeal and does not extend the award (because there are no grounds for supersession on either issue) I think there is currently no satisfactory answer. We now have a couple of cases where this has happened and we are seeking leave to appeal because the tribunal has not given reasons why it refused to extend the award (so as to ensure there was no gap in entitlement). We did not represent at the original hearings and the cases were only referred after the tribunal decision and the claimant / original adviser only then realised there would be a gap).

It is now our practice to recommend a claimant makes a new claim immediately their award is ended by the Reg 26 decision (or as a back stop before the orginal end date has been reached if there has still not been a hearing).

In a case where the tribunal does extend the award but only for a short period this would mean the claimant still has to ensure they make a new claim before the new end date of the award - it is highly unlikely the DWP will invite a new claim before that new expiry date (unlike the normal practice under DLA/AA).

This is not an issue in ESA because a tribunal decision that there were no grounds to supersede (on receipt of a HCP opinion) simply restores the indefinite award.

Note the other essential difference between a Reg 23 (‘unplanned review’ - an actual change of circs) and a ‘planned review’ under Reg. 26 is the date from which the seupersession takes effect under Sch. 1 Parts 2 & 4.

So yes its still all a bit of a mess really!