Tribunal restored original award which already ended and didn’t extend term. Client is left with a gap in her award.

I would suggest you need to see the tribunals reasoning in their SOR. What reasons do they identified for determining that there were no grounds to supercede and which specific UC, PIP etc (decisions & appeals) reg(s) and any case law they applied?

Regs 23, 26 & 31 provide the various potential grounds for supersession and the UT decisions in MR and TH consider their application in practice.

As the DWP had made a new award (and even if it had been a nil award decision) it was open to the tribunal to extend the period of the award even if it concidered there were no other grounds to change the level of the existing award. The length of an award can be the only issue in a PIP appeal.

Arguably, in the particular circumstances of your case, any failure by the tribunal to consider at all or give adiquate reasons for not extending the existing award may be an error in law in itself.

Therefore your case may raise some important issues about the application of the DA Regs. One would hope the UT would have something to say about a tribunal making a decision which led to the practical effect of creating a potential gap in entitlement (unless a new claim was made immediately) without giving very clear reasons.

The practical effect of the tribunal decision was that your client had to make a new claim immediately following the tribunal decision.  However an award on that claim could further complicate the outcome of any challenge to the tribunal decision.

As your client did get a new award on ‘review’ they could not also make a new claim at that point. That is clearly different to the situation where the ‘review’ led to a nil award and consideration should then be given to a new claim to protect a claimants interetest while a MR/appeal is made (as is the case with AA/DLA).

The ‘planned intervention/review’ process using the supersession grounds in Reg 26 do appear to be generating far more complications (aside for poor quality decisions) compared to the equivelent provision in ESA (that don’t arise under AA/DLA).

please keep rightnet updated!

In response to the questions:

IMO - Yes -  you should have advised a reclaim either in the six months (see renewal) before the award was due to run out or on the date the award ended.

The tribunal did not have the power to open the award to correct any error by the SSWP in failing to supersede correctly. This isn’t a ground for supersession.

As you haven’t got the WSR I’m not sure how you could know ‘...the tribunal had always considered the evidence with the view of increasing the award for a fresh term.’

You can request a special payment for maladministration - particularly if the period is bookended by awards of PIP. If there’s no new claim then I’d say you may not get a positive outcome.

I think the effect of the Tribunal’s decision was simply to set aside the DWP’s supersession decision and not make any outcome decision.

The effect is to remit the matter back to the DWP to make that outcome decision.  (See R(IS)2/08 at [40])

40. The question whether a tribunal allowing an appeal against a decision as to entitlement to benefit is obliged to substitute another decision as to entitlement to benefit is important. It obviously has implications for the way tribunals make decisions but it also has implications for the Secretary of State because his power to make further decisions following a decision of a tribunal depends on the scope of the tribunal’s decision. This is evident in the present case, where the tribunal sitting on 21 February 2003 neither considered whether the claimant possessed capital as a result of the purchase of the flat nor whether she was entitled to income support. If the tribunal ought to have given a decision as to entitlement to benefit, its decision was incomplete and the Secretary of State ought merely to have referred the case back to the tribunal for completion. That would also be the only decision we could give on this appeal. If, on the other hand, the tribunal was not bound to give a final decision as to the claimant’s entitlement to benefit, the Secretary of State and the tribunal sitting on 26 August 2005 were entitled to give one and we can also consider doing so.

The usual grounds for supersession in so called planned review cases is receipt of medical evidence from an HCP. 

If the Tribunal set aside the previous ( supersession) decision because the medical evidence was not identified at the hearing,( but the DWP have it in their possession), then that ground still exists and can still be acted upon., i.e. it can now be used to re-open the award.

If the award is re-opened in this way , it will be an appealable decision (but there may be a risk of an unfavourable decision on appeal)

The award made on the subsequent claim will be unaffected by the (re-opened) award because the new award post dates the previous decision.

This would be the case even if the Tribunal dismissed the appeal and left the previous supersession in place.  The new claim would then take effect as a further supersession

I would be very interesting in seeing the SOR once it arrives.

Thank you all for your wise opinions.  I will keep you informed!

Today another agency has referred a SOR to us that appears to raise the same issue as Toya’s case (we are awaiting the other paperwork).

Existing award SRDL to 23/9/17. ‘Planned review’ decision 31/1/17 no award. Tribunal hearing 19/12/17 - no grounds for supersession - thus award ‘re-instated’ to 23/9/17. Tribunals SOR includes:

“The tribunal noted that the existing award has now ended. The appellant will need to reapply for the PIP.”

The tribunal have made no reference to any legislation or case law and there are also other clear grounds to seek leave.

Whilst it could be argued the claimant could/should have made a new claim as soon as the supersession decision was made on 31/1/17 - it clearly illustrates the wider issue (which does not arise under ESA because awards are indefinite so there is no ‘expiry’ dates for a tribunal decision that there were no grounds to supersede to run up against).

Is anyone aware of a case that raises this specific issue that has already been addressed by or is currently before the UT?

Are other advisers finding tribunal’s are now making decsions that there were no grounds to supersede in ‘planned review’ cases?

Has any one else seen tribunal decisions that result in the same consequence (it may be helpful to have other examples if this case proceeds to the UT)?

All the time.

I have one where the existing award 1. was terminated (nil) 2. prior to scheduled end date of March 2018.

3. On MR awarded part of what was awarded before from 2017 - 2020.

Clt appealed on the basis should have got same as before.

Dec under appeal is indicated as 2.

Clt has award in place where if there is no relevant CoC the present award is subject to review by the DM.

What is it?

It’s too early to be treated as a renewal.

On the basis the DWP could terminate as no legal basis do you advise a further PIP claim? What happens if you don’t? What happens if you do?

Sometimes there are no clear answers. Just clear questions.

UPDATE
I have now received the SOR and ROP.
As for the SOR, it appears that the tribunal relied in that the DWP failed to identify the basis for a supersession and therefore reinstated the old decision (which had expired, leaving a gap in my cl’s PIP entitlement). The decision is based in MR’s case (SOR (8)).
The Tribunal writes that my client stated in her review form that her condition hadn’t changed or had, indeed, worsened.  However, it didn’t make findings in relation to her conditions / descriptors claimed / further evidence submitted.
The first FTT in 2015 had awarded her the Enhanced rate of Mobility based in descriptors 1d and 2b.  My cl’s mobility has worsened and she presented medical evidence.  The DWP, admitted that her Mobility (Moving around) had deteriorated and awarded her 2d (but didn’t award on planning and following journeys).  Could not this been deemed as change in circumstances? (Reg 23?)
I believe the Tribunal should have made findings in relation to the descriptors claimed and further evidence submitted. 
The ROP are pretty scant… the Judge failed to record a discussion regarding the length of the award that my colleague, who attended the hearing, initiated (the judge mentions at paragraph 12 of the SOR).
I’ve written to the DWP requesting to re-open the old award….
I haven’t requested to set aside the FTT but will do.
Any comments appreciated!

I think the Tribunal is wrong and have attached a draft PTA application to get you started if you need it.

I think it’s quite brave to launch into challenging the decision being absent from the appeal and only having the limited information available.

The rest of the documents would be useful, or even required, before forming a view.

The ROP and WSR maybe scant - the only criticism I could say is the ROP doesn’t acknowledge the rep or indicate that the reps views were considered other repeating those in the submission.

I would have to say the tribunal agreeing that the claimant had written something in the claim form is not an acceptance of those somethings as fact.

I’d be careful -

You can’t always get what you want But if you try sometime you find You get what you need

Jagger/Richards

and

Rules are for the obedience of fools and the guidance of wise men.

Harry Day

Noted John. The Tribunal made quite plain that it was motivated by MR and not the case documents so I feel comfortable expressing a view without those documents. OP is of course free to adapt or wholly ignore anything I’ve said as appropriate - its a starting point cobbled together on the train home.

The point about reg 23 is not that there was a change of circs but that there was evidence of one which was not dealt with. I think that would be an error on your understanding too?

I agree with Elliot. Further the tribunal in the SOR does not identify the grounds for supersession submitted by the SSWP. Indeed it finds (para 7) that it purported to be reg 26 but finds ‘in effect’ it was under Reg 23. Perhaps the tribunal were not assisted by the SSWP’s submission which did not identify (or confused) these seperate grounds?

It also found (para 12) that the representative had inferred that the tribunal should consider extending the award beyond 21/10/17.

So its decision raises two issues of general importance that I would argue now need to be fully addressed by the UT.

(1) the inter-relationship (if any ) between Reg 23 & 26 (and 31 in this case) and whether they are in practice interchangable - given that the way the SSWP applies both Regs is usually to refer a claiamnt for a new F2F and then applies Reg 26 (even if the case were one in which it was an application under Reg 23 by the claimant due to an actual COC). Equally in cases where Reg 26 was clearly applied but SSWP presents a submission as if it were a decision under Reg 23. Is it the role of a tribunal to identify the appropriate provision even where the SSWP has not - MR v SSWP (PIP) [2017] UKUT 46 (AAC)

(2) because of the delay in cases reaching a hearing by the date of hearing the original end date of an award has already passed - whether a tribunal is required to consider extending the award beyong the original end date. Particularly when it has been put on notice of this issue (as in this case) and/or it determines that the SSWP has not shown grounds for supersession (as in this case - with the cosequence that the award will still end at 21/10/17 with an inevitable gap in the award (and requirement to make a new claim) unless the SSWP extends the existing award on consdieration of the tribunal’s decision (unlikely?).

You could therefore argue in your grounds for set aside / leave to appeal that this case raises issues of general importance that should be considered by the UT.

I would suggest at this point you will need to consider the interests of your client - is it appropriate for the client to pursue the case to the UT? The alternative (if the SSWP does not agree to extend the award) is to make a new claim now (unless this has already been done) and know that there will be no award from 21/10/17 until the new claim.

Elliot Kent - 15 March 2018 09:15 AM

Noted John. The Tribunal made quite plain that it was motivated by MR and not the case documents so I feel comfortable expressing a view without those documents. OP is of course free to adapt or wholly ignore anything I’ve said as appropriate - its a starting point cobbled together on the train home.

The point about reg 23 is not that there was a change of circs but that there was evidence of one which was not dealt with. I think that would be an error on your understanding too?

I think the evidence of one (a CoC) depends on what’s in the docs - My point is simply a claimant saying they are worse is not necessarily a material fact - terminal decline is part of the human condition - most people (in my experience) say in their opinion they’re worse than before.

Therefore I’d hold off on an opinion without seeing the docs.

What’s the issue with making a further claim? 

Thank you all for all your valuable comments. 
Elliot and Peter, I agree with your views.  I also agree that this case –and as it seems it’s not the only one- raises issues of general importance that should be considered by the UT.  I would need to discuss with my cl. 

My client made a fresh application.  Apart from physical issues, she has mental health issues and is extremely anxious about another F2F assessment.  We have asked for a paper based review – bearing in mind that there’s plenty of evidence of her conditions (I know I’m being naïve and very hopeful!) We’re waiting for the response from the SSWP about our request of extending the award from October 2017 to the date of the fresh claim.

John, I understand your view of holding off an opinion without seeing the documents.  However, the tribunal didn’t even look at them- it just based the decision on MR. The bundle is about 300 pages, and to be honest, I thought it was going to be a simple and straightforward case as, there’s plenty of medical evidence to corroborate the client’s claims.  In fact, the DWP in the ‘review’ decision accepted that her mobility had deteriorated and changed the descriptor from 2b to 2d. However, it ignored the Planning & Following (which had been awarded before and there’s evidence – from the time of the previous decision and the ‘review’ decision).  I couldn’t attend the hearing so I asked a colleague- you can’t imagine my surprise when she described what happened! 

Last but not least, thanks a lot Elliot for your draft and to the joys of commuting!