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Tribunal Power to overturn new claim decision on appeal for previous decision

 

a_van_boost
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Hello - if anyone could help me out with this case I’d be very grateful as I’m not sure what the outcome at the FtT would be:


1. the client had a PIP claim which was disallowed from 25/07/17 for scoring 0 points at assessment. She came to our centre to challenge the decision at appeal.
2. The client then went to a different advice centre and made a new pip claim which was awarded at standard rate care component from 19/10/17 - 04/07/20 at assessment (decision date 22/01/2018).
3. We have now been given an appeal date for the end of the month for the July disallowance (the first claim).


(It should be noted that the client has severe mental health difficulties, thus why she attended multiple centre’s without informing them)

As it stands I feel that arguing for the 3 month gap in entitlement (25/07 - 18/10) at standard rate will not be challenging. However on assessment we actually predicted that the client should be entitled to enhanced rate daily living and standard rate mobility. My question is that if I argue for enhanced rate and it was allowed could this then have the potential to override the second claim decision? Does the Tribunal have the power to do this? Or would I have to make a fresh appeal for the second claim? And if so what would be the authority.

If anyone has had something similar I’d be very grateful for your input.

Thanks again.

     
Elliot Kent
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The Tribunal has no jurisdiction against the second decision. The conventional logic is that the second decision overrides the Tribunal’s decision leaving the Tribunal looking at a “closed period” from 25/07/17 - 18/10/17.

However, if the DWP’s second decision would be inconsistent with the Tribunal’s decision, the DWP has the power to conduct an any time revision to correct it under regulation 11(2) of the Universal Credit (etc) (Decisions & Appeals) Regulations 2013.

So the strategy in a case like that is probably to see how the appeal goes - if your client “beats” their current award, then you can ask for revision. If they don’t then you don’t need to do anything.

      [ Edited: 20 May 2018 at 12:28 pm by Elliot Kent ]
a_van_boost
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Elliot Kent - 16 May 2018 05:50 PM

The Tribunal has no jurisdiction against the second decision. The conventional logic is that the second decision supersedes the Tribunal’s decision leaving the Tribunal looking at a “closed period” from 25/07/17 - 18/10/17.

However, if the DWP’s second decision would be inconsistent with the Tribunal’s decision, the DWP has the power to conduct an any time revision to correct it under regulation 11(2) of the Universal Credit (etc) (Decisions & Appeals) Regulations 2013.

So the strategy in a case like that is probably to see how the appeal goes - if your client “beats” their current award, then you can ask for revision. If they don’t then you don’t need to do anything.

I pretty much thought it would be for a closed period but just wanted to ensure I was correct. Thank you so much for the legislation/advice on revision - it’s definitely going to come in handy.

     
Jon (CHDCA)
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Similar question, was wondering if anyone can say if this differs from the above scenario or not:

Client has a PIP award, set to run to 2020. He appeals it, asking for a higher rate.
While awaiting for hearing date, he reports a deterioration. They reassess him.
The supersession decision comes back - slightly different points awarded, but the award level is unchanged. It’s still set to run to the same 2020 date.

I assume that the latter (non?)-supersession does limit the length of the award that the tribunal can give?

(In practice, I can see that Elliot’s point above about any-time revision if the hearing is successful is perhaps to way to go at it anyway).

     
Billy Durrant
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Personally I think that you would be much safer appealing both decisions (and asking for the hearings to be heard together). Relying on the DWP to accept that it is out of step with the tribunal decision on one claim to adjust the other seems like a leap of faith to me. If the DWP ever gave 2 hoots about what the FTT thinks why is it losing 70% of PIP tribunals? I’m sure that Elliot knows better than me but it’s not something that I would be comfortable with relying on unless there was no option of a late appeal and it was a last throw of the dice type thing.

.

     
Jon (CHDCA)
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Thanks Billy, good point about asking for the hearings to be joined. I guess that possibility is a silver lining from the long wait times these days.

     
Elliot Kent
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Jon (CHDCA) - 20 July 2018 11:13 AM

I assume that the latter (non?)-supersession does limit the length of the award that the tribunal can give?

I think it’s arguable either way. It depends on whether the non-supersession is a decision attracting finality or not; which in turn would seem to depend on whether you adopt Rix LJ or Arden LJ’s analysis from Wood v SSWP.

I agree with Billy that appealing both decisions is the neater and less headache-inducing solution.

I also agree with Billy that - in general - you want to be appealing both decisions and having the cases heard together rather than relying on any time revision. I think OP’s case was slightly different with the hearing being 2 weeks away and with the award on the 2nd claim.