No Decision Following Report of Change of Circumstances
I have a client who was on PIP. She reported a change in cirucmstance 2/9/16 and was sent a new full PIP form to complete. The DWP have never made a decision on this and her award remained as previous. On 15/4/17 she was sent an Award Review form and her benefit was stopped. She is now at appeal against the decision from her review form. BUT, surely she is entitled to receive a decision on the reported change from 2/9/16 - she has requested the award be superseded but had no decision. And does this make the later Award Review invalid? Thanks
I don’t think the later review is invalid because it is a superseding decision based on an assessment that DWP may carry out at any time for any reason as I understand it. The most recent decision needs to be appealed on its merits.
But it is perfectly possible to interpose an earlier superseding decision from the date of her supersession request in 2016, and refusal to supersede carries a right of appeal (see Neil Wood v Secretary of State for Work and Pensions where the same point is made in relation to DLA). So I would say she is entitled to have a decision on her supersession request and embark on a separate MR/appeal about that. But the outcome would only affect the closed period between her original application and the more recent review decision.
I would take a slightly different view to HBA but I think its more a difference of approach rather than one of us being right or wrong.
The DM in 2018 needed to decide whether any supersession of the last decision was appropriate and if so, what the grounds for supersession were and when the supersession took effect from.
We can assume that the DM decided to supersede to nothing from the date of decision on the basis of a new medical report per reg 26(1) of the Decisions and Appeals Regs 2013.
But it was hypothetically within the power of that DM to find that things had worsened since the last decision and to supersede the award as from the date on which the claimant reported the change of circumstances - 02/09/16 - on the basis of reg 23 and paras 14-15.
Because the Tribunal is stepping into the shoes of the DM, it retains those decision making powers. This includes considering grounds for supersession which the original DM didn’t use (as per DS v SSWP (PIP)  AACR 19 and all of those other cases).
I can’t see what would stop the Tribunal then, if it were minded, from increasing the award from the reporting date onwards - so I would probably be inclined to forget about the supersession application as such and I would be inviting the Tribunal to consider the whole position since the reporting date.
And does this make the later Award Review invalid?
Yes, I prefer that because it efficiently bundles all the issues up into one appeal. It could be added that the DM has, in superseding from date 2, impliedly rejected the application for supersession from an earlier date and therefore all issues are on the table in this single Tribunal hearing.
Thanks for your opinions. It would certainly be good to avoid adjournment and get this sorted for the client. I will push for a decision.