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Powers of Tribunals

 

Pete at CAB
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Can someone clarify whether or not a Tribunal hearing a case for ‘good cause’ for not attending a PIPS assessment can go on to make a decision about actual entitlement to PIPS if they have sufficient evidence in front of them to do so.

I have a vague recollection that there is caselaw that permits this but I can’t track down the actual case. Have I misremembered this?

     
Elliot Kent
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I think the answer is that they can. A Tribunal assumes the powers of the original decision maker and can make any decision he might have made - R (IB) 2/04 . The original DM could have said “You have good reason for not attending the assessment, furthermore having another assessment isn’t necessary because you qualify for PIP on the available evidence” so the Tribunal can do that too. I don’t think there is a UT case on this point in the PIP context specifically.

     
Daphne
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I agree and [2017] UKUT 335 (AAC) confirms that tribunals of ‘failure to attend’ decisions must have all three members so there will be sufficient to consider entitlement

     
Peter Turville
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Daphne - 03 January 2019 03:21 PM

I agree and [2017] UKUT 335 (AAC) confirms that tribunals of ‘failure to attend’ decisions must have all three members so there will be sufficient to consider entitlement

Possible in theory? However I would suggest a tribunal would be very reluctant to make such a decision in practice unless there was very substantial medical evidence. Although a face to face assessment is not a requirement for an award of PIP. A tribunal does not have to deal with an issue not raised by an appeal. And if the issue is about FTA then actual entitlement is not an issue raised by the appeal (unless the claimant actually raised it in their grounds).

By chance today we have received a decision setting aside a tribunal decision where the issue under appeal was FTA but subsequent to that decision the claimant had attended an assessment and HCP had recommended enough points for an award. The DWP then submitted to the tribunal a ‘proposed award’ on the basis of the HCP opinion. But there was no evidence that the SSWP had revised the FTA decision or had made an actual decision on entitlement based on the HCP. The tribunal dismissed the appeal awarding 0 pts (and completely ignored that the issue before then was actually a FTA decision).

There may be inherent problems with the potential approach of a tribunal deciding entitlement when the issue before them is FTA.

     
Daphne
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Yes I agree there would need to be clear evidence - but if there were, and particularly if the process had been dragging on a while, you might be able to persuade a tribunal to deal with the whole thing

     
John Birks
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ROBBO
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At the Manchester Tribunal User Group meeting, this was discussed with particular reference to people migrating from DLA.  The District Judges talked of :-

https://www.gov.uk/administrative-appeals-tribunal-decisions/om-v-secretary-of-state-for-work-and-pensions-pip-2017-ukut-458-aac

- authority that DLA must be reinstated until a substantive decision is made on PIP claim. 

Judge Mesher says in the later stages “Plainly I am in no position to substitute a decision awarding PIP, because there has been no fair opportunity to put forward evidence about the satisfaction or otherwise of the main conditions of entitlement”

From memory, the Judges expressed the view following this that they would be unable to consider conditions of entitlement as those elements of the decision had not been subject to a decision or MR.

 

     
Chrissum
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Then of course there is the issue of reducing rights of challenge to the decision. If the tribunal goes ahead and makes the decision on entitlement and decided not to make an award, your rights of appeal are severely fettered whereas if the tribunal direct it back to the DWP to make a decision, the client has the usual (granted lengthy) route of challenging an “unfair” decision. I agree that they do have the power to proceed, but in my experience are reluctant to do so. Of course if the DWP are recommending a decision they should go ahead and make it without wasting tribunal time.

     
Elliot Kent
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The bog standard case is this: I claim PIP for the first time, my claim is refused as I don’t attend the medical and my claim is refused. I appeal arguing good reason and the DWP argues at Tribunal that my reasons weren’t good.

You can add further complications to that scenario. One is raised by Peter which is that the DWP have conceded good reason but haven’t revised their decision. The other is raised by ROBBO which is that it’s a DLA conversion case. Or you can have both complications at once like the case that I have at UT…

I think that, in any case, the answer is the same. The Tribunal must deal with the issues raised by the appeal and may, but need not, deal with other issues. It may substitute any decision which would have been open to the original DM and it may, in an appropriate case, merely set aside the decision and remit to the DWP the claim to be re-decided. Whatever it does, it must ensure that the parties are put on fair notice of the action it is proposing to take so that they have an oppurtunity to respond to the relevant arguments.

I don’t read OM as setting out any general authority that the Tribunal must, in every case, simply set aside the DWP decision once the negative determination is dealt with. It was appropriate in that case because Judge Mesher didn’t have the relevant evidence available to him but the same will not always be true. For instance the claimant may have provided psychiatric evidence in support of his contention that he had good reason not to attend which might demonstrate that he qualifies for an award.

     
stevenmcavoy
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I don’t think they can for reasons already said.

In the devolved system of disability benefits that we will have in Scotland will only see one member sitting in cases such as fta so there wont be any chance (from what I can see) of a decision being made on entitlement even when it would be clear there should be entitlement.

in the consultation we asked for it to be arranged so that the legal member heard the fta issue, then a 3 member panel would decide if they felt they could make an award on the day, if not it would be remitted back.

     
Peter Turville
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We have now received a Directions Notice in our case referred to in my posts above. The district judge has set aside the original tribunal’s decision. The reasons are emphatic and include:

‘The tribunal does not have jurisdiction to make a decision about how many points [the appellant] scores because the DWP itself has not made a decision on that. The DWP made a “proposed revised decision” of standard rate daily living. the proposed revised decision was not accepted by the appellant and so the DWP asked the tribunal “to consider the appeal on whther or not [appellant] is entitled to PIP and not against the negative determination.” Although the Tribunal purported to proceed on that basis they did not have the jurisdiction to do so. The appeal was and could only have been against the negative determination [failure to attend].’

IMHO the district judge’s analysis is correct and a tribunal presented with a ‘negative determination’ [failure to attend] appeal does not have the jurisdiction to go on and consider actual entitlement even if asked to do so by DWP by a ‘proposed revised decision’ or at the request of the claimant or their representative.

     
ClairemHodgson
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excellent result, peter - that has to be right.

     
stevenmcavoy
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Peter Turville - 11 January 2019 01:26 PM

We have now received a Directions Notice in our case referred to in my posts above. The district judge has set aside the original tribunal’s decision. The reasons are emphatic and include:

‘The tribunal does not have jurisdiction to make a decision about how many points [the appellant] scores because the DWP itself has not made a decision on that. The DWP made a “proposed revised decision” of standard rate daily living. the proposed revised decision was not accepted by the appellant and so the DWP asked the tribunal “to consider the appeal on whther or not [appellant] is entitled to PIP and not against the negative determination.” Although the Tribunal purported to proceed on that basis they did not have the jurisdiction to do so. The appeal was and could only have been against the negative determination [failure to attend].’

IMHO the district judge’s analysis is correct and a tribunal presented with a ‘negative determination’ [failure to attend] appeal does not have the jurisdiction to go on and consider actual entitlement even if asked to do so by DWP by a ‘proposed revised decision’ or at the request of the claimant or their representative.

none of this helped by the irritating behaviour of the dwp here who should just made the decision they proposed which the client could have challenged if they wanted to.

imagine the reaction we would get if we/our clients turned up at appeals and just asked them to administrate for us?