Are there grounds for an appeal here? State Pension and lump sum case.
Original State Pension (SP) claim from 21.11.14 following deferral and SP awarded from 06.01.15. On 05.03.15, client sought MR about non-payment of lump sum, refused on 10.03.15 so she appealed and this was heard on 22.06.15 and confirmed decision that lump sum not payable due to overlapping benefit rules. She’d been receiving small amount of Widow’s Pension (31p a week) which she says she wasn’t aware of and DWP had previously told her she should get lump sum (although this appears to be bad advice).
Sought financial redress for maladministration and this was looked at but refused. Went to AUK early in 2017 and they complained to ICE who made recommendations in April 2019 for DWP to reconsider decisions in Nov.2014 and Mar.2015 to establish whether client could be paid 12-months backdated SP.
DWP issued MRN in April 2019 in which they agreed to pay 12-months backdate as decisions in Nov.14 and Mar.15 were made in ignorance of a material fact. They then wrote again in May 2019 to revise that decision as their legal team said it was incorrect and she couldn’t be paid. She’s appealed, DWP have applied to have this struck out and Judge asking whether FtT have powers to hear the appeal.
I’m struggling to see a way out of this. There doesn’t appear to be any merit in looking to reopen FTT decision of 22.06.15 as it’s correct and also is final in terms of earlier decisions in Nov.14 and Mar.15 – as such, even if we were to try and argue that MR issued on 23.04.19 was legally valid, it states this was in relation to the decision of 10.03.15 i.e. the lump sum decision that was correct in law.
It doesn’t appear that client either made a claim for backdated SP nor has a decision ever been made to that effect – as this is the only legal remedy that could possibly work, I simply can’t see how we can try and argue for an appeal hearing about a decision that never was.
Any thoughts? It seems quite unfair but I’m can’t see any argument to make. My brain hurts.
Sorry posted a load of rubbish about backdating.
Anyone got any views on whether we can get this to appeal?[ Edited: 2 Oct 2019 at 10:32 am by Paul_Treloar_AgeUK ]
Ok, I’ll try to make this easier in the hope that someone might comment.
FtT heard the appeal about entitlement to lump sum in 2015 and found against the claimant.Therefore last operative decision on this question cannot be changed now. And indeed is correct in law.
However, I think there is a case that the question of whether the client’s original SP claim in 2014 can be backdated 12 months instead has never been considered - the way I see it, there are two quite speculative arguments as to why the latest appeal should be admitted and adjudicated upon. To be clear she didn’t request 12-months backdate but that’s because she thought she’d get a lump sum instead.
First, there was an official error on the original SP claim in 2014, whereby 12-month’s backdating was not considered then (because the client thought she should get a lump sum due to poor advice from DWP, for which there is evidence). So the latest MR and appeal is an official error anytime revision as per  UKUT 404 (AAC)
Or second, in carrying out the MR’s in April 2019 and May 2019 and the client then appealing these decisions, she is, in fact, appealing that the decision made in April 2019 to award her 12-months’ backdating is in fact correct and that is what she would like the current FtT to consider. Surely the DWP can’t simply pretend it hasn’t made the decisions that they clearly have?
Oh dear Paul, are you talking to yourself? This case is a bit of a mess isn’t it?
Are you saying that there were two decisions (or at least two decision letters) originally? A decision in November 2014 on the pension claim and a decision on the lump sum in 2015? And it was only the second which was appealed? I wonder if this is right and if they are actually different decisions.
My view on it really is that it sounds like the “MRN” is actually a supersession of the FtT decision (which replaces the original decision as per VW v LB Hackney  UKUT 277 (AAC) at  and so cannot be revised) and the further letter is a revision of that supersession to undo it as it was made without grounds.
The appeal then seeks to sustain the supersession. And it has three huge problems: (1) How is a ground of supersession is made out? (2) Why should the decision be superseded to give your client 12 months backdating which she never asked for? Is this even possible? and (3) In any event, how would a supersession in this matter be capable of taking retrospective effect - as it would need to - given s10(5) SSA and Reg 7 D&A?
I do think these are matters which the Tribunal is entitled to hear, so the case should not be struck out under Rule 8(2) but I think in these circumstances there would be a serious risk that the case would be struck out for a lack of prospects under Rule 8(3)(c).
The Hail Mary play here is to ask the DTJ to set aside the 2015 Tribunal’s decision on the basis that the ICE finding of maladministration amounts either to a procedural irregularity or error of law in that SSWP’s improper approach to the case and failure to consider backdating would have improperly diverted the Tribunal from considering the issue also. If the DTJ were prepared to do that, then it would be open to the SSWP to revise however she might wish or to have a hearing on issue (2).
Thanks Eliot. We had original decision on entitlement (or not) to lump sum and this is what went to appeal in 2015 and disallowed. Client then went for financial redress and refused and then complained to ICE who partially upheld complaint and recommended DWP pay 12-months’ arrears to recompense.
DWP sent MRN in April 2019 to say they were implementing decision then another MRN in May 2019 saying they weren’t as in-house legal team said they couldn’t due to FtT in 2015 already making decision.
Client appealed and accepted, now DWP asking for appeal to be struck out for same reasons.
We’ve drafted short submission saying question of backdating has never been decided as client didn’t ask when she claimed originally (as she expected to get lump sum) and that she has good cause for late request due to initial poor advice and maladministration, and therefore April 2019 decision should prevail (as well as invoking rule 2 of Tribunal Procedure rules).
Fingers crossed, we’ll see what happens.