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UC or IS revision?

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Rebecca Lough
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dizzymare - 05 February 2020 12:17 PM
Rebecca Lough - 05 February 2020 11:14 AM

As an update, we were successful at tribunal, however the DWP has asked for a statement of reasons so they can consider going to Upper Tribunal. The client has since become a pensioner so it’s a bit a moot point for us… however prepare for it to be the hill the DWP would like to die on!

shocking! Im guessing that in the submission they were using similar argument? not possible to revise/make new claim? would be really interested to see the statement of reasons once it is done (redacted obviously) is it possible you might DM a copy? just interested to see arguments from DWP and how these were refuted. don’t worry if you cant do it. not a problem but it is reassuring to know that you were successful at appeal - well done (but so much unnecessary work)

Very happy to DM you with the redacted statement of reasons when I get it. Yes, they were making the same argument of it not being possible to revise.

dizzymare
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thank you

dizzymare
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Just thought I would update you on my case:

so, did a conference call today for the appeal (which surprised me as all the cases we have had thus far since the situation with the virus have been done on papers).

DWP had said in their submission that usually, the situation where IS was ended as appellant no longer met criteria (as a carer because PIP had ended) could be put right under regulation 6 18-21 of the claims and payment regs, but as claimant could no longer make a new claim for IS (due to UC), it was not possible to reinstate income support.

we had argued that we are not asking for a new claim, we are asking for a revision of the previous claim under regulation 3 (1) of the decisions and appeals regs, and reg 4 which allowed extension of time limit.

DWP had addressed this in their submission by stating regulation 3 (9) prohibited this as this was a change in circumstances; we argued a misreading of the regs, and also argued for reg 3 (5) (a) official error

The Judge today said she would consider our arguments but bought up the fact that there is no right of appeal against a refusal to revise.  I have not really considered this except in as much as it is used sometimes where challenges are made outside time limits, so it threw me a bit.  I was caught a bit off guard on this argument, as her focus was very much on the fact that DWP were correct (based on the facts at the time) to end entitlement to IS, and I guess that is usual process. She then raised the issue of regulation 6 (above) and fact that client should have claimed UC (which client knew, and for reasons known only to herself refused to do this) she didnt seem persuaded by my argument but did say she would consider everything and double check regs etc before reaching a decision.  I will let you know outcome.

HB Anorak
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Claiming UC would not have dealt with the mischief that affects cases like this.  There is nothing in Reg 26 of the 2013 C&P Regs that does the equivalent job to Reg 6(18) - (21A) in the 2013 Regs.  Unless the decision ending IS is revised or overturned on appeal, there is an unjustifiable gap in entitlement.

Jurisdiction is an issue because the right of appeal is against the decision you want revised, not the refusal to revise it.  The Tribunal cannot look at circumstances not obtaining down to the date on which the decision was made.  You want the Judge to accept that the reinstatement of the other person’s PIP retrospectively alters circumstances down to the date of the decision.

It is wholly unsatisfactory that DWP don’t understand the rules properly because this should have been a routine revision - it is difficult to think of a more compelling reason for extending the time limit to do a regular revision on the claimant’s application.  All that change of circumstance nonsense they are wittering on about just does not apply here.

[ Edited: 9 Apr 2020 at 01:59 pm by HB Anorak ]
dizzymare
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thank you. Ive now received the decision, and as expected, the Judge upheld the decision of DWP - though there is no explanation given on the decision. I shall of course be asking now for a statement of reasons and will keep this thread updated, as I can see other people have had similar issues.

Va1der
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I’m also finding a similar situation now. Struggling a bit to wrap my head around it, so apologies if this has already been covered.

I think my client’s circumstances are similar to some of the others, in that PIP for the cared for has just been reinstated and backdated to March 2019, following appeal this month. Client was claiming CA+IS when PIP was stopped.
I’m assuming CA can be backdated to March 2019 under reg. 6(33)(c) SI 1987/1968. (Technically making this a new claim, whether that is relevant - in effect there shouldn’t be any gap in either CA entitlement or actual receipt). 
However, this doesn’t cover IS, and the absolute deadline for an any grounds revision has passed.

Does the CA count as a qualifying benefit for an ‘anytime’ revision?

The client delayed claiming UC for a year, but has a running claim now, and has asked for the Carer Element to be included.

dizzymare
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still battling on with this. I have just received the statement of reasons from the appeal - quick summary of case:

my client did not claim UC whilst waiting for PIP appeal after her IS ended (her decision) but IS was refused following the successful PIP appeal and award of CA, leaving a considerable loss of income for the period in question. (we did advise her to claim UC on several occasions).

At M Recon, we asked for a revision of the decision to end IS using regulation 3 (1) (b) (iv) and reg 4. In the DWP submission, it is recorded that if IS entitlement had been reduced but not terminated, then the IS decision could be revised. As it was terminated, due to UC article 7 of WRA 2012 commencement order no 23, client is no longer able to make a new claim for IS. 

We argue that our client isnt trying to make a new claim, but is asking for a revision of the decision to terminate IS as the decision to end PIP has been set aside and the claim now runs as continuous.  DWP argue that they are unable to revise the decision under regulation 3 (1) of the D&A regulations because the “restoration is a relevant change of circumstances that has occurred since the decision to terminate IS took effect. Regulation 3 (9) (a) expressly forbids a revision in respect of such a change”

the statement of reasons refers to our argument only in as much as to say that “There is no right of appeal to a tribunal against a decision to revise or not to revise. ... It does mean that the appeal before me is whether or not the decision dated 15/08/2018 that the appellant is not entitled to income support after 19/09/2018 is correct”.

basically, the Judge is not considering if the DWP can revise using this regulation or not, and this is not addressed in her statement of reasons. The Judge is saying that the only avenue open was to make a new claim, and as this cannot be done (as above) then the only option was to claim UC. 

My question therefore is whether there has been an error in law? DWP have said the restoration is a change of circumstances therefore cannot revise; and Judge has said as DWP refused to revise, she cannot consider that part of the case (in a nut shell) so are they correct? would be incredibly grateful if anyone could give me any pointers on how to address this when trying for permission to appeal to UT (though looking at this thread there seems to be a few people in this situation - not sure if anyone has had any success as yet?

Elliot Kent
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When the decision was actually made to terminate your client’s IS, it was based on the premise that the cared-for person had no PIP entitlement. That was something which would have appeared to be correct at the time. The DWP argument against you was that the fact that the cared-for person’s appeal had subsequently been successful was not something which could be looked at. They have expressed this by reference to reg 3(9)(a) but I think its something which they could have better expressed in the context of an appeal by reference to s12(8)(b) SSA. Their argument is that the subsequently discovered PIP entitlement was a ‘circumstance not obtaining’ at the date of decision and therefore was something the Tribunal is required to ignore.

I think what the DWP argument (which the Judge seems to have adopted) fails to reflect, as at Peter’s posts #10 and #19, is that the ‘circumstances obtaining’ at the date of the decision are capable of including the PIP entitlement which was discovered subsequently, because the entitlement had retrospective legal effect covering the date of the decision.

dizzymare
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thank you - will use that argument and see where this goes

Bolton Adviser
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Hi - I have a similar case and I had the hearing yesterday.  My client was getting CA and IS as a carer for his wife who was getting PIP with a daily living component. On renewal his wife was awarded a mobility component only.  She asked for an MR and then got a decision to award a PIP daily living component.

My client’s CA and IS stopped when the daily living component of PIP stopped. They decided not to put in a claim for another means-tested benefit at that stage because they were confident that the daily living component would be reinstated after an MR decision, and that they would then be able to get CA and IS back.

When my client’s wife got a daily living component reinstated, they phoned the CA unit and the CA was reinstated and fully backdated. They also phoned IS and they were told they could no longer make a new claim for IS and had to claim UC. They did this and asked for backdating. The backdate was refused. The IS section also advised my client to ask for an MR of the decision to stop IS. They then came to get help from Welfare Rights.

I sent in a late request for a reconsideration of the IS decision as they have missed out on 6 months of IS. It was refused as the DWP stated he would have had to have made a fresh claim for IS to get it backdated. However he was prevented from doing this as he was now outside the gateway for claiming IS.  In the appeal, the DWP have used similar arguments as addressed in the previous threads in this discussion.  I have used similar arguments to you. 

I have not yet received the decision but will let you know what the outcome was.

dizzymare
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Thank you for sharing. Just heard this week that I have been granted permission to appeal to UT (Judge concedes possible that law was misinterpreted) so see where it goes. Hopefully, I might have a decision before your appeal and will let you know if there is anything of use.

Bolton Adviser
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Oh good, that sounds promising - good luck with that.

Stainsby
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This might help (adapted from one of my cases)

On 22 November 2018 Judge Poole QC held in PH and SM v SSWP Case No:  CSDLA/375/2016 and CSJSA/513/2016 that R(IS)15/04 was to an extent no longer good law following the introduction of “Mandatory Reconsideration” prior to appeal.  Judge Poole held at [13]

. In reaching this decision I have taken account of R (IS)15/04 (a three Commissioner decision) which found, among other things, that there was no right of appeal where a decision refusing to revise for official error was made more than 13 months after the date of the original decision (and similarly R(TC) 1/05 at paragraph 14).  The reason I have reached a different conclusion in official error cases is that the law has changed since those decisions were taken.  Regulations 31 and 32 of the 1999 Regulations, which were relied upon in reaching the conclusions in those cases, were repealed in 2008, and new provisions introducing the condition precedent of mandatory reconsideration were introduced in 2013 in the 1998 Act, the 1999 Regulations and the Tribunal Rules.  The effect of CJ and SG paragraph 90 is that in the new era of appeals being subject to a condition precedent of a mandatory reconsideration application, a refusal to revise on a timeous application for mandatory reconsideration made under the 1999 Regulations triggers the right to appeal to the tribunal.  Since Regulation 3(5) of the 1999 Regulations does not contain time limits, mandatory reconsideration applications based on official error made more than 13 months after the original decision are timeous. The new provisions in Rule 22 of the Tribunal Rules (discussed in the next section, and which are the eventual statutory successors of old Regulations 31 and 32) have the effect that the time period for bringing an appeal against an original decision after there has been a refusal to revise for official error commences on the date the claimant was sent notice of the result of mandatory reconsideration, and the claimant has one month from then to lodge the appeal, extendable up to a maximum of 13 months.  Further, the commentary to Volume III of Sweet and Maxwell’s Social Security Legislation 2018/19 paragraph 1.401 notes that no attempt was made in R(IS)15/04 to argue that Section 9(5) of the 1998 Act (concerning the time periods for appeals) should be read as including a refusal to revise (which would have the effect that the decision for the purpose of an appeal is regarded as made on the date of the refusal to revise, consistently with my interpretation of Rule 22 of the Tribunal Rules set out below).  If that argument was made now, the reasoning in CJ and SG tends to suggest it would be accepted. This is consistent with the new approach to the commencement of the limitation period in Rule 22 of the Tribunal Rules

[ Edited: 22 Jan 2021 at 12:43 pm by Stainsby ]
Bolton Adviser
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Hi - just got a decision notice and my appeal was refused.  I will be going for a written statement of reasons.

Stainsby
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I think the retrospective PIP award is something that the Tribunal was not precluded from taking into account.

The then Mr Commissioner (now Judge) Jacobs put it quite succinctly in R(DLA2&3/01 at [9]

9. Section 33(7) limits the tribunal’s jurisdiction to the claimant’s entitlement. In the case of a claim for a disability living allowance, the jurisdiction is limited to the inclusive period from the date of claim to the date of the decision under appeal. The effect is also to limit the evidence that is relevant to the appeal. The only evidence that is relevant is evidence that relates to the period over which the tribunal has jurisdiction. However, it is the time to which the evidence relates that is significant, not the date when the evidence was written or given. It does not limit the tribunal to the evidence that was before the officer who made the decision. It does not limit the tribunal to evidence that was in existence at that date. If evidence is written or given after the date of the decision under appeal, the tribunal must determine the time to which it relates. If it relates to the relevant period, it is admissible. If it relates to a later time, it is not admissible

Judge Jacobs reiterated this in the housing benefit context in CH/3935/2007 at [14]

14. I analysed an equivalent provision (section 12(8)(b) of the Social Security Act 1998) in R(DLA) 2 and 3/01 and decided that the key consideration was the circumstances that were obtaining at the time of the decision under appeal. It does not matter when the evidence of those circumstances came into existence or became available. What matters is the date to which it relates. If it relates or can be related to the time of the decision, it is admissible.

This undermines the DWP’s argument somewhat

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