Tribunals’ authority to reduce awards

It is well-known that appeal tribunals can remove or reduce awards as well as make or increase them, but does that apply if an award in payment was made after the date of the decision being considered by the tribunal? My client appealed against a decision to disallow a DLA claim he made in July 2010. The hearing is due in August. In November 2010 he made a second claim and was awarded the high rate of both components indefinitely. The tribunal will not have access to the evidence used in making the second decision, but I think my client may present to the tribunal as someone who does not meet the criteria for the award he now receives. If they are so minded, can the tribunal interfere with the award? I want to make sure my client is fully acquainted with the risks before he proceeds but I’m not sure what the risks are.

My understanding is that they will look at his condition from the point at which his original claim was refused not his current situation. If I was you I would make sure you differentiate clearly between the two.

This being the case I imagine they would not interfere with his ongoing entitlement.

I agree in theory it shouldnt, but on IB/ESA appeal cases using a DLA award to prove a disability can be a double edged sword, because the appeal judge can put on the decision a direction the the award of DLA be queried, they could do the same with the current DLA award. Also there may also be a presenting officer there.

I agree. With an indefinite award in payment it may be worth client cutting his/her losses and leaving well alone.

Has there been a worsening of your client’s health? Or a new condition giving rise to additional care/mob needs between the two cases?
If yes, then the two decisions can be differentiated. If no, then request copies of all evidence upon which the DLA department awarded the new claim and utilise this at appeal hearing.

I don’t think the Tribunal should be interfering with the later decision. Although you could use the evidence from the later decision to help with the appeal if it was relevant to the decision under appeal

CSDLA/237/2003:

11. The second DM decision was not under appeal to the tribunal.  Section 12(8)(b) has to be applied in conformity with s.17(1) and with the basic rule that there cannot be overlapping decisions in respect of the same benefit.  If this were not the case, the current benefit position could be chaotic and the results would certainly not always benefit the claimant.  In this case, the appellant might have been awarded higher rate mobility component and highest rate care component by the second DM for the period from 18 July 2002.  It would be invidious if section 12(8)(b) permitted a tribunal to interfere with that decision and to extend its own award, of lowest rate care component only, into the period covered by the second award.

Although the tribunal should not vary the later decision (nor direct a reconsideration!) beware if there is a presenting officer. They will have access to evidence that if negative could be used by them to revise or supersede.

Regulation 3(5A) of The Social Security and Child Support (Decision and Appeals) Regulations 1999 allows Dept. to revise later decision following appeal outcome if appeal decision indicates later decision should have been made differently.