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Anytime review re; official error? Re; PIP MH v SSWP

Altered Chaos
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Hello you lovely people, I am hoping you can let me know if I am on the right track…
NB. I other than a direction notice from HMCTS and the first page of the MRN dated 31/01/20 I have no paperwork.

Timeline:
- 2017 made a claim for PIP. Date of decision 10/10/2017 no entitlement to PIP. MR lodged, decision reviewed but no change. Client did not appeal.

- 2019 made new claim for PIP. ERDL/SRM awarded (from 29/05/19 to 29/07/21). Date of decision 19/08/2019. SRM was awarded for 1e. “Cannot undertake any journey because it would cause overwhelming psychological distress to the claimant”

- DWP undertook a review of entitlement in light of MH v SSWP (effective from 09/03/17) and RJ v SSWP (effective from 09/02/16). No change to PIP. Date of decision 23/07/2019.  Client submitted an MR 31/01/2020 and then appealed 04/03/2020. Client’s basis for doing so was to seek PIP to be awarded back to the original PIP claim in 2017.

- Directions notice received:
a) The DWP is required to issue a Supplementary Submission addressing whether RJ and MH should properly be considered in this case, and if so why. The DWP is also invited to make representations addressing whether the appeal should be struck out. [The Judge states: “I note that in the case of the decision 10/10/17, no actual award was made at all; it is not a situation in which RJ and MH is being applied to an existing award to determine whether it should be revised to reflect the new case law.”]
b) Client was urged to seek immediate legal advice to help clarify the legal aspects of the appeal and whether a MR and/or appeal against the decision of 19/08/19 is to be sought before the absolute time bar becomes effective.

My thoughts:
Both earlier DWP decisions postdate both RJ and MH and therefore both cases should properly have been taken into consideration when the decisions of 10/10/17 and 19/09/19 were made.

The Client didn’t submit a MR/appeal against the 10/10/17 decision and is now out of time. I am thinking of advising that she request an anytime revision on the grounds of official error (there is good evidence that her difficulties that enabled the successful PIP award were present at the time of the original claim).

The 2nd PIP decision 19/08/19 is just a few days from the 13-month time limit (deadline 19/09/20). Cl has a few days to submit a late MR then appeal, although in my view the award of ERDL/SRM appears to be accurate.

The current appeal will be fruitless as the Tribunal cannot go back to 2017.

Am I missing anything? Your thoughts?

Helen Rogers
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I’m confused - your client has submitted an appeal against the decision on the trawl, so why is there an issue about meeting the deadline?
My thoughts are that the appeal can continue - to look at entitlement back to 2017, but for the parts which come under RJ and/or MH only.  So if you’re relying on MH v SSWP, you’d be looking to gain the mobility component only.
I wasn’t aware that the trawl was only to look at claims where some award was made.  (Doesn’t mean that it’s not true, but seems very unfair.)
But the fact remains that the DWP did look at this claim as part of the trawl and they did make a decision - which carries appeal rights.

Altered Chaos
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My understanding (although happy to be corrected) is that this ‘trawl’ relates to the specific PIP award of 2019 and as such the client’s appeal against this decision will only be of use as it pertains to that decision.
There has been no review decision of the earlier 2017 claim, had there been the client could have lodged MR/appeal accordingly.

Helen Rogers
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I was assuming that this paragraph:-

“- DWP undertook a review of entitlement in light of MH v SSWP (effective from 09/03/17) and RJ v SSWP (effective from 09/02/16). No change to PIP. Date of decision 23/07/2019.  Client submitted an MR 31/01/2020 and then appealed 04/03/2020. Client’s basis for doing so was to seek PIP to be awarded back to the original PIP claim in 2017.”

meant that there had been a trawl and it was now up to appeal stage.

I guess you need to get the appeal papers to be clear which decision is being appealed.

Altered Chaos
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Helen Rogers - 15 September 2020 09:42 AM

I was assuming that this paragraph:-

“- DWP undertook a review of entitlement in light of MH v SSWP (effective from 09/03/17) and RJ v SSWP (effective from 09/02/16). No change to PIP. Date of decision 23/07/2019.  Client submitted an MR 31/01/2020 and then appealed 04/03/2020. Client’s basis for doing so was to seek PIP to be awarded back to the original PIP claim in 2017.”

meant that there had been a trawl and it was now up to appeal stage.

I guess you need to get the appeal papers to be clear which decision is being appealed.

I agree (apologies for my poor wording) although based on the Judge’s comments/wording in the directions notice I believe the review was only in respect of the ‘live’ PIP claim.

HB Anorak
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I’m not sure that there is a right of appeal generated by a DWP “trawl” concluding that revision is not appropriate.  In November 2018 the UT decided that there was a right of appeal beyond 13 months where the claimant alleges an official error in the original decision (not entirely convincing IMO, but it’s a UT decision), but that was where the claimant had applied for revision and had the application rejected.  In “trawl” cases, all that has happened is DWP has, on its own initiative, had a think about revising an ancient decision and concluded ... nah, doesn’t fit.  That isn’t a new decision with fresh appeal rights.

I suspect it may be too late now to appeal the 2017 decision the official error issue, because there has already been an MR and the claimant chose not to appeal.  Does the 2018 case cited above in effect allow multiple bites of the cherry at any time, as long as the later application mentions official error?  It’s worth a try so I think I would probably agree with this extact from the OP:

The Client didn’t submit a MR/appeal against the 10/10/17 decision and is now out of time. I am thinking of advising that she request an anytime revision on the grounds of official error (there is good evidence that her difficulties that enabled the successful PIP award were present at the time of the original claim).

The 2nd PIP decision 19/08/19 is just a few days from the 13-month time limit (deadline 19/09/20). Cl has a few days to submit a late MR then appeal, although in my view the award of ERDL/SRM appears to be accurate.

As for the appeal that is currently with the Tribunal (against the inaction resulting from the trawl), I think it should be struck out because it is not an appeal against a decision, unless you argue that in substance it is an appeal against both decisions on the o/e ground even if it wasn’t precisely expressed as such.

 

Elliot Kent
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This response is based on your post as it is written - i.e. that there was a refusal of PIP in 2017, there has now been a trawl decision refusing to change that decision and your client is attempting to appeal the refusal to change the 2017 decision in connection with the trawl. In that context, the 2019 claim and award of PIP isn’t relevant. If that is not the case, then I am not really sure what the question is I’m afraid.

What this turns on is whether the actions which the DM took (or refused to take) as part of the review exercise create a right of appeal.

As you have identified, there is no issue in the case arising as a result of the anti-test case rules because the decision in the case post-dates MH and RJ.

Decisions can be revised or superseded. There is no impediment to a decision being revised just because it involved a refusal to award benefit, c.f. the Judge’s comment. It is however not possible for a decision refusing benefit to be superseded. So the only thing on the table when the review was conducted was revision.

Revision can be on “any grounds” or at “any time”. The time limit for DWP-instigated any grounds revision is one month, so that was off the table on 23/07/19. That leaves “any time” revision. What grounds are available - well the only one with any obvious relevance is official error under reg 9 D&A.

So the question which was in front of the DM was - should the decision refusing benefit be revised for official error and the answer was “no”.

An appeal is against the original decision. Where the decision is, in fact, revised the rights of appeal against the decision as revised are re-activated. A refusal to conduct an “any time” revision is not something which re-activates appeal rights. So the DWP refusal to conduct an any time revision for official error on its own initiative does not appear to be something capable of appeal.

The caveat to this is found in the case PH v SSWP (DLA) [2018] UKUT 404 (AAC). Here the Upper Tribunal held that a right of appeal could be preserved even having missed the 13 month absolute time limit for any grounds revision but only where the claimant has specifically sought revision on the basis of official error.

PH does not apply to your facts directly because the claimant did not instigate the process. However, your client did ask for a mandatory reconsideration of the DWP refusal to revise. Arguably, in doing so they were adopting and re-asserting the argument that the decision did involve an official error which would entail appeal rights on the same basis as in PH.

So I think that the argument against strike out is that an appeal right exists because your client’s request for reconsideration (on 31/01/20) of the refusal to revise adopted the argument the the decision involved official error because of the failure to consider MH. Consequently it is sufficient, for the reasons in PH to get over the mandatory reconsideration requirement in relation to the original 2017 decision and to re-activate the appeal rights in respect of that decision.

Helen Rogers
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Just for the record - a decision under the trawl is a new decision with exactly the same appeal rights as any other decision.  The wording on the decision letters is exactly the same.  I would post one here, but I don’t have the technology to do so while working from home.  I’ve done a few successful MRs on such decisions.  Not had to appeal any yet.

I’m not going to get into an argument.  Just wanted to let other advisers reading this know.

HB Anorak
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Just in case anyone was wondering, you are right: Elliot and I are sitting in the same room, we discuss the case and agree what we think about it, then have a race to see who can post first.  I get the free pint today.

Altered Chaos
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HB Anorak - 15 September 2020 10:59 AM

Just in case anyone was wondering, you are right: Elliot and I are sitting in the same room, we discuss the case and agree what we think about it, then have a race to see who can post first.  I get the free pint today.

In that case thank you both for giving me the one laugh I have had about this case, that landed on my desk late yesterday! Enjoy your pint :)