Search rightsnet
Search options

Where

Benefit

Jurisdiction

Jurisdiction

From

to

Forum Home  →  Discussion  →  Decision making and appeals  →  Thread

LEAP decision, urgent help please

Diogenes
forum member

welfare benefits, citizens advice, sherwood & newark

Send message

Total Posts: 117

Joined: 8 June 2021

I have just been handed a Tribunal decision which is a real nightmare. The Tribunal has adjourned as it want submissions from DWP and the Rep as to whether it [ the Tribunal ] has Jurisdiction to hear the case and if so what powers it has . Its a PIP case , the client was refused in 2017 but following a tortuous set of decisions it came before The Tribunal this week.
What’s a LEAP all about ? Tribunal want to know if it can revise a decision outside the 13 months limit what activities sit can consider, whether the respondent can supersede a nil PIP award, and lots more
clearly it has confused The Tribunal, is there anyone out there who is able to summaries what’s to be done , oh and they want the response bdq

Elliot Kent
forum member

Shelter

Send message

Total Posts: 2501

Joined: 14 July 2014

This is a complex issue which I have addressed at length before on these forums, but here are the key technical points

1) The “LEAP” review usually refers to the process through which the DWP re-assessed all its old PIP decisions in view of the decisions of the Upper Tribunal in MH v SSWP [2018] AACR 12 on 28 November 2016 and RJ v SSWP [2017] AACR 32 on 9 March 2017. These decisions showed that the DWP approach to addressing, respectively, mental health issues in respect of mobility activity 1 and the issue of “safety”, had been wrong in law. The point of the review, broadly, was to correct for these errors.

2) When the review identified a decision which would have been different had MH or RJ been followed, the DM had to consider whether the decision could be revised or superseded in order to give effect to the correct application of the law. Whether revision or supersession is appropriate depends on whether the decision in the individual claimants case was made before or after the MH or RJ decision as relevant.

3) In a case where the decision in the claimants case was made before the UT’s decision in the relevant case, the DM should supersede the award to include the higher rate of entitlement with effect from the date of the UT decision - i.e. either 28/11/16 or 09/03/17. In a case where the decision in the claimant’s case was made after the UT decision, the DM should revise the award for official error.

4) The reason for the difference in treatment is the anti-test case rule. A decision which fails to comply with MH or RJ is in error of law. If the UT decision had already been issued at the date of the decision in the claimant’s case, then clearly the SSWP must comply with it - if they didn’t, then the effect of reg 9(a) of the D&A Regulations is that the decision can be revised for official error.

However Reg 2 provides that “official error” “excludes any error of law which is shown to have been such by a subsequent decision of the Upper Tribunal[...]”. Therefore where the decision was made before MH or RJ, revision is not available and instead we fall back on reg 24 D&A which permits supersession on the grounds of error of law. Reg 35(5) D&A then sets the effective date of that decision as the date of the UT’s decision.

5) A right of appeal arises from a refusal to revise a decision on the grounds of official error - see PH & SM v SSWP [2019] AACR 14 - or from a refusal to supersede - Wood v SSWP [2003] EWCA Civ 53. There is possibly a subsidiary point because the LEAP review has not occurred at the claimant’s request, but rather has occurred on the SSWP’s own initiative - however it seems strongly arguable that when the claimant has received a letter saying their case has been looked at through the LEAP review and not changed and they are then invited to and do request ‘mandatory reconsideration’ of that position, in doing so they are adopting the argument that the decision ought to have been revised or superseded due to non-compliance with MH or RJ.

6) On an appeal arising in this way, the Tribunal is limited to considering whether the original decision should have been changed by reference to MH or RJ. It cannot consider unrelated complaints about the decision because it is not exercising its full de novo jurisdiction. You could not for example seek to take a point about the person needing aids and appliances to dress themselves.

Diogenes
forum member

welfare benefits, citizens advice, sherwood & newark

Send message

Total Posts: 117

Joined: 8 June 2021

Thank you Elliot, I may try to track down your earlier posts on the subject. Why is it do you think that the Tribunal cannot decide if they have Jurisdiction on the matter and what their powers are, why do they need to ask the DWP and the Rep to explain this to them. The Direction’s are numerous and it transpires the case was before another Tribunal in 2020 who adjourned it too in order to investigate the LEAP . It has taken a year to get back to a Tribunal who have once again adjourned for similar reasons to the last adjournment. !!!.

Elliot Kent
forum member

Shelter

Send message

Total Posts: 2501

Joined: 14 July 2014

I’m not really convinced that it is unreasonable for the FtT to be asking the parties to express a view on a complex and potentially contentious legal issue such as this, particularly where one outcome is that your client’s appeal is struck out for want of jurisdiction. Certainly what I have been less impressed by is the DWP appeal responses in these cases which do little to explain the basis of the Tribunal’s jurisdiction or role in these cases.

Diogenes
forum member

welfare benefits, citizens advice, sherwood & newark

Send message

Total Posts: 117

Joined: 8 June 2021

Elliot, thanks for that, in this case the DWP after the last Tribunal in 2020 did a vey good response to the Tribunal and explained in detail the history, The Tribunal had clearly not understood the decision under appeal and the DWP had to reiterate a number of times it is the 2017 decision that is under appeal.
It turns out my client was refused in 2017 on a transfer from DLA but looks like he did not pursue an appeal at the time Am I correct in thinking what has happened is the DWP has done a LEAP and it is that LEAP that my client has challenged. He was moved from DLA to PIP and got zero points but our case record shows he decided not to appeal that refusal, and he has not had any PIP payments since his DLA stopped in 2017 !!!

Elliot Kent
forum member

Shelter

Send message

Total Posts: 2501

Joined: 14 July 2014

If he was refused PIP in 2017 after the MH decision in 2016 and (probably) after the RJ decision, and it is only as a result of the LEAP review that his case has gotten to the FtT at all, then all the FtT can look at is whether the decision ought to be revised for official error as a result of a failure to account for those decisions in the original 2017 decision.

i.e. would he have scored points under mobility descriptors 1c, d of f as a result of mental health issues or would he have scored points due to a need for supervision in order to safely conduct activities if the law had been correctly applied to his case in 2017.

Diogenes
forum member

welfare benefits, citizens advice, sherwood & newark

Send message

Total Posts: 117

Joined: 8 June 2021

many thanks Elliot, its coming together in my mind now. So I have to respond to the Tribunal Direction and advise them of what I believe they can do. And try and find out if my client was likely to have succeeded on the facts. I wonder how many more LEAPs there are waiting to leap out of the woodwork !!!

Diogenes
forum member

welfare benefits, citizens advice, sherwood & newark

Send message

Total Posts: 117

Joined: 8 June 2021

Just one more point if anyone can help. My cl had a decision dated 29 03 2017 which is now before The Tribunal after a LEAP decision.    HOWEVER in 2019 he made a fresh claim for PIP which was refused and he asked for an MR of that decision, don’t know if he appealed it or not. but I think not
The Tribunal has been confused as to whether it was the 2017 or 2019 MR that was the subject of the appeal. before them>>>>> DWP have now confirmed it is the 2017 decision that is before The Tribunal.
BUT, another point occurs to me. will The Tribunal be restricted by the 2019 refusal in their decision making on the 2017 appeal
, I am thinking The Tribunal may only be able to go up to the date of the 2019 refusal if they do allow an award on the earlier [ 2017 ]  claim, or maybe they will be only able to go back to the2019 decision, any ideas very welcome

The dates and decision under appeal are all known facts its just the question of how the 2019 refusal will restrict The Tribunal that I am worried about

[ Edited: 1 Nov 2021 at 10:02 am by Diogenes ]
Elliot Kent
forum member

Shelter

Send message

Total Posts: 2501

Joined: 14 July 2014

If only the 2017 decision is under appeal then strictly the 2019 decision isn’t subject to the Tribunal’s jurisdiction and any award would stop at that point. However as the only way to win the case is to demonstrate that the 2017 decision involved official error, it might be possible to request any time revision of that decision also if he wins.

Diogenes
forum member

welfare benefits, citizens advice, sherwood & newark

Send message

Total Posts: 117

Joined: 8 June 2021

Thank you Elliot, what the DWP say in their response to The Tribunal is interesting. they say that   ” at the time the decision was made on 29 03 2017   MH and RJ were not part of the decision making process on this benefit, This only came into effect from 25 /06/2018 “

is that good ???

Elliot Kent
forum member

Shelter

Send message

Total Posts: 2501

Joined: 14 July 2014

That is just DWP waffle. There is a whole saga of the history following the MH case in particular which you can read elsewhere if you are interested which explains why it took so long for them to pay any attention to it. It doesn’t make any difference to your case.

You need to take instructions from your client, figure out if he even has a viable argument for official error and go back to the FtT explaining what you are asking them to do, why you say they can do it and why it is appropriate in the case.

 

Diogenes
forum member

welfare benefits, citizens advice, sherwood & newark

Send message

Total Posts: 117

Joined: 8 June 2021

Thank you Elliot,

[ Edited: 10 Nov 2021 at 02:01 pm by Diogenes ]
Diogenes
forum member

welfare benefits, citizens advice, sherwood & newark

Send message

Total Posts: 117

Joined: 8 June 2021

Thank you Elliot for your most useful comments on LEAP. I was reading previous posts and I noticed that in one you commented that in some case such as where PIP has been flat out refused there is nothing at all to be done e the LEAP outcome. I am about to write to the Tribunal on my case where he was flat out refused any PIP is this relevant to my appeal or am I conflating 2 different scenario or can I still argue error of law as you suggested in this post.

Elliot Kent
forum member

Shelter

Send message

Total Posts: 2501

Joined: 14 July 2014

A decision to refuse PIP outright cannot be superseded, but it can still be revised. As your case is to do with revision rather than supersession (i.e. because the decision in your client’s case was made after the relevant determinations so the anti-test case rules don’t bite), this is not an issue for you.

Diogenes
forum member

welfare benefits, citizens advice, sherwood & newark

Send message

Total Posts: 117

Joined: 8 June 2021

Phew