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LEAP review out of time MR
My client has had a litter , dated 2022, refusing to look at her PIP under the LEAP as she asked for the review in 2022 , she tells me she never had the original 2018 letters at the time. DWP say she is out of time for an MR.
Since 2018 her PIP has been changed [ from 2021 ] to include the high mobility on anxiety grounds but not as a result of the LEAP,
Is it possible to get the 2018 decision looked at again. DWP have sent my client a copy of the 2018 decision and interestingly it does not mention a right of MR or appeal, it just says only contact us if you disagree with the decision but no time limit mentioned !!!
It all depends.
There are two immediate issues:
The first question is, who made the decision? If it is a Tribunal, then it can’t be reconsidered in any way by the DWP at all.
The second question is, when exactly was the decision made? The LEAP review is concerned with errors of law which were uncovered by cases decided in 2016 and 2017. All of the issues with the PIP Amendment Regulations and the MH Court of Appeal case were being wrapped up in late 2017/early 2018. By June 2018, the guidance had all been updated to reflect the decisions in MH and RJ and the LEAP review had begun. Theoretically at least, decisions of around this age should not have been affected by errors of law arising from ignorance of either case.. I am not sure exactly what the ‘cut-off’ date is for the LEAP review, but it may affect your client.
Insofar as your client has asked for her case to be reviewed under LEAP and has been told that she has no appeal rights against the refusal;
(1) The LEAP review is not a legally recognised process in that there is no legislative right specifically to have your case ‘reviewed’.
(2) Your client would be entitled to ask for an ‘any time revision’ of the DWP decision on her award. This would need to be on one of the established grounds, for example official error by a failure to account for MH or RJ (or a failure to account for whatever other rule of law might be raised).
(3) There has conventionally been seen to be no right of appeal arising from a refusal to conduct an any time revision. The challenge is only by judicial review.
(4) However, the case of PH & SM v SSWP [2018] UKUT 404 (AAC) is authority that an appeal can be launched in respect of a refusal to conduct an any time revision because such a request is capable of complying with ‘mandatory reconsideration’ rules. However, such an appeal is only possible if your client has clearly articulated the grounds on which they are seeking any time revision.
(5) It is not obvious that your client’s request simply to have her case looked at under LEAP would be sufficient. It would however be possible for her to make a new request clearly articulating the error of law alleged in the 2018 decision. If the DWP refused that request, there would be a right of appeal against the 2018 decision limited to the question of whether it was in error of law for the reasons put forward.
Thank you Elliot, the 2018 DWP decision was dated 24 09 2018, my client asked for an MR of that decision in April 2022, refused on 05 05 2022
[ Edited: 18 May 2022 at 12:10 pm by Diogenes ]The 2018 letter says that the DWP used the WCA assessment information to make their decision the PIP mobility element !!!
I am not sure exactly what the ‘cut-off’ date is for the LEAP review, but it may affect your client.
I am told that it is 26/06/18 and any decision on or after that date won’t be considered.
does this mean that my client has lost the opportunity to use the LEAP as her decision was after the cut off date, ???
does this mean that my client has lost the opportunity to use the LEAP as her decision was after the cut off date, ???
The DWP will not consider decisions made after that date under LEAP because it is the date at which they consider that all of their guidance had been brought up to date to reflect MH and RJ and that they therefore ought to have been applying the law correctly.
However, as per my earlier post, nothing about this prevents your client from seeking any time revision if she can articulate an error of law in the particular decision in her case, whether that is to do with MH/RJ or otherwise.
Thank you Elliot, That’s clear now.