Bereavement Support Payment RO

I have a client who has been diagnosed with terminal cancer

Her partner died on 4 Nov 2022

She claimed bereavement support payment and claim was refused.  She then applied for MR and received a phone call to say that the decision would not be changed and she should re- apply after the RO came into force

She appealed and Directions were issued by the Tribunal

I got a call yesterday and was told that a formal MR notice would be issued and that my client MUST MAKE A NEW CLAIM and that the appeal would be opposed.

We made an online claim yesterday, but my argument is that a new claim should not be needed and the decision to refuse the claim can simply be revised now that the RO order is in force (As it is retrospective.)

I think that Reilly v Secretary of State for Work and Pensions [2016] EWCA Civ 413; [2017] Q.B. 257; [2017] AACR 14 and MW v SSWP (IS) [2022] UKUT 59 (AAC) are authorities that support my argument or have I missed something?

I could not find anything in the RO which requires a new claim in this situation

I suppose it may not matter as it may be that the new claim is resolved more quickly than the appeal anyway, but I do think that you are right.

The DM may be thinking “how could an appeal be allowed when the decision was right when we took it?” but the tribunal is surely required to deal with the case on the basis of the law as at the decision date. The RO expressly has retrospective effect - see Art 1(3) and the explanatory notes - so bears on the law at the decision date and I can’t see why that should be ignored.

As you note, this was one of the issues the CoA dealt with in Reilly 2. The FtT was required to give effect to the retrospective legislation to the claimant’s detriment and none of the creative arguments the UT had used to reach a contrary conclusion worked. If that is the case for retrospective legislation which is to the claimant’s detriment then, and to introduce some gratuitous Latin, the same applies a fortiori where retrospective legislation is specifically intended to be for the benefit of claimants such as your client.