Setting aside tribunal decision: potential overpayment?

This is a PIP case. No award by the DWP. On appeal, tribunal made an award for mobility but not for daily living activities. It is clear from the decision notice that the tribunal did not have our written submission and supporting medical and other evidence before it, even though it had been uploaded in good time and copied back as an Addition. There therefore seems to be a strong case for setting aside under rule 37 of the FtT (SEC) procedure rules, as procedural irregularity. It could also be the basis for an application for permission to appeal.

If the decision is set aside there will be a new hearing, presumably before a new panel. That tribunal could dismiss the appeal on both components. If that happens will any payments made as a result of the first tribunal’s decision become an overpayment?

If there isn’t a clear legal answer, what is the DWP’s practice in this situation, which I guess arises in appeals to the UT as well as setting-aside applications?

Once the FtT’s decision is set aside, it ceases to operate so you go back to the original decision so there would be no ongoing entitlement pending the new decision.

It’s unlikely that the DWP would put the FtT’s decision into effect before it was set aside. If they did, then the resulting payments would be an ‘overpayment’, to the extent that they exceeded her actual entitlement.

However such an overpayment wouldn’t be recoverable from the claimant as there is no failure to report or misrepresentation, which is still a requirement for recoverability in PIP.

Thank you, Elliot.