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DLA renewal and supersession appeals
I would appreciate some help with the following case. This is the first time I have come across this situation.
Client was in receipt of DLA - HRM and MRC . On renewal, award was downgraded to HRM and LRC and awarded indefinitely. (no change in circumstances since previous award )
The decision was appealed ( it was contended that the mobility component was not in dispute. Client was still warned about risks of her award but on the available evidence , I personally felt that it would not be disturbed because of her significant problems )
Before she attended the tribunal , she was warned again and advised if tribunal gives warning , to request an adjournment. Unfortunately, due to some misunderstanding, client went ahead with hearing thinking that they were only considering the care component. The award of HRM was removed and she remained with LRC indefinitely.
Client was obviously very upset and subsequently, made a supersession claim (no change of circumstance) and provided more evidence to support her HRM . The decision was unchanged and remained entitled to LRC ( the same effect as the Tribunal’s decision )
An application for permission to appeal was made against the tribunal’s decision and has now been granted by the Upper Tribunal Judge . He has given directions to parties to indicate if there is any objection for the First Tier Tribunal’s decision to be set aside.
I understand that if the Tribunal’s decision is set aside , the renewal decision of HRM and LRC will stand . But, I am unsure of how to proceed with the appeal she has made against the supersession claim .
So, my question is, if client decides to remain with award of HRM and LRC (indefinitely) and the the supersession appeal is withdrawn, would this restrict the award to date of supersession claim or contninue indefinitely ?
... my question is, if client decides to remain with award of HRM and LRC (indefinitely) and the the supersession appeal is withdrawn, would this restrict the award to date of supersession claim or contninue indefinitely ?
The “supersession” request is not a claim, so the existing award does not come to a halt there. There is very old case law, probably still valid, that even if a “claim” were made in the middle of an exisiting award, it is only treated as a request for review (as it was then).
I would suggest that the decision made by the DWP on her application for supersession was that there were no grounds to supersede the tribunal’s decision - your posting says as much - so it really cannot disturb anything that happens now.
I’m not so sure. Section 17 of the Social Security Act 1998is as follows:
“Subject to the provisions of this Chapter, any decision made in accordance with the foregoing provisions of this Chapter shall be final; and subject to the provisions of any regulations under section 11 above, any decision made in accordance with those regulations shall be final.”
The phrase “any decision made in accordance with the foregoing provisions of this Chapter” being crucial. That would, therefore, include section 10 decisions, which are supersession decisions. I would continue with the supersession decision appeal and argue, as suggested, that the Department cannot make out a supersession ground.
I would have to say there is a danger of over complicating the situation.
A refusal to supersede a decsion that is itself set aside is, in practical terms, a nullity. An appeal against that decision seems to me to be fairly pointless. Section 17 only really means that the decision to refuse to supersede is final for the purposes it was made, unless it can legally be altered in some way.
I took the posting to mean that the client will try to withdraw the renewal claim appeal after the FTT decision is set aside, thereby leaving an indefinite award of HRMC/LRCC. The worry was that the “supersession” decision somehow would stop the payment of the re-instated HRMC/LRCC award beyond the point of the refusal to supersede.
If withdrawal of the appeal is agreed (and that is not a certainty), I can’t see the DWP limiting the award in the way it is feared may happen. Similarly, if the withdrawal is not agreed, I do not see the tribunal bound to limit the award it makes to a point that it was decided that an earlier decision, which no longer exists, could not be superseded. I would presume the tribunal would listen to the two appeals together anyway.
If the client goes to tribunal with an appeal against a refusal to supersede a decison that no longer exists, and did not have grounds for supersession anyway, I think that amounts to a considerable waste of time and effort all round.
The tribunal’s decision has not yet been set aside so the Department’s supersession decision (supersession at the same rate, as opposed to a refusal to supersede) still has legal force. Permission to appeal the tribunal’s has been given but the decision has yet to be set aside and might not be. So to withdraw it prematurely would not be wise.
Thank you both for your replies.
Nevip - I was not considering to withdraw the appeal until I had the final decision from the Upper Tribunal. I was just thinking what would be the best way forward for my client to get back her HRM and avoid another tribunal hearing ( (had a bad experience with last tribunal )
Soviet leader - your second posting is exactly what I meant and thought but I needed some clarity, which you have given and hope is correct. Once, the final decision is received , I will be considering to withdraw both appeals and consequently, client to remain with indefinite award of HRM and LRC.
So, my question is, if client decides to remain with award of HRM and LRC (indefinitely) and the the supersession appeal is withdrawn, would this restrict the award to date of supersession claim or contninue indefinitely ?
In theory no because a reasonable DM would revise the supersession decision (he can do so at any time before its appeal is heard). But too often the DM is a party, contrary to theory, that is utterly adverse to the interests of the claimant. There is a big risk, therefore, that the DM will use the supersession decision awarding LRC as final which, as Nevip says, would mean the reinstated HRM would not continue beyond the date of the supersession decision. I would not withdraw that appeal yet.
There is a Commissioner’s decision (sorry I’m busy so can’t search for it) on similar facts where the commissioner not only re-instated the earlier award but lapsed the later one, ie the supersession decision here. But I recall in that case that the SSWP did not object to that approach. You currently await the SSWP response to the UT’s directions. I’d write to the UT asking it to invite the SSWP’s view on the UT lapsing the later award.
Thanks - I will wait and write to the UT .
Hi there , just letting you all know that PTA was finally granted by UT judge. FTT decision has been set aside and referred back to a new tribunal . This means that appellant’s award of HRM and LRC stands.
Tom H – I wrote to the UT as you instructed in your last post .
Unfortunately, there was no view or response from the secretary of state but the UT Judge did address the matter .
He said that it would be wrong for him to express a decided view one way or the other without seeing the papers (ie supersession appeal ) and further arguments.
He stated that this is a separate issue in which he has no jurisdiction. However, he feels that it is an important issue for the appellant and directed the secretary of state’s representative to provide a supplementary submission dealing with the subsequent adjudication history and to be sent within 1 month of decision.
He mentioned that there are two possible views. One view is that as the FTT decision has been set aside, that decision is in effect a nullity. On that basis, it is arguable that any subsequent decisions should also be treated as having no effect and revised accordingly , which means that the appellant’s award of HRM and LRC simply be re-instated and be unlimited in time.
The other view is that her award is now re- instated but would only have effect until next valid decision. Might be arguable that the refusal to supersede was lawful at time as it was based on FTT decision which at time was valid. Therefore, low care would come into effect from date of refusal to supersede.
Anyway , the respondent has failed to comply with the UT’s direction within the time limit . This is despite sending a reminder letter. I have now received hearing confirmation that both appeals will be heard together in September .
I am not ready to proceed with hearing until they have responded. I contacted the Tribunal Service and verbally requested if they can chase this up . Awaiting a call back .
If no success , will request in writing to issue a direction under Rule 7 (2) (b) of the Tribunal Procedure Rules 2008 .
If they fail again, what next step should I take ? Attend hearing and request adjournment or something else?
Tahra
Unfortunately, did not receive any response to my last post. Anyway, just to let you know I attended the hearing this morning , initially prepared to request an adjournment on grounds that the respondent had still not provided the response as directed by UT. This is despite a request for a direction ,which failed due to an administrative delay. But, to my surprise the representing officer from DWP had also turned up .
However, I argued the case and the respondent agreed that the decision should be treated as nullity, meaning that client remains with her indefinite award of HRM and LRC .Consequently, both appeals were withdrawn .