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Refusal of anytime revision
Hello all
Your thoughts on this case appreciated…......
We have a case where a blind client had their DLA award reduced in 2007 following renewal to LRC/LRM from MRC/LRM and it wasn’t queried at the time by the family until they sought advice from us in 2010 for a further renewal and we queried the reduction in award.
After numerous attempts we finally managed to get a copy of the 2007 claim form but no other evidence and DWP insist they never saw the BD8 certificate issued in 2004 confirming SVI.
DWP are now refusing to consider an anytime revision on the grounds that if they did ‘it would give the client more money and they don’t have to do that as it isn’t an error in law’.
We have consistently tried to argue the original DM was wrong in 2007 but now are at the proverbial brick wall….........all advice appreciated.
Thanks in advance!
hi liz -
i think dwp can only do anytime revision where outcome advantageous to client where there’s offical error - para 5(a) of reg 3 of decisions and appeals regulations.
so i think you’ll have to try and establish official error and that is quite a high bar to jump over.
you will have to show that 2007 decision was so unreasonable on facts of case as to amount to official error.
i was wondering about award prior to decision in 2007 - what basis was it given on? dwp says that didn’t get BD8 certificate issued in 2004 but what does client say? - was it obtained for earlier dla claim for example?
also - did what was said in 2007 claim form very clearly support middle or higher rate care? - and what does any supportive evidence in claim form say- ie from GP or social worker etc?
if decision not unreasonable given information in claim form will be hard to challenge.
what does anyone else think?
I agree with Ros and I would be tempted to put in a request for copies of ALL paperwork held in relation to your client’s claims and a copy of all computer screen prints held.
Hello,
I hope I’ve fully understood your post.
If, as you say, the
“DWP insist they never saw the BD8 certificate issued in 2004 confirming SVI”,
would that not mean that they have admitted to being ingorant of a very material fact? This then would provide authority and grounds for an any time revision. Should the DWP then choose not to revise on ignorance of material fact, that alone would provide grounds for appeal.
I hope I haven’t missed anything or misunderstood.
Thank you.
Patrick.
Hello,
I hope I’ve fully understood your post.
If, as you say, the
“DWP insist they never saw the BD8 certificate issued in 2004 confirming SVI”,
would that not mean that they have admitted to being ingorant of a very material fact? This then would provide authority and grounds for an any time revision. Should the DWP then choose not to revise on ignorance of material fact, that alone would provide grounds for appeal.
I hope I haven’t missed anything or misunderstood.
Thank you.
Patrick.
This doesn’t apply where the ignorance of a material fact would lead to an increase in benefit, only where the decsiion was more advantageous than it would have been but for the ignorance of (or mistake to) a material.
Otherwise you are left with supersession, which will only have efffect from the date of application
Of course, you can now get HR Mob for SVI if the person fits the criteria laid down in the regs. A BD8 would probably suffice.
Thanks for all input - the DWP have continued to revise and clear any appeal is outside the absolute time limit as the original decision goes back to 2008.
Any thoughts on how we can continue to ask the Tribunal not to strike out appeal even though we are outside the time limit?
Did the client indicate in any way that, although SVI, they were coping? As I often explain to my clients “it’s not what your condition is, it’s how you are affected that counts.” Did they have any other evidence they used? When you read the 2007 renewal would you have awarded middle rate?
Sorry, lots of question.
Renewal file exceptionally brief, still not had printouts or any other clerical documents (likely destroyed) but available content in form supports MRC - visual impairment proven 2004 by BD8 and client did require ongoing support.
Sorry also meant to say client cannot recall whatever other evidence was used at renewal and as already said rest of file appears not to exist!
Any suggestions on how to get Tribunal service not to throw out case?
Hello again
This case continues to go on and on…...
We have successfully argued for a hearing date now (judge has tried to throw it out) and informed DWP and Tribunal Service that actually in our opinion DWP DM Guidance 04330 should apply on this one as the content of the supersession form provided in 2007 clearly (in our humble opinion) supports MRC not LRC. That particularly paragraph helpfully gives an example to DWP of where the care component can be increased in the claimants favour if a mistake has been made in dealing with the claim.
Finally we have received DWP paperwork/ ‘all’ records….....allegedly….we have (and I kid you not) 5 inches of computer printouts which appear to contain one page for each payment ever made to our client, copy of supersession form in 2007, a typed chronology but intriguingly no copes of any notepad entries relating to said chronology…......
No ATOS input, no medical evidence on file….......yet decision still being maintained as not being ‘wholly unreasonable’ - DWP definition of this being as follows - ‘so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it’. They acknowledge that a request for reconsideration was made following the 2007 decision but again no written record of it. Thecare component was only paid outside term-time which I suspect played a part in the client not realising the true financial impact of the decison and again we have no copies of any decision notification letters.
Now forgive me but as an ex-DWP person I am still of the opinion that the 2007 supersession decision was not a logical outcome, the content of the DLA434 supports MRC, there is no evidence of original DM’s conclusion’s or discussions about the case and whilst notepad entries can be deleted, as an archive record they should still exist somewhere…...the gaps in this case are annoying to say the least.
I am now just now wary of ending up with the wrong judge and case disappearing down the inevitable black hole….....
You stated in your first post that the DLA was reduced on renewal but in your last post you state the client completed a supersession claim form (DLA434). I don’t suppose it matters really because I don’t think, sorry to say, that the tribunal has jurisdiction to hear your appeal. Even if the 2007 decision was the most irrational decision in the history of irrational decisions, the question is how you get redress for that error. R(IS)15/04 holds that where the DM refuses to revise (for official error) a decision made more than 13 months ago a tribunal has no jurisdiction to hear an appeal against that refusal to revise. That’s because the refusal to revise does not extend the time limit for appealing the original decision, here 2007, that is sought to be revised. Your options would, as others have said, be judicial review for which there are time limits or compensation.
I agree that a tribunal won’t have jurisdiction to consider an appeal against a refusal to revise on any time official error grounds, and it’s also true that the earlier decision awarding low care is outside 13 month absolute appeal deadline
However, there might be a way to get the earlier period before a tribunal, but it depends on a lot of circumstances coming together and evidence being available in the appeal papers…
I used to do a lot of appeals at RNIB where circumstances were very similar
- visually impaired client getting mid care & low mob
- renewal claim some years ago, care reduced (irrationally, or at least for no apparent good reason) to low
- client visits RNIB with request to get back up to middle, not at that point thinking about backdate
In general I would put in for to mid care, from date of request for supersession with no mention at that time of possibility of any backdate.
I would tell the client we could consider backdated period once decision made on ongoing mid care.
- if mid care awarded, the period of entitlement to low care only, with no change of circumstances, looks more ‘wrong’ (which sometimes helped to argue it was official error). In these circumstances it’s worth a request to DM for anytime revision.
- it actually used to work better for the client when mid care was refused, then we would appeal, and on the basis of the appeal sub papers we often found useful evidence of the currently effective award (low care) being so inadequate as to be potentially official error
Then the written submission for the appeal (against refusal of supersession) can also at that point raise the issue of an any time official error revision for the first time. It’s not an appeal against refusal to superseed, so tribunal (in shoes of decision maker) can consider it.
It could be a very useful way to get an unappealable decision before a tribunal
—but you do need very strong evidence on the papers of the decision to reduce care being very inadequate
..Then the written submission for the appeal (against refusal of supersession) can also at that point raise the issue of an any time official error revision for the first time. It’s not an appeal against refusal to superseed, so tribunal (in shoes of decision maker) can consider it.
It could be a very useful way to get an unappealable decision before a tribunal
—but you do need very strong evidence on the papers of the decision to reduce care being very inadequate
I respectfully disagree with this in the present circs. The Tribunal of Commssioneres in R(IS)15/04 ruled out what you’re suggesting (ie using an appeal hearing against a more recent supersession decision as a means to get the tribunal to consider official error re an earlier decision more than 13 months old where the DM had expressly refused to revise the latter). The Tribunal commented as follows:
“However, in the present case the appeal tribunal had before it an appeal against a section 10 decision in circumstances in which there had been an express refusal to revise by the Secretary of State which (as we have held) was not capable of being appealed, and which by section 17 of the 1998 Act was “final”. It seems to us that, in those circumstances, if an appeal tribunal were permitted to substitute a revision decision for the supersession decision, that would in effect be to permit by the back door what is not permitted by the front door, namely an appeal against the refusal to revise…”(para 78).
At the end of para 78 the Tribunal held out the prospect that it may have been different had the DM not refused to revise. But in Liz’s case there has been an express refusal to revise. The above para from R(IS)15/04 was obiter dictum, however, it was subsequently adopted in CDLA/1707/2005 and, therefore, is precedent. In that case, however, there had not been a refusal to revise. That allowed the Deputy Commissioner to revise for official error a decision more than 13 months old even though the appeal was brought against a much later supersession decision.
Point taken about R(IS)15/04 and CDLA/1707/2005 — taken together they seem to say tribunal cannot consider official error revision of a decision that the DM has already expressly refused to revise.
What do you make of this from BD v Secretary of State for Work and Pensions (DLA) [2013] UKUT 0216 (AAC)
CDLA/2972/2011 http://www.osscsc.gov.uk/Aspx/view.aspx?id=3796 ?
“19. However, that is not the end of the road for the claimant. I stressed in paragraph 74 of CK and JK that there is no time limit on the Secretary of State’s power to revise a decision for official error and no time limit on a claimant’s ability to apply to the Secretary of State for such a revision. Multiple applications may be made and the fact that an earlier application has been unsuccessful does not prevent the making of a further application to which the Secretary of State would be bound to give proper attention ... “
CDLA/2972/2011 UT judge Mesher – the decision is nominally about exporting DLA, but the stuff about revision for official error is at paras 19 & 20. I accept it’s obiter
so, in the case above, what would happen if the appeal is about refusal of supersession to middle rate from date of application?
- the tribunal might take a different view to the DM and award mid care from date of application
- the client could then renew the argument that the reduction in care component was an official error, and the tribunal (in the shoes of the DM) would have to give that ‘proper attention’
I still don’t really see how the Tribunal would be able to look at it. I think the remarks in CDLA/2972/2011 mean that even though the issue is off limits for a Tribunal there is nothing to stop the claimant from constantly and repeatedly badgering the DWP for an any-time revision - if the claimant eventually comes up with a decent case, it would be unreasonable of the DWP not to revise. But there wouldn’t be any Tribunal remedy for such a refusal. A complaint or even JR would be the only recourse.
Something that does interest me, and I am not aware of any definitive authority on it, is the following:
- claimant makes a nuisance of himself with endless requests to revise the same LRC decision
- DWP loses patience and says “right, you want a revision: you’ve got a revision. No DLA(c).”
- claimant appeals to Tribunal against the decision as revised
- Tribunal is not satisfied there was any official error in the original decision before it was revised. Does this mean the Tribunal is prevented from awarding MRC or HRC because it is stepping into DWP’s shoesand DWP was similary constrained, absent an any time gound being made out? Would reinstatemenmt of LRC be the best the appellant could hope for? Or does the reviosion to remove LRC put everything back on the table again? I suspect it does, but is there a decision that clearly makes that precise point?