Refusal of anytime revision

CDLA/756/2012 — A decision can be revised more than once. I think this maybe of use

Absolutely - a decision can be revised and further revised ad infinitum - I am surprised anyone was still seriously arguing about that as recently as 2012.

What I am not so sure about is whether, when it comes to further revision following a disadvantageous revision, any constraints which would have served to prevent advantageous revision the first time around persist for the purposes of further revision.  This needs an example to make sense of what I am trying to say.

In 2010, an original decision was made.  As we are discussing DLA lets say it was an award of MRC.  The claimant was happy enough and didn’t challenge it.

In 2013, DWP thinks it has discovered some material fact of which it had previously been unaware and revises the decision to the claimant’s disadvantage - now s/he only has LRC.  The revision of the decision refreshes the claimant’s right to dispute it by way of an application for [further] revision or appeal.

Suppose by this time the claimant has been advised that if they had argued more strongly at the outset they could have made a reasonable case for HRC.  DWP didn’t do anything wrong - MRC was a reasonable award to make on the facts available at that time.  If it hadn’t been for the disadvantageous revision, the claimant would now be way out of time for advantageous revision.  However, by revising the decision the DWP has refreshed all the time limits.

So what I would like to know is: can the DWP, or the Tribunal hearing an appeal against the decision as revised, now award HRC, or is MRC the best that could happen because MRC was the best that could happen at the time when DWP revised the decision?  The DWP was constrained in 2013 by the time limits preventing advantageous revision, so does that mean that on appeal or application for further revision the Tribunal or DWP remains similarly constrained?  Or is this now a no-strings appeal with all options open?  I suspect it is, but CDLA/756/2012 doesn’t seem to deal with that aspect.

Thanks Tony - sorry I wasn’t sure whether you were answering me or the previous poster before.

In that case, although you would be playing poker for high stakes, there might be situations where a claimant could contrive or engineer a disadvantageous revision in order to resurrect appeal rights couldn’t there?  In the case of a means-tested benefit, something along the lines of “I won the lottery three years ago and I have had capoital in excess of the limit all this time”.  Then a week later: “I would like to apply for further revision of all the decisions you have just revised because actually I didn’t win the lottery, I just made that up.  But while you are at it, I think I should actually have been paid more all along”.

HB Anorak - 12 June 2013 09:46 AM

..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?

I don’t think the tribunal could award anything more than LRC in those circumstances, although I laughed at the idea of the claimant tricking the DM into opening up the original decision.

As we know, whilst an appeal against a refusal to revise is in one sense an appeal against the original decision (as revised), it is also an appeal against whether there were adequate grounds to revise/not to revise, ie an appeal against the revision decision itself – see paras 39, 40, of R(IB) 2/04.  Sorry, if I gave the impression in my previous post that the appeal is simply an appeal against the original decision.  The same Tribunal of Commissioners that handed down R(IS)15/04 had heard R(IB)2/04 a few weeks earlier.

Adding dates to your example:

(i)  Awarded LRC by decision dated 1/6/09
(ii) DM eventually cracks after repeated revision requests by client and makes a decision dated 21/9/12 which revises the decision in (i) above to award no care component at all.  Ground of revision is mistake of material fact.
(iii) Client appeals on 30/9/12, ie well within the one month deadline that started running again from 21/9/12.
(iv) When the tribunal considers whether DM was mistaken about a MF, it cannot look beyond the circs obtaining at 1/6/09 – para 53 R(IB) 2/04.  However, it doesn’t follow that the tribunal can award MRC from 1/6/09 should it find the DM did not make a mistake of material fact.  That is because as stated in paras 39 & 40, 55(7), (8) and (10) R(IB) 2/04, the appeal is, of course, also about whether there were adequate grounds to revise.  In that sense the claimant’s appeal made in (iii) above is also an appeal against the revision decision itself dated 21/9/12.  Your example states that there was clearly no official error when the original decision was made on 1/6/09, so there are no grounds to revise on that basis and a tribunal has no greater powers than the DM who sat down on 21/9/12 to consider whether there were grounds to revise.

Interestingly, the DM could in the above example if he wished find that there’d been an increase in the claimant’s care needs from, say, 4/5/12, ie before 21/9/12, and award MRC from 4/8/12 (ie 3 months’ backwards qualifying waiting period before being paid).  In other words, it could replace the DM’s revision decision removing LRC with a supersession awarding MRC.  That’s because when considering whether to supersede it can look at all of the facts obtaining at the date of the revision decision itself, ie 21/9/12 – see para 55(10) R(IB) 2/04.

Alban, I actually agreed with Bridget’s interpretation of the law (she mentioned raising the issue of revision for the first time at the supersession appeal, ie rather than giving the DM the chance to refuse to revise by raising it any earlier).  However, the facts in Liz’s case were that there had been an express refusal to revise already.

In terms of the rationale behind para 78 of R(IS) 15/04, it’s a little confusing.  The Tribunal reminds us that the original decision which is out of time to appeal and which the DM refuses to now revise is “final”.  However, it would only be final until a tribunal changed it.  So that doesn’t seem a rational reason for preventing a tribunal replacing a much later supersession with a revision (for official error) even if a DM had earlier refused to revise.  The real reason seems to be the Tribunal wanting to avoid an abuse of process (ie stopping through the back door what you cannot do through the front).  However, again, a revision for official error is by its nature a means of getting round the 13 month time limit for appealing.  Far from being an abuse of process it is, simply, part of the process.  And if a tribunal has exactly the same powers as a DM there doesn’t seem any good reason to prevent a tribunal that hears an appeal against a later supersession from substituting a revision.  I also see what Alban is getting at in the way one DM’s refusal to revise does not prevent a future DM if they wished to revise.  Eg, if Liz applies for supersession now, a DM could say “I’m not just going to supersede, hell I’m going to revise that stupid decision back in 2007as well, and I don’t care that a colleague of mine refused to revise it when you last asked (so why not a tribunal standing in that DM’s shoes should he choose not even to supersede?).  However, as things stand, R(IS) 15/04 is precedent where there has been an express refusal to revise (sorry the bit that’s obiter in R(IS)15/4 is the bit concerning where there hasn’t been an earlier refusal to revise).

Liz, you could, of course, get lucky.  Not all Tribunals (or Presenting Officers) are aware of R(IS)15/04:)

Excellent analysis.  Good stuff. Thanks for that

Thanks, though I went a bit far in suggesting that a supersession could commence from 4/8/12 in the above example.  Even though the increased needs may have occurred on 4/5/12, the effective date of any supersession would, of course, usually be the date the claimant notified the DM of the change (Reg 7(2)(b)(iii) D&A).  So in the example, from the date of the claimant’s application for revision which caused the DM to crack.

A very interesting situation, not unlike the one that I recently argued at the Tribunal.

Client had been in receipt of IIDB for 8 years at the 80% rate. A renewal took lace in 2004. The client had an examination in February 2004 and a few days later was admitted into hospital. He was discharged in June 2004. When he arrived home he went through his post etc and realised that he had heard nothing about the IIDB claim although he knew he had failed it as his income had ceased during his stay in hospital. He wrote to the DWP asking what was happening. Unfortunately a few days later he was re-admitted back into hospital and was discharged in Feb 2005.

He was physically and mentally in no fit state to deal with anything. During the period Feb 05 to April 2011 he spent approx. 75% of his life in hospital.

In May 2011 he was discharged and started to go through his affairs. He obtained a copy of his file from the DWP re the IIDB claim and found that the Decision Notice had been sent to an address he had not lived at for many years. He then applied for a review of his IIDB claim in June 2011 and eventually with evidence being sent in to confirm his condition as it was in 2004, what it had been from 2004 until 2011 and a prognosis for the next few years he received an award letter in December 2011 that he was awarded IIDB at the 40% rate from February 2004 to February 2014.
His benefit was put into payment as from March 2011. The period 2004 to 2011 whilst there was an award made it cannot be paid.

He appealed against the 2004 decision but the Tribunal refused it as (a) it was out of time and (b) he could not argue that the 2004 decision notice had not been sent - it had, but to the wrong address.

I applied to the Special Payments Unit but they threw it back at me on the grounds that there was no ‘official error’ involved. The claimant had simply not appealed when he should have!