rights of Appeal against a reconsideration not revised

The client had his DLA stopped after not attending a medical assessment, 24/7/08.

An opinion was requested from the client’s GP by the DWP, and an report was done by the GP.

7 days after the GP’s report was done the DWP did a reconsideration, 26/08/08.

I have asked for an ‘anytime’ revision of that decision as the GP’s report did not include details of the client’s condition at the time, which were in his medical records. (the Client was under a Consultant at the time)

The DM is arguing that the decision of the 26/8/08 ‘as a reconsideration not revised, it does not carry Appeal rights’.

Is my argument flawed, that the decision of the 26/8/08, must relate to the aspect of the case relating to the client’s disability, because the only change/evidence presented to the DWP between the 24/7/08 and the 26/08/08 was the report from the GP on the 16/08/08?

Even though the decision of the 26/08/08 asserts itself only to relate to the decision of the 24/7/08, which concerns the client’s non attendance of medicals?

Thank you

Those seem dubious grounds for ending DLA.  But it’s a supersession decision nevertheless and the normal one-month appeal time limit applies.  However, you say you’ve made an “anytime” revision request, presumably based upon an official error.  A DM’s refusal to revise for official error does not extend the time limit for appealing.  Instead your option would be to late appeal against the original decision, ie the July decision.

However, if you made your application for revision within one month of the July decision, then it could also be classed as an “any grounds” revision (ie made under Reg 3(1) Decisions and Appeals Regs) even if you’ve called it an “anytime” revision.  In that case, the DM’s refusal to revise extends the time limit for appealing the original decision by one month which runs from the date of the letter refusing to revise.  That is by virtue of rule 23(2) of, and para 1(c)(ii) of Sch1 to, the Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008.

The decision of the 24/7/08 to disallow the client’s claim for DLA because he did not attend a medical examination was successfully appealed against and won after being returned to the First Tier Tribunal from the UT.

There were two parts to that Tribunal appeal; 1) the basis of the 24/7/08 decision and 2) the decision that the client did not satisfy the the conditions to qualify for DLA.

The second decision was based on medical opinions from the client’s GP and an EMP report that took place in September 08

The client’s issue is that the GP’s report, dated the 16/08/08 was inacurate and incomplete as it did not contain various conditions that were on his medical records at the time. The client went to great lengths to inform the DWP that this GP report was missing significant details. The client was also under a Consultant at the time, whose opinion was not sought.

The ‘officail error’ is the DWP’s refusal to act on the information they were given by the client that the report of his GP’s was inaccurate and factually incorrect and not seeking further details of his conditions and not seeking the opinion from the Consultant.

I am asking for an ‘anytime’ revision of the decision of the 26/08/08 as I see no other reason that a reconsideration be made on the 26/08/08 other than on the basis of the report recieved from the GP (16/08/08).

The DM states that ‘a reconsideration not revised has no appeal rights’. Which I am not sure I understand. Do they mean that if a reconsideration of a decision up holds the present decision it can not be appealed against?

Can I argue that even though the DWP are stating that the reconsidertion of the 26/08/08 was a reconsiderartion of the decision of the 24/07/08, this decision must be related to the GP’s report as there was not other alteration in the information the DWP had apart from the GP’s report relating to eligibility of the client based on him meeting the conditions of entitlement?

Thank you

Oops.  Sorry, I misread 2008 for 2012. 

Just to check I’ve got it right your chronology is this:

(i)  DLA is ended by decision dated 24 July
(ii)  You appeal that decision
(iii)  DM obtains a GP report dated 16 Aug and makes a decision dated 26 Aug refusing to revise the decision in (i).
(iv)  Appeal is successful
(v)  DM re-instates DLA from 24 July but then stops it from 26 Aug.

Is that the correct scenario? 

If so, I think the DM is wrong to time-limit the tribunal award.  The 26 Aug decision was restricted to looking at the evidence upto and incl 24 July but not after.  The GP report despite post dating 24 July was potentially relevant because it would probably have included info about the client’s condition at 24 July (even though it missed out certain medical conditions).

There is no right of appeal against a revision or a refusal to revise.  The DM is right about that.  The DM appears to have instigated the revision within one month of 24 July (eg he obtained a GP report on 16 Aug).  Consequently, the time limit for appealing the 24 July decision would have been extended until 26 Sept 2008, ie by one month from 26 Aug.

However, all of that is irrelevant because the effective date of the tribunal’s decision is 24 July (its decision simply replaces the nil entitlement decision with an award of DLA).  The DM doesn’t realise it but his 26 Aug decision is now refusing to revise the tribunal’s award. Which is exactly what you want (note: the law wouldn’t have allowed him to revise the tribunal award anyway even if he’d wanted to).

However, it is open to the DM to argue that the 26 Aug decision is now, in substance, a supersession of the tribunal’s effective decision of 24 July, based upon the tribunal being ignorant or making a mistake about a material fact.  The material fact could potentially be that the client did not have the medical condition which he asserted he had, ie the GP’s report was silent about that condition.  But on the info provided the GP report was itself factually incorrect and furthermore the tribunal appears to have been aware of that.  Consequently, it seems the DM is the one who is ignorant of a material fact, ie that the GP report is wrong, not the tribunal.

And the DM would find it difficult to supersede the tribunal regardless unless he had a copy of its record of proceedings and statement of reasons. 

I would write to the tribunal and advise that the DM has, in effect, superseded the tribunal (ie, that is the only reason he could time limit the tribunal’s award even if the DM doesn’t call the 26 Aug a supersession as such).  Because the DM has, obviously, not issued a decision notice re the supersession I would be asking the tribunal to determine under Reg 32(1) Decisions and Appeals Regs if you are still in time to appeal it.  The tribunal should hold an interlocutory hearing to decide that and the outcome should be that the appeal time limit has not started to run. 

You subsequently appeal and, eventually, get to a proper tribunal where the DM gets laughed out of the room because there’s no merit whatsoever to his argument that the original tribunal was ignorant etc of a material fact.  There was no material fact to be ignorant of.

With respect, your “any-time” revision is a non starter because you’d effectively be asking for the DLA award whose effective date is 24 July to be revised.  That’s not what you want.  In any event, the GP arguably contributed to the error behind the 26 Aug so it cannot be an official error (ie, no one outside DwP must have contributed to the error).

The client has come to me regarding this matter relatively recently.
i)  DLA is ended by decision dated 24 July
(ii)  You appeal that decision

There is a letter, titled ‘complaint’ on the file that might be considered an appeal letter date 10.08.08, but no appeal was lodged.

(iii)  DM obtains a GP report dated 16 Aug and makes a decision dated 26 Aug refusing to revise the decision in (i).

A DWP phone record not dated, between 27/8/08 and 1/9/08: The advisor states that the based on the GP’s report they have not been able to assess his mobility and care needs.

He was advised that they would make a reconsideration decision and that (the client) could appeal it if he wished.

That is the decision of the 26/8/08.

Another letter is on the files dated 3/9/08 from the client’s partner that details the issues she and the client have with the decisions made.

The client took advice from a solicitor and in the submission they prepared it refers to the client lodging an appeal on the 29/8/08.

An EMP examination took place on the 16/09/08.

On the 25/09/08 another decision was made by the DWP that the client was not eligible for DLA from 24/07/08 based on the clinical finding, (EMP report and I assume the GP’s report)

Tribunal 12/12/08 decided against the client and upheld the decision to disallow the claim for DLA as the Respondent had grounds to supersede the previous award of DLA on grounds of a change of circumstances during the relevant period.

11/5/09 Upper Tribunal set-a-side FtT decision.

Reasons: ‘real doubt as to why the appeal was dismissed’

The client made a fresh claim for DLA on the 22/12/08. This claim was turned down on the 10/2/09 and appealed against.

A hearing on the 18/1/10 was held looking at both the decision set-a-side and the decision to turn down the fresh application.

The apeal against the decision of the 24/7/08 was upheld but the decision of the 10/2/09 was up held based on the EMP’s report of the 16/9/08.

(iv)  Appeal is successful

(v)  DM re-instates DLA from 24 July but then stops it from 26 Aug.

I will get back to you on exact dates of reinstating

The client appealed to the UT and was refused permission.

There are some complications toward the end of this matter that I have yet to look into.

Based on that new info, the client should have been paid arrears of DLA from 24/7/08 - 21/12/08 (ie the day before his new claim).  The decisions of 26/8 and 25/9 are both refusals to revise and are not appealable as such.  Instead, they can extend the time limit for appealing against the original decision.  The fact is that an appeal was accepted as properly made and he eventually won it.  He has lost the appeal re the 2nd claim made on 22/12/08. 

It’s not clear, with respect, why you’re pursuing an “anytime” revision which in this case is a revision based upon official error.  The decision you’re attempting to revise is dated 26/8/08.  However, that itself was a refusal to revise.  That decision does not exist independently of the 24/7 decision, the latter is the former’s lifeline.  And the same is true of the 25/9 decision which is also a refusal to revise the 24/7 decision.  Both 26/8 and 25/9 decisions are now overriden by the tribunal’s decision to allow the appeal against the 24/7 decision.

Apart from appealing on a point of law the UT’s dismissal of the 2nd appeal, that would seem to be the end of the road.

Referring to your question as to why I am pursuing an ‘any time’ revision; I am working on the understanding that the reconsideration that was made on the 26/8/08 was based on the details received in the GP’s report 16/8/08, or the lack of details.

The DWP state that the GP had not been able to give the information they required regarding the care and mobility needs of the client and so the reconsideration made could not alter the previous decision (24/7/08), though that decision was based on the client not attending medicals not the care and mobility needs of the client.

The client had made it clear to the DWP that the GP’s report was inaccurate and did not include conditions that he suffered with and also made them aware that he was under a Consultant.

How would the ‘reconsideration’ or a ‘refusal to revise’ the decision on the 26/8/08 not be related or based on the information gathered from the client’s GP on the 16/8/08?

If it is based on that report, and that report can be shown to be inadequate as an assessment of the client’s condition, and the client presented a persistent and cogent argument to the DWP that this report was inadequate and requested that they look at his full medical records, would it be an ‘official error’ to over look the facts of the client’s medical records and request a more comprehensive report?.

Where would I find the rule that states that a refusal to revise a decision can not be appealed against?

So, if I can’t separate the decision of the 26/8/08 from the decision of the 24/7/08 (though that decision was based on the client not attending medicals) then the decision of the Tribunal hich upheld his appeal overrides the decisions relating to the client’s care and mobility needs of the client 26/8/08 and he 25/9/08.

Your advise that the decision of the 25/9/08 is overridden by the Tribunal 18/1/10, raises a question regarding the decision to turn down the application made on the 22/12/08.

The EMP report that was the basis of the decision of the 25/9/08 was one of the basis’ of the decision to turn down the application of the 22/12/08 and was used in the Tribunal to up hold that decision.

The rule in Aug 2008 was Reg 31 Decisions and Appeals Regs 1991 which provided:

“31.—(1) Where an appeal lies from a decision of the Secretary of State to an appeal tribunal…the time within which that appeal must be brought is, subject to the following provisions of this Part—

(a)within one month of the date of notification of the decision against which the appeal is brought…

(2) Where the Secretary of State—

(a)revises, or following an application for a revision under regulation 3(1) or (3) does not revise, a decision..under section 9…

the period of one month specified in paragraph (1) shall begin to run from the date of notification of the revision..of the decision, or following an application for a revision under regulation 3(1) or (3), the date the Secretary of State issues a notice that he is not revising the decision.”

The above Reg has been replaced by the Tribunal Procedure Rule I mentioned in post 1 above.

The revision or refusal to revise simply extends the deadline for appealing against the original decision. The appeal is always against the original decision.

The 24/7 decision, as replaced by tribunal, is based on the conditions of entitlement.  The fact the original grounds for it were dubious is irrelevant.

Just because the 16 Sept EMP report was commissioned to help the DM decide whether to revise the 24 July decision doesn’t stop it being potentially relevant evidence for the 22 Dec new claim.  The clinical findings in that report would have been those at 16 Sept and the new claim was made just over 3 months’ later.  Was the client asserting deterioration in that time?  But the answer is now largely irrelevant because the FtT has obviously found the EMP evidence relevant and the UT has refused permission to appeal.