OP can DM just ignore decision revised on appeal and supersede again?

Client in receipt of IS since 2002. DWP enquiries about capital in 2011.  Client had accumulated 27k in saved benefits.  IS gets suspended from Nov 2011. 
IS stopped decision with decision in February 2012, bec of excess capital.  Fraud interview follows end of February.
Client appeals decision to stop benefits, on grounds that she is not beneficial owner of the capital.
On receipt of appeal ,DM revises decision and IS is reinstated from November 2011. IS payments back to November 2011 are made in May 2012 (albeit without SDP). 
Then, in June IS stops again and overpayment decicsion is made, too.  Client appeals. 
Schedule of evidence says:  ” On 21 6 12 the IS decision maker superseded the decision dated 23.2.05 and all subsequent decisions awarding IS [..as she failed to disclose capital..].” There is nomention of the previous decision to stop benefit from February 2012 and the revised decision re-awarding benefit in April. 
Can they really do this?  For a start, how could there be a supersession of the previous decisions as there were no new facts that came to light after February (or April ) 2012?  Would they not have to revise the April decision, and give some reason for revising it, as well as some reason for removing benefit back beyond the June decision?

It could also be due to ‘issues’ between the ‘referring office’ (IS) and debt management (DTM -  the office that makes overpayment decisions) about the original referral from IS and subsequent decisions / action / lack of internal co-ordination at DTM (some times they realy don’t know what they are doing) where DTM have made a previous ‘decision’ in error (maladministration) and are now trying to correct that error by issuing a subsequent overpayment decision but being unable to explain coherently why they have made that subsequent decision.

There apperas to be a significant issue at present between PS and DTM around the internal administration of PC overpayments (its not us its them)!

Both decisions were made by the same office.  I don’t know on what grounds decision 2 (the one that gave the client the benefit back) was made, no details were provided.  But would there not have to be some reason to supersede it, apart from the DM in decision 3 not liking decision 2?  The ground for supersession given in the submission was the undisclosed capital, which was no longer undisclosed when decision 2 had been made. The only reason for superseding I can think of is in reg 6 2(b) error of law, which IMO would not work if decision 2 was made by a DM who applied the law correctly but decided to accept claimant’s explanation about not being beneficial owner. Or are there any other grounds they could rely on?

If I’ve got this right the Feb 2012 decision superseded an earlier IS award dated 23.2.05.  The Feb decision was then revised by a decision which, although made in April 2012, would have been effective from Feb 2012.  In other words, the April decision simply replaced the Feb decision with a new decision.  The new decision concerned would be along the following lines: “The DM refuses to supersede the decision dated 23.2.05 as there are no grounds to supersede.”  You don’t say whether the DM accepted the claimant’s defence that she wasn’t the beneficial owner of the capital but it doesn’t really matter anyway.  The important point is that the Feb 2012 decision, AS REVISED, is now a decision refusing to supersede made under section 10 SSA 98.  The legal basis for making the revision was probably Reg 3(4A) Decisions and Appeals Regs, ie the Feb 2012 was under appeal at the time and the DM can revise it under Reg 3(4A) at any time until the appeal is heard.

The DM then has another go at superseding the 2005 decision.  The new supersession is made in June 2012, its grounds are almost certainly change of circs, ie that at some date after 23.2.05 client’s capital became such that he would have had tariff income.  And whatever date that change occurred will be the effective date of the June 2012 supersession (Reg 7(2)(v) Decisions and Appeals Regs). 

The principle of finality in section 17 SSA means that the June 2012 decision here determines IS entitlement from its effective date until a new outcome decision is made.  On the facts, the Feb 2012 decision, in its revised state, is a refusal to supersede the existing award.  So whilst the Feb 2012 is an outcome decision, it does not alter the existing award so the June 2012 decision continues to have effect beyond Feb 2012.  And if I’m wrong about that, ie the June supersession is effective only up to Feb 2012, then it appears the DM could simply revise again the Feb 2012 decision on grounds of mistake of material fact (Reg 3(5)(b) Decisions and Appeals), eg, he had thought in April 2012 (when he first revised the Feb decision) that she was not the beneficial owner and now he thinks he was mistaken about that.

However, section 71(5A) Administration Act 92 requires, as we know, that “an amount shall not be recoverable…unless the determination in pursuance of which it was paid has been…revised..or superseded..”

I don’t think the June decision at present satisfies that test because entitlement to IS would have needed to be superseded again, eg each time his capital passed another £250 tariff income threshold and finally when his capital exceeded 16k.  Each of those supersession decisions (they could have all been made on the same day in June 2012 when the DM sat down to make the current supersession) would have had different effective dates.  There may a Commissioner’s decision disagreeing with that approach but I think there are others agreeing with it.  What do others think?

Also, one question, if IS was awarded from 2002, what’s the nature of the 23.2.05 decision that they’re attempting to supersede?

Reg 14 Overpayment Regs should also be considered here – see the caselaw referred to in the commentary to Reg 14 in volume 3 Social Security Legislation for how it operates.

Thanks to everyone for their input.

Tony, the reason I am so stuck on the procedural aspect is that I don’t really know what else I could do about the beneficial ownership issue - client has already made written statements and submitted some witness statements and there is no further evidence to support what she said.

Tom, there is a computer printout of the 23 2 05 decision on the file and to me it looks like an uprating decision as the benefit rates are for 05/06. But the print out also says something about a coc on 11.2.05 - there could have been a change around that time as client became entitled to SDP EDP after DLA tribunal in November 2011.  If it is an uprating decision, does it count as a decision awarding Income Support?

I was going to put something about s 71(5A) and failure to identify invidual decisions (there were further changes after birth of 2nd child and migration to CTC and then again when client lost HRC).  A tribunal threw out an overpayment case because of that failure before, but I don’t know whether this still works now, and the DWP will get an opportunity to correct his anyway and identify the decisions.  I need to look at what you said about superseding when there were changes to capital.

I have not got as far as checking the diminishing capital calculation, there are mistakes with the actual capital calculation (weekly benefits income included as capital).

Why does she say she’s not the beneficial owner of the capital?

I don’t think an annual uprating decision counts as a “determination in pursuance of which [the amount of benefit] was paid” for the purposes of section 71(5A).  I think there’s caselaw confirming that but I couldn’t quote it.

Thanks Tom I will try and dig for some caselaw on that. Nevip, regarding ownership of capital: because of client’s health problems, 2 relatives went to the shops for her and bought things for her, paying out of their own money, on the understanding that she would repay them.