Forum Home → Discussion → Disability benefits → Thread
effective date of supersession, can this be changed?
In a recent Tribunal hearing it became obvious that the speculative date chosen by DWP as the effective date to remove benefit via a supersession was incorrect. Can the Tribunal alter the date to uphold the supersession?
The scenario is this;
following surveillance evidence in November/December 2009 DWP decide to remove DLA. The date of their decision is in April 2010. Benefit is however superseded from 31st July 2009. DWP assert that they believe that claimant’s condition improved (and hence ought to have been notified) on 31st July, as DWP believe that claimant improved as a result of a spinal nerve block. During the interview under caution claimant’s wife (not claimant!) said the injection had occurred on 31st July, hence DWP used this date. Claimant maintains there was no real improvement from the spinal block, but it was a subsequent foot drop in late October 2009 that facilitated greater mobility. (He argues that this had occurred before but was only temporary - so at the time of the surveillance that happened soon afterwards he did not know whether this was a genuine or temporary improvement that allowed greater mobility. Care needs remained constant irrespective of walking ability. The day after the surveillance, of which claimant was unaware, ended, the claimant’s condition took a major turn for the worse and walking again was precluded, care needs increased.)
There was no evidence at the hearing that something occurred on 31st July to suggest to claimant a change of circs had occurred and/or needed reporting. (The reference to 31st July was not actually made by the claimant and may not be evidence against him in any event.) According GP records before the Tribunal the spinal block was on 2nd July. DWP accepted just before the end of the hearing that 31st July was incorrect, but it didn’t matter because the Tribunal could amend the supersession to commence 2nd July instead.
reg 7 (2) (c) (ii) D&A Regs 1999 states only the only valid supersession dates are date of decision, ie here April 2010, OR date of when claimant knew/ought to know of change and should have reported it.
Can the Tribunal amend the supersession date, under their inherent powers, (as they are entitled to make any decision Sec of State could have made)
or,
because DWP have clearly nailed their colours to the mast in electing to choose 31st July which they now accept is wrong (but never said anything prior to Tribunal!) the Tribunal can only consider 31st July?
Hence if there is no evidence of claimant having relevant knowledge on THAT date, which DWP has to prove, then burden of proof is not discharged so supersession is invalid, and benefit must resume.
Does anyone know of any cases that specifically deal with allowing the Tribunal to amend the effective date? Can DWP alter a supersession date in the above circumstances, not being in claimant’s favour when they realise a fundamental dating error has occurred? Can this be done in the Tribunal hearing?
It rather felt like the goal posts had suddenly been moved, and having taken care in my submission and live evidence at the Tribunal to establish an incorrect date, no opportunity was given to address the effectiveness of any other date. (Potential fair trial argument?)
Thanks for your help.
Lid26
“Can the Tribunal alter the date to uphold the supersession?”
In my view, yes. See R(IB) 2/04.
“Can the Tribunal alter the date to uphold the supersession?”
In my view, yes. See R(IB) 2/04.
Agree with that.
The tribunal could make any decision(s) that the DM could have legally made at April 2010. Eg, if it had concluded that there was no change of circs at all from 2/7/09 but that there was such a change from Oct 2009 (reduction in mob needs following foot drop op) which client could reasonably have been expected to notify it could substitute the Apr 2010 supersession with a new one still made in April 2010 but now effective only from Oct 2009.
Even if the tribunal then accepted that there was a further change of circs (increase in mob needs occuring one day after the Nov 2009 sureveillance) I suspect R(IB) 2/04 would prevent it further superseding its own substituted supersession. The reason for that is that the tribunal is only able to make any decision legally open to a DM at April 2010 and as the DM was not aware of any worsening of condition/increase in needs at April 2010 he couldn’t have made a supersession effective from Nov 2009. Nor the tribunal.
Reg 7(2)(c)(ii)(bb) D&A expressly provides that it is the first of the changes of circs where there is more than one change that determines the effective date of the supersession. However, I read that provision as applying only where all of the changes of circs are in the same direction, ie disadvantageous to the client. After all 7(2)(c) applies only where the change of circs is “not advantageous”. In the present case if the client had notified the DWP within one month of his Nov 2009 increase in mob needs (even if he hadn’t notified them about his July or Oct ops) then I think a tribunal could arguably make a further supersession of its own above substituted decision so that the April 2010 decision now read:
(i) Original decision awarding HrM & care component superseded with effect from Oct 2009 awarding care component only. Legal basis - 6(2)(a)(i) and 7(2)(c)(ii)
(ii) Supersession decison in (i) itself superseded with effect from Nov 2009 awarding care component and re-instating HRM. Legal basis - 6(2)(a)(i) and 7(2)(a).
Decison (ii) above would get round the apparent bar in 7(2)(c)(ii)(bb) because whilst still made under 6(2)(a)(i), it would be a supersession in its own right, one that was advantageous to the client and, therefore, one with its own effective date under Reg 7 as shown.
As Paul says the authority for all of that would be R(IB)2/04.
[ Edited: 7 Aug 2013 at 07:28 pm by Tom H ]Nevip, I am not sure that R(IB) 2/04 purports to give a Tribunal authority to change a Supersession date in the manner I have outlined above.
Having read the long judgment of the 4 combined appeals in the above case, I can find no specific mention of altering an effective date where DWP have chosen the wrong date. The 4 appeals deal variously with decisions which are unclear, for example where DWP believed they were superseding, but should have been revising and vice versa, or perhaps should simply have been re-awarding existing benefit. If revision is correct, then the effective date of change can be the date of the original decision eg initial claim, The effective date of supersession will be a later date, and correct grounds must be shown.
The judgment refers to the Tribunal being able to amend ‘errors of form not substance’. (para 119)
In my opinion the above judgment allows a Tribunal to establish the administrative process in changing a benefit, and not just to assume the label DWP has placed upon it, with the consequence that benefit may run for a longer or shorter period depending on whether a supersession or revision has occurred. The judgment refers copiously to what amounts to incorrect labelling of benefit changes and the administrative consequences thereon. This is the ‘error of form’ referred to.
There is no specific reference to reg 7 (2) (c) (ii), nor any mention of being able to change an effective date in what is certainly, in the scenario I have explained, a supersession (rather because it is actually a revision). This does not appear therefore to be ‘an error of form’; the above regulation is mandatory - “the effective date SHALL be….” This therefore must be the ‘error of substance’ described at para 119?
Lid26
Tom H, thanks for your response which I have now seen.
As per my previous post I am not sure R (IB) 2/04 necesarily purports to allow effective dates to be changed in all supersession scenarios.
It would be nice to have caselaw that definitively says yes this is/no this isn’t allowed.
Assuming that the Tribunal are within their powers to amend a supersession, then I agree that Tom’s proposed decision wording could be valid. But, needless to say this was not the wording used by the Tribunal, who merely said that the Appeal was disallowed. No entitlement to care or mobility from 31st July 2009. Overpayment to be repaid. (albeit in a slightly more formal way.)
No reasons given, although presumably the Tribunal must have felt that there was a change of circs on 31st July, that should have been and wasn’t, reported. (Despite there being no evidence of such a change on that day.)
I have asked for the WSOR and record of proceedings!
Lid26
The decision is authority for the principle that the tribunal stands in the decision maker’s shoes and has the legal authority to give the decision that the decision maker should have given. The substance/form issue is only really pertinent to whether a section 10 decision was made at all. If the DWP’s decision was not a section 10 one then the tribunal’s power is limited. But, once a tribunal can properly determine that the DWP’s decision was made under section 10 then it, more or less, has a free hand. I’ve done a few tribunals where the tribunal has fixed the date that the supersession takes effect from, without any quibbles from the DWP.
You have to remember the adjudication history before that decision was handed down. The case came about because we (welfs) were commonly getting overpayment decisions thrown out by tribunals because of technical defects in the DWP’s decision making process, i.e. wrong entitlement decision date identified, wrong review ground identified, review decision not included in the appeal bundle, etc (those were the days). R(IB) 2/04 came about to put a stop to all that, making technical arguments largely obsolete and emphasizing that, apart from the more substantive legal errors by the DWP, tribunals had wide powers to make the correct legal decision on substantive issues.
...apart from the more substantive legal errors by the DWP, tribunals had wide powers to make the correct legal decision on substantive issues.
And para 72 makes clear that the kind of substantive legal errors to which Paul refers are likely to be found only in decisions which “have so little coherence or connection to legal powers that they do not amount to decisions under section 10 at all.” Whilst the Tribunal find it unnecessary to give specific examples of such errors, it seems clear to me from the general principles laid down in their judgment that the SSWP getting the effective date of a supersession wrong is not such an error. Consequently, a tribunal would have the power to choose a different date. It would be odd if that were not the case. After all, the Tribunal hold that a tribunal has power to change the ground of a supersession and, as we know, different grounds have different effective dates. Even a revision may be substituted for a supersession which would potentially have greater implications again for the effective date of the decision.
Lid26, if you were right then an appellant when presented with evidence that he’d had an operation on a Thursday which completely cured him could say “yes, it’s true I’m cured, but my appeal should be allowed because I had the op on the Monday not the Thursday”.
I don’t think your case even comes within para 94 of R(IB)2/04 in the sense that you were on notice that the SSWP’s case in substance was that the spine operation was the basis of the change of circs. Was the fact the op took place 28 days earlier than the SSWP had realised really so prejudicial that your client was denied a fair hearing?
The SSWP realised its mistake in any event and raised the issue at the appeal, albeit at the last minute. R(IB)2/04 affirms that “raised by the appeal” in section 12(8)(a) includes raising the issue at the hearing itself (para 32). Even if the SSWP hadn’t done so, the tribunal could have considered the date issue anyway provided it give you the opportunity to comment which it appears to have done (ie, “need not consider” an issue not raised by the parties does not mean the tribunal “shall not” consider it (para 31).
It’s possible that your tribunal has simply got the effective date wrong and meant to supersede from 2nd not the 31st July. Even if it has got the law wrong, ie it felt it could only supersede from 31st because that is what the decision under appeal stated, the UT would hardly set the whole decision aside. In fact, you’d risk the UT substituting its own decision from 2/7/09.
I can understand why you’re annoyed at the tribunal for finding (i) there was a change of circs from July and (ii) finding that the appellant could reasonably have been expected to realise that his mobility was improved from then. Obviously, the claimant didn’t make the notification by 31/7 because he felt there’d been no change at all. And when considering the question of change we obviously need to consider the care/mob needs during “any period throughout which” as required by sections 72/73 SSCBA 92. To the extent that the tribunal have actually given the client the benefit of 28 days after the op before deciding whether there’s been a change of circs (hence, its decision to keep the effective date 31st July), I think that is likely to be an error of law as in most cases it’s likely to take much longer than a month to decide the “any period throughout which” issue. Each case on its facts of course.
However, the tribunal (although you may still disagree) had to decide whether (i) a change of circs had occurred at any point between July 2009 and April 2010 which the appellant could reasonably have been expected to realise needed to be notified. Given the tribunal’s decision, its reasons are unlikely to deal with that issue at all and hence I can see the UT remitting to another tribunal.
[ Edited: 8 Aug 2013 at 02:48 pm by Tom H ]