Points added by appeal decision Maker but decision not revised

I have a case due to be heard at an oral hearing on 7/4. The claimant (with physical and mental health problems) was originally awarded 7 points under Daily Living and 4 under Mobility - previously she was on LRM DLA for mental health . I wrote a submission at SSCS1 stage arguing for enhanced rate DL and Standard rate Mobility (although since the recent guidelines I may be on a hiding to nothing with the mobility). I have just had a chance to assess the full submission from the DWP. The latest decision maker has added 2 points on washing and bathing stating ‘Descriptor A was originally chosen for this activity but I consider that the claimant uses aids to complete this activity so descriptor B should have been selected. This would give her 9 points and the SRDL only. But as the claimant clearly stated that she was seeking an award of ERDL and SRM in the interests of natural justice I have not lapsed the appeal’
An award of SRDL in this case would also have implications for knock on benefits and the client would possibly have been happy with this and to avoid the anxiety of an appeal hearing.
I have been trying to find the regs that may explain this but should the decision maker have issued a new decision of SRDL which the claimant then had the choice whether to accept or challenge? Or is he correct in making it still go to appeal. Can anyone point me in the right direction?
(I realise that if the client really wants to accept the SRDL and not challenge further I can negotiate on her behalf on the day and see if they are ‘minded to award’ this without her having to attend but if there is an easier way to prompt a new decision being issued beforehand it would be a less stressful route for her)

I copied the regs in here.

http://www.rightsnet.org.uk/forums/viewthread/7809/

Sounds similar, I’d guess the DM couldn’t get hold of client on the phone to make the offer

1. Point out the terms of s. 9(1) and (6) of the Social Security Act 1998 and reg. 52 of the Universal Credit Personal Independence Payment, jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013 - these mean that there is no option but to lapse the appeal in the circumstances you have described. It is not a discretionary power.

2. I would adopt a parallel approach - write to the DWP/DM and at the same time, copy the letter to the FtT and request a direction lapsing the appeal (just in case the DWP do not see sense).

3. Out of interest, your post reads as if you were suggesting to the appellant that she does not attend the hearing so that you could ask for the appeal to be withdrawn, with the safety net of the full hearing not being able to go ahead because the appellant was not there to give evidence - this is a very risky strategy and you’d run the risk of the FtT being miffed in the extreme were it to get wind of this.

Edited to add:

Dan - we’ve cross-posted, but I don’t see that reg 52(4) gets them off the hook here - there clearly has been a revision more advantageous to the appellant and it doesn’t appear that there has been any communication from the appellant following that revision that they nevertheless wish to proceed.

Past caring - no I was absolutely not going to suggest the client did not attend if this wasn’t sorted in advance. Just aware that it is something we would bring up on the day if no response to any representation to the DWP in advance.  Sorry if I was not clear in my last paragraph.
Dan - there was not any attempt by the DM to discuss this with the claimant. As quoted it was just decided NOT to lapse the appeal and to press ahead with the Tribunal. I have now spoken to the client who would be delighted with SRDL. I will follow your advice and write to DWP and copy to TS quoting regs and requesting that the appeal lapse and the SRDL award is made.
Thanks for the reply

Just to update. The Tribunal Service Judge gave directions that the DWP had to respond and explain their action within seven days which they never did. On the morning of the tribunal hearing due at 3pm the clerk contacted and said if client wanted to accept SRDL they were happy with that without her having to attend. Client absolutely delighted.

I have often done something similar when submitting/presenting appeals on behalf of a local authority.  If a decision is revised in a slightly advantageous way, but not as far as the claimant was hoping for, it seems inefficient to make them start all over again with a fresh appeal against the decision as revised.  So rather than formally revise the decision, I let the claimant and Tribunal know that the DM is willing to part-concede - then the Tribunal can focus on the areas that remain in dispute while the case continues on its original time line.

It seems quite clear to me from the extract on the other thread and the (in substance) identical wording in the HB D&A Regs that an appeal does not lapse if the decision as revised is less advantageous than the original decision under appeal - not merely less advantageous than the decision the claimant is hoping for. So in a PIP case the original decision might have been to award standard rate DL and the claimant appeals, hoping for enhanced DL and/or some M.  But while preparing the case for appeal DWP decide they should never have awared even DL.  The decision is revised to the claimant’s disadvantage, but the appeal doesn’t lapse because obviously if the claimant was unhappy with DL only s/he is going to be unhappy with no PIP at all.  But in the light of the revision the claimant may well have more to say about the matter and is allowed another month to make further submissions if s/he so wishes (although s/he may prefer to rely on his/her original submission and develop it in the hearing).

In the OP’s case, if DWP had gone ahead and formally revised the decision to give the claimant only some of what she was after it seems to me the appeal most certainly would have lapsed.  But the DM was just trying to handle things efficiently by announcing it as an informal concesssion.