SSA 1998 s12(8)(b) when a later tribunal sets aside a decision that may affect a live appeal

Hello

Client is in receipt of (ir)ESA and was originally receiving DLA LRC/LRM, so had no entitlement to SDP as there was no award of MRC/HRC. Subsequently migrated to PIP and was awarded enhanced rates of both. Applied for SDP.

SDP was refused because the DM decided that the living arrangements weren’t commercial. Lodged an appeal - still awaiting hearing.

However: a month after the SDP refusal decision, client attended a tribunal for DLA. This was allowed and awarded HRC/HRM from the date of the DLA claim.

So far I’ve been working on the assumption that, if the SDP appeal is allowed, SDP arrears would be due from the start date of the DLA claim, as the client was effectively always in receipt of DLA HRC because the tribunal set aside the LRC decision.

But I’ve just had a nasty thought. At the time the SDP decision was made, the DLA tribunal hearing hadn’t taken place, so although the client was in receipt of enhanced PIP, the previous DLA award was only LRC/LRM. My nasty thought is that the SDP tribunal may consider the DLA tribunal hearing (and the setting aside of the LRC award, replacing it with HRC) as a circumstance not obtaining (SSA 1998 s12(8)(b)), so if the appeal is allowed, SDP would only be payable from the time PIP was awarded, with no arrears covering the time the client was in receipt of DLA.

Or is it a case, as I had originally assumed, that despite the DLA tribunal taking place after the SDP refusal decision, the fact that it set aside the LRC decision means that the client was effectively in receipt of HRC DLA from the start of the claim, i.e. before the SDP refusal date, thus the SDP tribunal decision should also cover the period of the DLA claim? In such a scenario, I think SSA 1998 s12(8)(b) shouldn’t bite even though the hearing was after the decision now under dispute, because the outcome is that the client was legally entitled to HRC from the original date of the DLA claim.

The SoS’s sub never specified any entitlement dates, nor did it mention the DLA/PIP award at all. Our sub for the client will request that it be paid from the start of the DLA claim but the only evidence to confirm the HRC award is the DLA tribunal decision notice which clearly shows that the hearing took place after the SDP decision was made.

I suppose, in hindsight, the client should have waited until after the DLA hearing before applying for SDP to avoid this complication. I also know that, even if the tribunal were to limit the award to only cover the PIP award period, the client could subsequently apply to DWP to request arrears from the time of the DLA award, but I fear that the DM will decide that there was no commercial arrangement for the DLA time period and we’d end up at another tribunal. Client has MH issues so this is something I would very much like to avoid.

I keep umming and aahing between the two scenarios - any opinions?

Thanks

My view is that you should raise the issue of the DLA award at the Tribunal

Don’t forget that appeals are against outcome decisions , not against determinations embodied in them.

The award of the SDP is not a decision, it is a determination embodied in the the decision as to the amount awarded

S128 will not bite here because it does not matter when the decision to award the higher DLA components was made or when evidence became available, provided that evidence can be related to the time of the decision under appeal.  [See R(DLA) 2 &3/01]

Thanks Stainsby - that was my initial feeling too, and I’m sure you’re right - I’ve just been overthinking it!

I don’t think you’re overthinking it.

At para 25 of R(IB) 2/04 the Tribunal of Commissioners held as follows:

“As a matter of principle,..the tribunal may make any decision which the officer below could have made on the legal questions properly before that officer. That principle encompasses dealing with new questions so as to reach the right result on an appeal, within the limit that the appeal tribunal has no jurisdiction (in the absence of express legislation to that effect) to determine questions which fall outside the scope of that which the officer below could have done on the proper legal view of the issues before him, by way of a claim or an application or otherwise.”

To understand what the Dm and, it follows, the tribunal standing in his/her shoes, “could have done on the proper legal view of the issues” we clearly need to identify what legal power was available to the ESA Dm.  Here, section 10(2) SSA 98 provides that a Dm “need not consider any issue that is not raised by the application [for supersession]”.  “Need not” is not the same as “shall not” which means the Dm could have considered, despite it not being raised by the claimant, the effect of the outstanding DLA appeal on the decision whether to award the SDP.  If follows that the tribunal, standing in the Dm’s shoes, could now consider that issue. 

However, the problem appears to be that even if the DM had been on notice about the DLA appeal at the time he refused to supersede the ESA, there doesn’t seem to be an appropriate legal power available under Reg 6 Decision and Appeal Regs to account for the potential future retrospective award of HRC by the DLA tribunal.  Anticipated change of circs?  I don’t think so as such a supersession wouldn’t be effective until the date the change was expected to occur, which the ESA Dm wouldn’t know at that point.

I think it’s arguably one thing for the award of HRC to be retrospective for the purpose of DLA arrears and quite another for it to be retrospective for the purpose of deciding what issues were before the ESA Dm when making the supersession decision that’s currently under appeal.  Certainly, the DWP always argue that a decision is not invalid if it was correctly decided on the facts known at the time the decision was made.  The counter argument is the one that you and Stainsby agree on, ie the HRC was always there but it just took a future tribunal to evidence it, so that the DLA tribunal decision notice is equivalent to the GP letter in R(DLA)2&3/01.  I think that is a strong argument.  I also googled the definition of “obtaining” given section 12(8)(b)’s insistence on only those facts obtaining at the time of the decision under appeal, and one synonym is “effective”.  Certainly, the DLA although awarded later was retrospectively “effective” at the date of the current ESA decision under appeal so arguably obtains at that date also.

I suppose if you don’t want to risk re-litigating the “living on his own” point re SDP arrears in respect of the DLA award, I’d be tempted to apply for supersession re those arrears now and invite the DM not to require a MR of his inevitable refusal and, instead, allow the decision to go straight to appeal so that it can be joined with the present appeal.

Edit: section 12(8)(b) talks of “circumstances” rather than “facts” not obtaining at the time.  I’m not sure if that makes any difference.

Thanks Tom, and sorry for the delay in replying - back from annual leave.

I’ve taken heed of your suggestion and, with my client’s permission, have now requested arrears for the DLA period with a view to linking them at appeal stage.