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Welfare Rights Service. DLA/AA: defending the un-appealed component… Mark Perlic. DLA/AA: defending the un-appealed component…. offence bad language understanding. DLA/AA: defending the un-appealed component…. Yes, I too love seeing

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slide1

Welfare Rights Service

DLA/AA: defending the

un-appealed component…

Mark Perlic

slide2
DLA/AA:

defending the

un-appealed

component…

offence

bad language

understanding

slide3
DLA/AA:

defending the

un-appealed

component…

slide4
Yes, I too love seeing

the horror on the representative’s

face when I tell them that

we are going to look at the

mobility component!

Please madam don’t look so

surprised… surely your

representative told you we had

the power to remove your higher

rate care component!

tribunal and dwp powers
Tribunals

s12(8) SSA 1998 - in

deciding appeal an

appeal tribunal ‘need

not consider any issue

that is not raised in the

appeal’…

Section 1.1 page 3

Decision Makers

s9(1) and s10(1) SSA 1998

- in deciding a revision or

supersession request a

DM ‘need not consider

consider any issue that

is not raised’ by the

application…

Section 1.2 page 4

Tribunal and DWP powers
withdrawing the appeal
reg 40(1) DMA Regulations 1999

- pre 3/11/2008

appeal can be withdrawn:

- at an oral hearing; or

- at any other time before the

appeal… by giving notice in

writing…

Schedule 4 Transitional provisions

appeal made before 3 November 2008 - tribunal

can apply procedural rules which applied before

that date.

Section 1.1 page 3

rule 17(1) to (5) Tribunal Procedure Rules

2008 - post 3/11/2008

appeal can be withdrawn:

- at any time before a hearing by

giving written notice of withdrawal; or

- orally at a hearing…

where a notice of withdrawal is given

orally at an appeal hearing this will

not be permitted ‘unless the tribunal

consents to the withdrawal’…

where a party has withdrawn an appeal they may

apply for it to be reinstated within one month of

the date written notice was received or the date

of the hearing in which the appeal was

withdrawn orally.

Section 1.1 page 3

Withdrawing the appeal
the two different types of appeal
1. Salima

Has made a claim for DLA.

She has been awarded

lower rate care and higher

rate mobility.

Salima appeals DWP

decision - she believes that

she should have been

awarded middle rate care.

2. Peter

Has been getting DLA lower

rate care and higher rate

mobility for a number of

years.

His care needs have

increased and he now

thinks he is entitled to the

middle rate care

component.

The DWP refuse to supersede his

existing award. He appeals.

The two different types of appeal…
r ib 2 04 chief commissioner hickinbottom commissioner mesher and commissioner turnbull
tribunal may consider

matters not raised by the parties

tribunals part of the

adjudication system - designed

to ensure that claimants

receive neither more nor less

than the amount of benefit to

which they are properly entitled

legitimate public interest

tribunals have - inquisitorial/

investigatory function

Section 1.3 page 4

R(IB)2/04 - Chief Commissioner Hickinbottom, Commissioner Mesher and Commissioner Turnbull.
r ib 2 04 chief commissioner hickinbottom commissioner mesher and commissioner turnbull1
R(IB)2/04 - Chief Commissioner Hickinbottom, Commissioner Mesher and Commissioner Turnbull.
  • s12(8)(a) grants it a discretion which must be exercised judicially
  • tribunal is under a duty to consider whether or not to exercise the

discretion where the circumstances could warrant it

  • the outcome could be to consider issue not raised or not to consider

issue raised

  • must be conscious exercise of discretion

Section 1.3 page 4

r ib 2 04 chief commissioner hickinbottom commissioner mesher and commissioner turnbull2
R(IB)2/04 - Chief Commissioner Hickinbottom, Commissioner Mesher and Commissioner Turnbull.
  • tribunal would err in law by failing to give adequate reasons for its conclusion
  • natural justice - claimant should be given notice of the tribunal’s intention to consider superseding adversely + time to enable him to properly prepare his case
  • tribunal may consider it more appropriate to leave the question whether the original decision should be superseded adversely to the Secretary of State

Section 1.3 page 4

cdla 4140 2007 commissioner mesher
claimant was getting DLA lower rate care component

by way of supersession made application for the mobility component

appeal hearing - not represented but was accompanied by her sister

tribunal - refused mobility and removed existing care component award

tribunal warned claimant - ‘risked losing’ current award - if no evidence to support award

Background…

Section 1.4 page 5

CDLA/4140/2007 - Commissioner Mesher
cdla 4140 2007 commissioner mesher1
criticised tribunal for not acknowledging the discretionary power it had to consider whether claimant entitlement to the care component - as per R(IB)2/04

condemned tribunal’s approach - that it was for them to decide whether the claimant was entitled to the care component - confirmed tribunal could only do that after conscious exercise of the judicial discretion (which was demonstrated in its reasoning).

Finding…

Section 1.4 page 5

CDLA/4140/2007 - Commissioner Mesher
cdla 4140 2007 commissioner mesher2
CDLA/4140/2007- Commissioner Mesher

Section 1.4 page 5

  • criticised tribunal - depriving the claimant of a ‘fair opportunity of stating’ their case - contrary to the rules of natural justice and right to a fair hearing
  • ‘ultimate principle’ - claimant should not be denied a fair hearing
  • tribunal should have given ‘sufficient notice’ to enable claimant to properly prepare defence of the care component
cdla 4140 2007 commissioner mesher3
CDLA/4140/2007- Commissioner Mesher
  • where claimant was represented ‘by a representative of some experience and competence’ - may be enough that the representative indicates that all the tribunal’s options have been explained to the claimant and they wish to proceed
  • where claimant not represented or (e.g. accompanied by a relative) ought to be offered an adjournment to another date to give an opportunity to take advice and/or obtain further evidence or put together some representations in support of the existing award

AND

  • should be offer of a short

adjournment to consider

whether to take up the offer

of an adjournment to

another date

Section 1.4 page 5

cdla 2084 2007 deputy commissioner paines
claimant - appealing DWP decision to reduce award of higher rate care and higher rate mobility to middle rate care and lower rate mobility

tribunal decided that the claimant was not entitled to either component of DLA

Background…

Section 1.5 page 6

CDLA/2084/2007 - Deputy Commissioner Paines
cdla 2084 2007 deputy commissioner paines1
Finding…

confirmed R(IB)2/04 - that tribunal must make conscious decision to use discretionary power

AND

must warn the claimant and allow them opportunity to prepare their case or withdraw the appeal

appeal was whether the award was too low not too high

tribunal were therefore not actually obliged to consider whether the award was too high

criticised tribunal - the statement of reasons failed to record that the tribunal had reached a conscious decision to use power under s12(8)(a)

criticised tribunal - no evidence that the claimant was warned of the possibility that the tribunal may cancel the award made by DM altogether

Section 1.5 page 6

CDLA/2084/2007 - Deputy Commissioner Paines
cdla 884 2008 commissioner rowland
Background…

claimant - getting DLA care lower rate and mobility higher rate

claimant - appealing decision refusing to award middle rate care following supersession request

tribunal had concerns from papers that claimant not entitled to care or mobility

tribunal warned claimant of risks - claimant declined to withdraw appeal

tribunal began by examining mobility - asked claimant how they had got to the appeal hearing - could walk 120 yards (100 before stopping for rest)

tribunal refused to increase care component and withdrew mobility

Section 1.6 page 6

CDLA/884/2008 - Commissioner Rowland
cdla 884 2008 commissioner rowland1
Findings…

confirmed that tribunal needed to give reasons for enquiring into award of higher rate mobility and lower rate care when this was not in dispute between the parties (R(IB)2/04)

not enough just to warned claimant must give “sufficient notice” to allow claimant to prepare a case (R(IB)2/04)

warned of the dangers of a tribunal being both prosecutor and judge

noted difficult to get warning right between “too robust” and “not robust enough” - powerful reason for tribunal refraining from making decisions less favourable to claimant except in most obvious of cases (where evidence is “overwhelming”)

where doubts about award - tribunal draw to attention of Secretary of State - DWP can revise/supersede award

Section 1.6 page 6

CDLA/884/2008 - Commissioner Rowland
cdla 884 2008 commissioner rowland2
Findings…

distinguished between - new claim and supersession

raised issue of overpayments - e.g. failure to report change of circumstance/misrepresentation

Section 1.6 page 6

CDLA/884/2008- Commissioner Rowland
c15 08 09 dla commissioner mullan
C15/08-09(DLA) - Commissioner Mullan

Background…

  • claimant - awarded DLA care higher rate and mobility higher rate - by appeal tribunal
  • DWP - superseded award reducing to DLA care lower rate and mobility higher rate
  • claimant appealed - at appeal - tribunal adjourned enable claimant to seek independent legal advice and warned that ‘… award could be varied’
  • at appeal claimant represented by husband - award reduced to DLA care lower rate and no mobility

Section 1.17 - page 13

King Kenny!

c15 08 09 dla commissioner mullan1
Findings…

statement of reasons no

mention of grounds for

supersession

tribunals job is to consider:

whether grounds for supersession existed; and

2. establish effective date; and

3. make clear in statement of reasons that it has done so

must be explicit not implicit - not

preferable but essential - failure

error of law

claimant entitled to know what

had changed to enable earlier

decision to be superseded

Section 1.17 - page 13

C15/08-09(DLA) - Commissioner Mullan
c15 08 09 dla commissioner mullan2
C15/08-09(DLA) - Commissioner Mullan

Reviewed…

  • R(IB)2/04
  • C48/03-04(DLA)
  • C24/07-08(DLA)
  • C18/07-08(DLA)
  • CDLA/884/2008

Section 1.17 - page 13

c15 08 09 dla commissioner mullan3
Findings…

a tribunal has the power to return a ‘less favourable’ decision - supersession or revision

discretionary power - must be

exercised judicially

any statement of reasons must set out reasons for use of discretion

tribunal must give notice of intention to make less favourable decision - enable appellant to prepare case (rule of natural justice - Article 6 HRA)

appellant entitled to withdraw

appeal (note: pre new tribunal

procedure rules - permission now needed to withdraw appeal)

tribunal should refrain from making less favourable decisions except in most obvious cases - or after an appropriate adjournment

where tribunal any doubt about award - under a duty to investigate - make sure award is correct (different to CDLA/884/2008 Commissioner Rowland - tribunal alter DWP decision only in ‘most obvious cases’)

Section 1.17 - page 13

C15/08-09(DLA) - Commissioner Mullan
cdla 3255 2008 judge lane
Background…

claimant - blind since 1989

was getting DLA care middle

rate and mobility lower rate

sought supersession - higher

rate mobility - unable/virtually

unable to walk

DWP refused

claimant appealed - asked

tribunal not to look at care

component - tribunal advised had

power to look at both care and

mobility - allowed 30 minutes to

consider whether to proceed

Section 1.16 - page 11

CDLA/3255/2008 - Judge Lane
  • appeal tribunal - awarded lower rate care and lower rate mobility only
cdla 3255 2008 judge lane1
tribunal did not relinquish its impartiality by examining un-appealed component - tribunals have inquisitorial function

discretionary power - triggered from evidence arising from having previewed the appeal or upon hearing evidence - can decides un-appealed component requires examination

tribunal has discretion - ‘defect’ must be ‘patent’

Section 1.16 - page 11

CDLA/3255/2008 - Judge Lane

Held that tribunal must give adequate reasons - but - in ‘obvious’ cases tribunal’s failure to expressly record reasons for exercising discretion is unlikely to make decision erroneous in law - in less obvious cases the need will be greater to make reasons clear - expressly or inferentially

cdla 2738 2007 rowland
higher mobility - boarder line

cases - tribunal should be slow to

interfere (tribunal entitled to take

view not entitled and DWP

entitled to take view is entitled)

Lord Hoffmann (Moyna -

House of Lords) correct legal line

and not “outside the bounds of

reasonable judgment”.

CDLA/717/1998

(Commissioner Rowland) -

“margin of appreciation”

CDLA/2738/2007 - Rowland

Section 1.18 - page 17

summary thoughts
Summary thoughts…
  • s12(8)(a) raises important points for both tribunals and representatives
  • case law confirms s12(8)(a) - ‘need not consider’ discretionary power - must be exercised fairly
  • tribunal cannot ‘check-up’ on all claimants
  • must have trigger - ‘claimant looked a bit shifty’ (not sufficient!)
summary thoughts1
trigger could be:

what is said in claim form

what is contained in medical evidence

claimant’s oral evidence

tribunal’s observations

representative looked a bit shifty (only joking!)

trigger should be of sufficient material weight- must be patent

Summarythoughts…
summary thoughts2
Summarythoughts…
  • full statement of reasons should contain:
    • details of the trigger
    • fact tribunal were going to use (or not going to use) discretion
    • reasons for using (or not using) discretion
    • fact claimant put on notice
    • fact claimant refused or offered adjournment to prepare case
    • if adjournment refused - reasons why
  • and revision/supersession - grounds(if applicable!)
summary thoughts3
Dear Tribunal, please list this

case for hearing, we now have

the evidence we need for any

eventuality…

wrong to place burden on representatives of having to prepare (and gather evidence) argument to cover every eventuality

could prove foolish practice of getting e.g. medical evidence on both components - could provide THE very trigger needed for enquiry into un-appealed component

Summary thoughts…
summary thoughts4
Summary thoughts…
  • same rules seeking higher rate care (higher rate Attendance Allowance) - focus on matter in dispute between parties (i.e. claimant and DWP) only
  • overriding objective of tribunal to act fairly and justly (rule 2)
  • withdrawal of appeal - apply for appeal to be reinstated - one month time limit (rule 17)
  • submit complaint!
finish
Finish…

Thank you

Mark Perlic