Welfare Rights Service

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 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!

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

reg 40(1) DMA Regulations 1999 - pre 3/11/2008 appeal can be withdrawn: - at an oral hearing; or - at any other time before the appeal… by giving notice in writing… Schedule 4 Transitional provisions appeal made before 3 November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 Section 1.1 page 3 rule 17(1) to (5) Tribunal Procedure Rules 2008 - post 3/11/2008 appeal can be withdrawn: - at any time before a hearing by giving written notice of withdrawal; or - orally at a hearing… where a notice of withdrawal is given orally at an appeal hearing this will not be permitted ‘unless the tribunal consents to the withdrawal’… where a party has withdrawn an appeal they may apply for it to be reinstated within one month of the date written notice was received or the date of the hearing in which the appeal was withdrawn orally.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

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…

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 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 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

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

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 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 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

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

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

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

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

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 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!

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 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

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

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

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

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… • 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!)

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…

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!)

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 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… Thank you Mark Perlic

Welfare Rights Service