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Top Decision Making and Appeals topic #3129

Subject: "DWP superseding tribunal decision" First topic | Last topic
Neil Bateman
                              

Welfare rights consultant, www.neilbateman.co.uk
Member since
24th Jan 2004

DWP superseding tribunal decision
Thu 20-Nov-08 11:36 AM

Have come across something I have never encountered before. If DWP are right it has profound implications for appeals.

Client is allegedly overpaid IB and appeals. Tribunals Service ask DWP 3 times for a submission, but DWP fail to provide one. The then District Chairman issues a Direction to DWP to supply a submission within a month and warns that unless this is done by the date fixed for a hearing, that the appeal will be allowed by default in favour of the claimant.

I attend hearing. DWP do not attend, no submission from DWP and not a even phone call to explain why they are absent. Claimant's appeal allowed in full because of DWP's failure to meet the burden of proof as no evidence provided. CDLA/5076/01 cited as authority for the proposition that failure by DWP to attend Tribunal and/or provide any evidence means that burden of proof is not satisfied.

DWP have now superseded the Tribunal decision using reg 6(2) (c) (i) D & A Regs on the grounds that the Tribunal decision was made in ignorance of material fact(s). Effectively, they are bypassing the Tribunal decision by issuing the same OP decision again.

DWP never sought a Statement of Reasons nor applied for a set aside and are now very late to do so.

Can someone cast some light on this?

  

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Replies to this topic
RE: DWP superseding tribunal decision, Kevin D, 20th Nov 2008, #1
RE: DWP superseding tribunal decision, Tony Bowman, 20th Nov 2008, #2
      RE: DWP superseding tribunal decision, nevip, 20th Nov 2008, #3
           RE: DWP superseding tribunal decision, jj, 20th Nov 2008, #4
                RE: DWP superseding tribunal decision, Gareth Morgan, 21st Nov 2008, #5
                     RE: DWP superseding tribunal decision, northwiltshire, 21st Nov 2008, #6
                          RE: DWP superseding tribunal decision, Neil Bateman, 24th Nov 2008, #7
                               RE: DWP superseding tribunal decision, CABbie, 27th Feb 2009, #8
                                    RE: DWP superseding tribunal decision, Kevin D, 04th Mar 2009, #9
                                         RE: DWP superseding tribunal decision, CABbie, 04th Mar 2009, #10
                                              RE: DWP superseding tribunal decision, Kevin D, 04th Mar 2009, #11
                                                   RE: DWP superseding tribunal decision, CABbie, 04th Mar 2009, #12
                                                        RE: DWP superseding tribunal decision, Kevin D, 04th Mar 2009, #13
                                                        RE: DWP superseding tribunal decision, Neil Bateman, 04th Mar 2009, #14
                                                             RE: DWP superseding tribunal decision, CABbie, 04th Mar 2009, #15
                                                                  RE: DWP superseding tribunal decision, CABbie, 11th Mar 2009, #16

Kevin D
                              

Freelance HB & CTB Consultant/Trainer, Hertfordshire
Member since
20th Jan 2004

RE: DWP superseding tribunal decision
Thu 20-Nov-08 12:13 PM

Unfortunately, I haven't had time to research this to any depth. However, the following springs to mind:

1) further appeal, citing the earlier decision and arguing res judicata and, presumably, that there has been no material change etc; or

2) JR - would this now fall within the remit of the Upper Tribunal?


There is a similar provision in the HB/CTB DARs - reg 7(1)(d)(i). Is there any commentary in "Findlay" that may assist?

As an aside, this does appear to be a total abuse of process by the DWP. Sadly, I am no longer surprised by such an approach.....

  

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Tony Bowman
                              

Welfare Rights Advisor, Reading Community Welfare Rights Unit
Member since
25th Nov 2004

RE: DWP superseding tribunal decision
Thu 20-Nov-08 12:44 PM

How can a tribunal be ignorant of, or mistaken to, material facts which were deliberately withheld? In these circumstances, it is for the tribunal to reach a conclusion on the available evidence so I would certainly agree that this is an abuse of process.

I would appeal the new decision but only on the basis that there are no grounds for the supersession. I would argue that if the material fact was posessed by the DWP, who then decided that it was not relevant to the proceedings and withheld it, that the tribunal were not ignorant of it. In this context, the material fact would surely have to be new, such as a previously undisclosed bank account or something that would have materially altered the decision under appeal in the first place. If that decision hasn't been altered (i.e. just reissued as you suggest Neil) then no facts have come to light so there is no ground to superseed.

I hope that makes sense. I know what I mean but difficult to put into words.

  

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nevip
                              

welfare rights adviser, sefton metropolitan borough council, liverpool.
Member since
22nd Jan 2004

RE: DWP superseding tribunal decision
Thu 20-Nov-08 01:01 PM

My initial view quickly ( as I have a client to see) is that the material fact must have since 'come to light' since the decision was made and not one that was known but deliberately withheld from a tribunal. I think that the DWP have overreached themselves here and got the law spectacularly wrong.

  

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jj
                              

welfare rights adviser, saltley & nechells law centre birmingham
Member since
21st Jan 2004

RE: DWP superseding tribunal decision
Thu 20-Nov-08 02:40 PM

the tribunal's rejection of the SoS's case (and the onus was on the SoS's) was made in full knowledge that the case had not been made to the tribunal, and whatever facts the DWP have kept up their sleeves relevant to their revision when it was under appeal would not have been _material_ facts in the tribunal's decision to dismiss because burden of proof not discharged. the DWP's failure to produce evidence and substantiate its case were the material facts on which the decision was based. i doubt that a supersession under 6 (2) (c) can be shown to be valid.

Presumably client has another right of appeal against this decision, but the arguments are likely to descend into farce, and who wants to play these silly games...? Maybe a LBA and JR,,,,

the DWP failed to comply with directions, they have failed to comply with the time limits for challenging the decision, it appears to show complete contempt by the Secretary of State for the Tribunal and your client's right to a fair hearing, and may be an abuse of the appeal process (??) and abuse of power (reg. 6 (2) (c)). i doubt purnell would want to sign his name to it, and would bet that unvetted and out of control decision-making is the culprit...there's some determination here to hit your client with an overpayment even after they screwed up their case and lost it - one wonders what is driving them...

  

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Gareth Morgan
                              

Managing Director, Ferret Information Systems, Cardiff
Member since
20th Feb 2004

RE: DWP superseding tribunal decision
Fri 21-Nov-08 11:32 AM

In the new tribunals there can be contempt .....

  

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northwiltshire
                              

welfare rights officer, c.a.b. n.wiltshire
Member since
26th Jan 2004

RE: DWP superseding tribunal decision
Fri 21-Nov-08 12:22 PM

You should also contact MP and get them involved with a view to getting Mr Purneel directly involved, along with a potential Ombudsman complaint.

  

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Neil Bateman
                              

Welfare rights consultant, www.neilbateman.co.uk
Member since
24th Jan 2004

RE: DWP superseding tribunal decision
Mon 24-Nov-08 12:46 PM

Thank you everyone for your suggestions.

Reg 6(2) D & A regs states that the SoS "may" supersede", so one can argue that there should be no supersession in what amounts to ares judicata which is designed to stop parties relitigating.

It's not inconceivable that DWP might fail to prepare for the Tribunal again, Tribunal then finds in client's favour and DWP supersede yet again and so on ad infinitum. Res Judicata exists to prevent this sort of thing happening.

It's also been pointed out to me that in para 10 of R(SB) 1/92 and para 11 CDLA/7980/1995 it was clearly held that failure by a party to adduce or present the proper evidence at tribunal does not give grounds to supersede a Tribunal decision.

The supersession provision obviously exists to deal with situations where new evidence comes to light (eg person is found to have 17K capital, but then a new bank statement is issued which shows it is really 15K).



  

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CABbie
                              

Mental Health Caseworker, Isle of Wight Citizens Advice Bureau
Member since
27th Feb 2009

RE: DWP superseding tribunal decision
Fri 27-Feb-09 07:45 AM

Is there any update on this?

My thoughts on challenging this would be to argue that what they have carried out is actually an ultra vires revision, but incorrectly labelled as a supersession. In other words a sham decision.

This is because to create a new overpayment they have to change the entitlement award. If they supersede under regulation 6 (2) (c), the supersession takes effect from the date of the tribunals decision. But that can't affect the claimant's entitlement before the time of the hearing, which is what they would have to adjust to reinstate the same overpayment.

  

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Kevin D
                              

Freelance HB & CTB Consultant/Trainer, Hertfordshire
Member since
20th Jan 2004

RE: DWP superseding tribunal decision
Wed 04-Mar-09 07:41 AM

Wed 04-Mar-09 07:42 AM by Kevin D

If they supersede under regulation 6 (2) (c), the supersession takes effect from the date of the tribunals decision. But that can't affect the claimant's entitlement before the time of the hearing

A (genuine) supersession can affect entitlement prior to the date of the Tribunal's decision if that decision relates to an earlier period.

However, Neil's point is that there are no grounds for such a supersession - it is an absolute abuse of process by the DWP in a disgraceful attempt to:

1) get around the failure to provide relevant evidence to the Tribunal in the first instance, and

2) then, with breathtaking contempt, to ignore a Tribunal decision by arrogantly relying on that very failure as the basis for a wholly unlawful supersession.

The CDs cited by Neil confirm with brutal clarity that superseding a Tribunal's decision is not a mechanism that the DWP (or anyone else for that matter) can lawfully rely on where the DWP's own shortcomings in the first instance (may have) contributed to a particular decision being reached by a Tribunal.

When such approaches are adopted by official bodies, it leaves a very nasty taste....

Fortunately, I'm in a good mood this morning . Otherwise, I might have been REALLY scathing.

  

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CABbie
                              

Mental Health Caseworker, Isle of Wight Citizens Advice Bureau
Member since
27th Feb 2009

RE: DWP superseding tribunal decision
Wed 04-Mar-09 08:47 AM

Wed 04-Mar-09 08:47 AM by CABbie

The power to go right back to the date of a change of circumstances only applies to decisions made by the Secretary of State, not to decsions made by a tribunal. Tribunal decisions can only be changed from the date of the decision onwards; entitlement before that is finalised. At least that's my reading of it.

The Department seem to have misunderstood this to mean that any decision made on day X can be changed entirely, rather than merely entitlement from that date. There is normally a mechanism to do this: it's called a revision. Unfortunately tribunal decisions cannot be revised.

  

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Kevin D
                              

Freelance HB & CTB Consultant/Trainer, Hertfordshire
Member since
20th Jan 2004

RE: DWP superseding tribunal decision
Wed 04-Mar-09 09:52 AM

It's a strange provision in that it falls under the head of supersession. But, "superseding" a Tribunal decision can, in reality, walk exactly like a revision. I'm basing this on the HB/CTB provisions which are, so I understand, identical for other benefits, albeit under different SIs.

The provisions in question are:

Reg 7(2)(d)(i) & Reg 8(7) HB & CTB (Decision & Appeals) Regs 2001

Paras 4 & 18 (Sch 7) of the Child Support, Pensions & Social Security Act 2000

Slightly oversimplified, but a decision made under DAR 7(2)(d)(i) in conjunction with DAR 8(7) has exactly the same effect as a revision.

As far as I can see, nothing in the CSPSSA negates that analysis.

  

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CABbie
                              

Mental Health Caseworker, Isle of Wight Citizens Advice Bureau
Member since
27th Feb 2009

RE: DWP superseding tribunal decision
Wed 04-Mar-09 01:03 PM

I see what you mean, I think it was I who was misinterpreting it then.

That's very disturbing as it's hard so see any use for that regulation other than this kind of thing. If your interpretation is right then it's hard to see how the Department has done anything legally wrong, because the regulation expressly allows for it. CDLA/7980/1995 only really deals with grounds for an appeal to the Commissioners.

  

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Kevin D
                              

Freelance HB & CTB Consultant/Trainer, Hertfordshire
Member since
20th Jan 2004

RE: DWP superseding tribunal decision
Wed 04-Mar-09 01:22 PM

In my view, the regulation has a perfectly legitimate use as an anti-fraud / abuse device. Two scenarios distinguish the use of this provision:

1) (Neil's case): Clmt appeals; DWP fails (for whatever reason) to provide info / evidence to the Tribunal that is already in its possession. Tribunal finds for clmt. DWP then "supersedes" on the basis that the Tribunal was ignorant of the very facts / evidence the DWP itself failed to produce, but had available.

2) Clmt appeals; this time DWP properly conduct the case, providing all relevant evidence / info, leaving nothing out. Trib finds for clmt; BUT at a later date, DWP discovers evidence not previously in its possession, that would have materially affected the Tribunal's decision. DWP supersedes on the basis that the Tribunal's decision was made in ignorance of a material fact.


In my view, apparently supported by the CDs cited by Neil, a supersession in "1" is unlawful. However, a supersession in "2" is perfectly proper and correct.

  

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Neil Bateman
                              

Welfare rights consultant, www.neilbateman.co.uk
Member since
24th Jan 2004

RE: DWP superseding tribunal decision
Wed 04-Mar-09 01:29 PM

DWP are preparing a submission on this matter, so it'll be interesting to see what they have to say.

In addition to the CDs I cite above, para 7 of CG/1195/2002 also provides authority that there no grounds for supersession in a case such as this.

I think the legislation only allows for supersessions of Tribunal decisions when new evidence comes to light, not when one party had the evidence and didn't present it. Otherwise we could all ask for supersessions when we think of something after the event...

  

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CABbie
                              

Mental Health Caseworker, Isle of Wight Citizens Advice Bureau
Member since
27th Feb 2009

RE: DWP superseding tribunal decision
Wed 04-Mar-09 03:21 PM

I agree with the line of reasoning. Although the legislation doesn't define ignorance or mistake, it should be argued that parliament intended this to mean "something that was entirely unknown to anyone in authority", not just "something the DWP didn't think was important enough to mention to the tribunal".

  

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CABbie
                              

Mental Health Caseworker, Isle of Wight Citizens Advice Bureau
Member since
27th Feb 2009

RE: DWP superseding tribunal decision
Wed 11-Mar-09 11:52 AM

It also just occured to me that allowing a tribunal to be overturned in this way is surely a breach of Article 6, as the independent hearing is no longer effective in deciding ones civil rights and obligations.

  

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