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Another leap query
I have an appeal for a client resulting from the leap exercise following the decision in MM. (prompting v social support in PIP activity 9). Since 2019 he has had an award of the enhanced rate of both components but prior to this had only the standard rate of daily living component.
The effective date of MM is 06/04/16 but the DWP did not amend their ADM guidance until September 2020.
His award at the effective date included 2 points for activity 9 and from the evidence considered by the DWP should have been 4 points, which would have given him the enhanced rate of daily living component. They have of course refused to supersede.
I’m happy enough about where to go with that, but he’s also raised the question of mobility activity 1 and the RJ and MH decisions. Between the DWP changing their guidance in June 2018 to reflect the findings in RJ and MH and the decision giving his current award he has had four decisions on his PIP claim, including one mandatory reconsideration and a RJ/MH leap refusal to supersede. He did not appeal any of those decisions.
Do the earlier non-appealed decisions which should have had regard to RJ and MH stop the tribunal from considering afresh the effect of those decisions on mobility activity 1 ?
Do the earlier non-appealed decisions which should have had regard to RJ and MH stop the tribunal from considering afresh the effect of those decisions on mobility activity 1 ?
I don’t think the previous decision making matters very much. I think the more fundamental issue is whether you are entitled to take points relating to activity 1 at all on an appeal like this. Your appeal is against a decision to refuse to revise/supersede earlier decisions for error of law on the question of their compliance with MM. Are you allowed to use that appeal as a springboard to argue that the decision(s) were in error of law for some completely unrelated reason?
Perhaps you might say that the MM review was considering revision for official error, and that once that door is opened, you are entitled to make whatever official error arguments you like. However the DWP might say that the jurisdiction to consider the appeal is limited to those matters which were actually put to the SSWP in the original request (/self-prompted review). I think PH and SM v SSWP [2018] UKUT 404 (AAC) could be read as supporting (or at least not contradicting) either view.
A point in your favour is that if the appeal were confined to just looking at the errors which had been explicitly raised then when the appeal was decided, it would be imbued with the magic of being an FtT decision and therefore couldn’t be revised again if it were shown to be affected by some other error. So from that perspective, it makes sense to allow the FtT to resolve all asserted errors.
[ Edited: 10 Feb 2022 at 08:14 pm by Elliot Kent ]Thanks Elliot, very helpful, especially the caselaw.
On closer reading of a very large bundle my client only sought a review due to MM and activity 9. When the DWP eventually made a decision it didn’t mention either MM or activity 9, only MH and RJ, and mob 1.
The mandatory reconsideration mentions all three UT decisions, but has two pages of waffle about MH and RJ and one sentence about MM. As a result of this my client, who did the SSCS1 himself, mentions mob 1 as well as daily living 9.
The DWP’s response is no better and doesn’t even correctly identify the decision under appeal.
Do the earlier non-appealed decisions which should have had regard to RJ and MH stop the tribunal from considering afresh the effect of those decisions on mobility activity 1 ?
Perhaps you might say that the MM review was considering revision for official error, and that once that door is opened, you are entitled to make whatever official error arguments you like. However the DWP might say that the jurisdiction to consider the appeal is limited to those matters which were actually put to the SSWP in the original request (/self-prompted review). I think PH and SM v SSWP [2018] UKUT 404 (AAC) could be read as supporting (or at least not contradicting) either view.A point in your favour is that if the appeal were confined to just looking at the errors which had been explicitly raised .
I have a case on exactly this point going to the UT. I shall try and remember to report in the outcome, I’m waiting on the decision whether to grant permission by the UT