I would appreciate any views on this situation please:

On 20 July, I wrote for a supersession of my clients DLA award (MRC to HRC), not knowing that a renewal claim decision has reduced the entitlement in March - effective from August. The client didn't know either as never received decision notice).

When I did find out, on 18 August, I wrote to DLA amending the request for a supersession to a late revision of the earlier decision.

The DM has said that my request to amend the request for a supersession is refused. I believe that is wrong.


I've checked the regs and the SSA. The law specifically provides that a CLAIM or an APPEAL may be amended or withdrawn, but is silent on similiar applications (ie those for supersession or revision). Does anyone know what the legal position is here? Might it rely on other bits of law...?

My concern now is that the DLA section go on to make a supersession decision. That would create something of a mess (and give us all loads more work! ...why are they blind to that...???). If the previous decision is superseeded (whether or not that results in a changed award), it would be no longer open to a review or late appeal - would it?

In an effort to prevent a supersession decision being made I have faxed a strongly worded complaint about the DCS's approach, but what if they stand by their position and make a supersession decision? Where do we go from there?

As usual, any and all contributions most welcome.

Thanks,

Hi Tony

Have I grasped the facts correctly? Client has DLA award for fixed period. On 20/7 you requested supersession of that awarding decision presumably based on change of circs.

However, there was a decision in March that client’s award changed (detrimentally) effective from August. You are now asking if the Department can treat the supersession application as a late revision of the March decision?

Well, there is a power under reg3(10) of the D&A Regs to treat a supersession application as a revision application. The question is: is that power wide enough to cover a situation where the supersession application relates to a different decision (the original warding decision) that the revision application decision (the March decisin) would relate to?

There is nothing in the regs that I can see that prevents the Department from amending the supersession application before a decision is made on it. I have often had clients withdraw supersession applications (another of the points you refer to).

If they refuse to budge then the only scenario left is to make a separate application for a late revision of the March decision. Then there will be a new decision on the original supersession application, which will start the clock running for appeal against that decision from the date that the decision is notified to the claimant.

However, the principle of res judicita (as it applies to decisions) will mean that that appeal will only be concerned with the period up until the decision in March. If the supersession request was based on a change of circs then it can only be effective from the date of the change if notified within 1 month, or longer if allowed und reg 8. Thus the appeal would be pointless if the change occurred after the March decision.

Forgive me if I have misunderstood you.

Regards
Paul

Hi Paul,

Thanks for your reply. Yes, you have understood correctly.

This is very confusing, but I think I'm getting there, if I have understood you correctly. Methinks I might be getting in a fuss over nothing? As you say, the supersession would be against the current awarding decision (ie NOT the renewal) and only effective up to the end of the current award (last month). So that means, a seperate request for a late review (or late appeal) against the renewal decision would not necessarily interfere with the supersession request as any change would only take effect from the start of the new claim.

We can deal with the res judicata issue by appealing against both outcome decisions on the supersession and late review, or by not appealing a favourable supersession decision and appealing a not-favourable late revision.

I think I went wrong in believing that the supersession request was IRO of the renewal decision, when it is actually against the old awarding decision.

Do you agree?

Thanks again,

Tony

Hi Tony

Agree completely.

Paul