I have a case where the Tribunal has been asked to consider specific rates of DLA at appeal (High Rate Mobility and Low Rate Care). The members accepted the concession to only consider HRM, but took it upon itself to consider all aspects of the care component. The original award of LRC was removed.

To me, the actual evidence suggests entitlement to LRC and LRM and I have been instructed in relation to an application to the OSSC.

My question is whether this could be classed as an error in law. Although the Tribunal has been asked to only consider HRM, surely if there is a potential entitlement to LRM this should be explored?

I had a similar case recently where LRC was removed. I took it to the Commissioner was successful

DLA is a single benefit with two components, and any appeal is technically about the whole of the benefit and not just about one component. Thus it is lawful for a Tribunal to consider the element which is ostensibly not the subject of the appeal.

However any Tribunal which is contemplating the possibility of removing or reducing entitlement to the component "not" under appeal is obliged to give a very clear "health warning" to the appellant to tell him that they do have this power and are not prepared on the case as they see it at present to limit the scope of the appeal. They must then give him the opportunity to consider his position and seek further advice and if appropriate either withdraw hia appeal (which the DWP will probably interpret correctly!) or at least marshal his arguments, talk to a rep, and think about extra evidence. Failure to do so is likely to lead to the decision being set aside.

It is part of the duty of a rep to warn appellants of this possibility and it is never safe to assume that a tribunal will always accept the view of the appellant/rep that only one component is in dispute.

Of course, if the evidence used does not then make the position so blindingly obvious that no reasonable tribunal could come to any other conclusion than that the exisitng award of the one componenet is right, then you could also get your decision overturned by a commissioner. This would ahve to be pretty extreme to be an error of law, as it is not an error of law to take a view that is possible on the evidence, evn though another tribunal might have taken a different view.

It is an error of law for a Tribunal not to give a clear and unequivaocal warnng that it is considering reducing an already existing award, and the apellant can withdraw the appeal at any time before the Tribunal makes its decision

I got the case I mentioned set aside by the Commissioner on that basis even though a (different) chair had refused leave to appeal.(I am awaiting the full decision of the Commissioner at present)

Withdrawing the appeal will not necessarily result in the DWP making a decision themselves to reduce an award because the normal grounds for revision/supersession will still hold. It will not be enough for a decision maker simply to take the view that he agrees with the Tribunal that reduced the award. The DM will need to show that there was a clear mistake as to some primary fact

This might be useful if you want to appeal the issue to the Commissioner along the lines that I did

http://www.rightsnet.org.uk/pdfs/sub_to_cmmr_re_cancelled_award.doc

Thanks for all your assistance. I'll give it a shot.