Very late this afternoon I had this case referred to me by a Social worker who is as baffled and infuriated as I am - the scenario is as follows:-

Parents have Downs syndrome child now age 4 - because of the care that the child needs, Mum gave up a very well paid job to be at home for him - they applied for DLA about two years ago - got turned down, and went through to appeal which they apparently lost as well. They reapplied again six months ago with the help this time of the Social Worker and were awarded high rate care.

They then wrote to Blackpool, ask what would be the chances of getting the award backdated - this resulted in Blackpool sending an EMP out to see them and I assume the child. the next thing they know, they get a letter in the post yesterday revising the award to low care only.

As the Social Worker pointed out The request for possibly backdating could not possibly be taken for a request for a reconsideration or supersession - it was only a general query as to whether backdating was possible.

My thinking is that a DM thought the award decision was wrong, which at that point was only his view - he had no grounds on which to initiate a recon etc - but to provide himself with the necessary grounds he sent out an EMP hoping to get a report favourable to his viewpoint - he then has the EMP report as the necessary "changes of circumstances" on which to attach a supersession.

I cannot see any other explanation for what has occurred - However, wasn't there a Comm decision once upon a time to the effect that a DM should not go looking for evidence? I'm seeing the Mum next week, but in the meantime I'd appreciate any views etc..........




will someone confirm my initial reaction that they can't do this........

I think that recent Tribunal of Comms decision on Tribunal powers to revise/supersede had something to say about this. Basically it said that a DM couldn't revise downwards when claimant had requested revision upwards. However, they went on to say that a DM could initiate a revision on their own initiative which means that, practically, that isn't much use.

There obviously still has to be grounds for a revision/supersesion. Even though Trib can remedy failure of DM to identify one they still have to say what grounds they have used instead.

I think it is very unlikely that there is likely to be a change of circs in the short term in a child with Downs Syndrome. However, if initial award some time back may be possible. Perhaps more likely there is poss of mistake as to material fact etc.

Its worth a read of the Trib of Comms decision, even though it will prob take you all day (over 60 pages I think). Last but one (I think) Welfare Rights Bulletin provides some helpful pointers to the interesting bits if you don't have time for the whole lot.

There is a summary of the tribunal of commissioners decision in CIB/4751/2002 in the briefcase area of rightsnet, together with a link to the full decision.

I think they can do this if the DM initiaited a re-consideration within one month of the original decision, as it would be an 'any grounds' revision then. See Social Security & Child Support (Decisions and Appeals) Reg 3 (1) (a)- Rowland pg. 516.

The secretary of state (as they never tire of telling you in periodic enquiry cases) has the power to make enquiries about entitlement to benefit. So they decide to use that power and send out an EMP. The EMP, as usual, finds that there are less care needs than the current award. THe DM them supersedes the award to the lower rate. So far, so good for the Secretary of State.

However the DM has to show the grounds for supersession. As Andy says above it is highly unlikely that there has been a change in cirumstances. A new medical opinion is not a change. If the DM says that the original was made in mistake of material fact, then the same point arises. What is the material fact that the original DM was ignorant of? The EMP's opinion of care needs is not a fact but an opinion.

You might want to quote the Wood vs Sec of State for Work & Pensions case. Which basically says that the outcome decision (to reduce benefit) must flow from the grounds of revision/superssion. Therefore the change in circs/mistake in material fact identified must be one which actively leads towards a reduction in award.

Above all, appeal the decision and make them justify their actions before a tribunal.

Rant over and good luck

David