Client was receiving DLA HRMC and MRCC. Following surveillance, an EMP report was obtained and benefit was withdrawn on basis of report. DWP are claiming O/P on basis of failure to disclose material fact of change of circumstance from start of video evidence.

On evidence, I can argue for ongoing award of LRCC. I believe original award was a mistake; evidence obtained then from GP and from EMP now show pretty similar picture, and support LRCC. The only change of circ identified by EMP is a *deterioration* in client's condition.

I think the client's answers to claim pack would fall under 'statements of honest opinion" as per CDLA/5803/1999, and there has been no suggestion by the DWP of misrepresentation by the client.

I want to argue that there has been no change of circumstances so no failure to disclose, no o/p. Also that the client has been and continues to be entitled to LRCC.

Am I correct in thinking I need to ask for original decision to be revised and that error of fact is grounds for a review? Which legislation does this type of revision come under (I am looking at The Social Security and Child Support (Decisions and Appeals) Regulations 1999 and getting confused!

If the DM is usin mistake/ignorance of material fact then he/she will be using reg 3(5)(c) of the decisions and appeals regs to revise the award and 'create' the o/p.

" (c) where the decision is a disability benefit decision, or is an incapacity benefit decision where there has been an incapacity determination (whether before or after the decision), which was made in ignorance or, or was based upon a mistake as to, some material fact in relation to a disability determination embodied in or necessary to the disability benefit decision, or the incapacity determination, and

(i) as a result of that ignorance of or mistake as to that fact the decision was more advantageous to the claimant than it would otherwise have been but for that ignorance or mistake and,

(ii) the Secretary of State is satisfied that at the time the decision was made the claimant or payee knew or could reasonably have been expected at the time the decision was made to know of the fact in question and that it was relevant to the decision,".

If however they are alledging failure to notify change of circs then they will be using reg 6(2)(a)(i) and 7(2)(c)(ii) to supersede the original decision.

I'm not sure if you've appealed the decision or at the (usually useless) reconsideration stage.

I would argue that the onus is on the DM to show the material fact that was he/she was originally mistaken/ignorant of. If there is no such fact then the original award stands unless a later change of circs is found.

I would then argue that a different medical opinion is not a change of circs, see R(S)6/78, R(M)5/86 and CM/431/1991. Again if no change of circs can be identified then the original award stands.

Finally if the DM/tribunal decides that there are grounds to vary the award (either to nil or reduce it) then any o/p should not be recoverable as your client could not reeasonable have been expected to know that there was an o/p.

Sorry this is a bit rambling but basically I wouldn't go in conceding that the original award was wrong. Make sure the DM discharges the burden on them

David

See CDLA/1823/2004. This deals with revisions/supersessions of DLA awards on the purported ground of change of circumstances.

A summary of CDLA/1823/2004, together with a link to the full decision, can be found in the briefcase area of rightsnet.

(NB - the above link will not as work from next Monday, 23 May, when our new briefcase area will will be launched with subscriptions, providing fully searchable and cross referenced summaries of key commissioner's decisions added to the Social Security and Child Support Commissioners' website)

Thanks very much for these pointers. I have not been able to locate CM/431/1991 so if anyone has access to it, I would be grateful if you could let me know.