A decision has been given in cases where the claimant was represented by LASA that may be of interest: CDLA/1707/2005 and CDLA/1708/2005.

In the first of these linked cases the Deputy Commissioner has held that an Appeal Tribunal has a power, where the Secretary of State has not considered the issue, to revise for official error.

This ties up a lose end in the legal analysis of the powers of a tribunal as it is the first decision where the statement that a tribunal can do this is a binding part of the decision.

It approves the obiter comments of Commissioner Williams in CIS/1821/2003 and disagrees with the obiter comments of Commissioner Rowland in CDLA/4099/1999.

Example:

1. 2003 Claimant awarded LRCC.

2. 2005 Claimant applies for supersession and is given HRMC as well from 2005 on basis of change of circumstances. Secretary of State does not make any comment about revision.

3. Claimant appeals (as she wanted MRCC also).

4. Looking at the Appeal Bundle it is absolutely clear the facts found in respect of mobility on the 2003 decision could lead to no other conclusion that virtually unable to walk. That decision is therefore made on the basis of official error. Or there is some other error that amounts to an official error.

5. The Appeal Tribunal can revise the 2003 decision and award HRMC from the 2003 date.

The decision is also interesting in that it contains an example of facts found in relation to HRMC of DLA that can lead to no other conclusion than virtually unable to walk (ie binding part of the decision is that any tribunal finding those facts would have no other option but VUTW).

I will ask Shawn/Ken to post a link to the decision.

Here is the link:

http://www.rightsnet.org.uk/pdfs/CDLA_1707_2005.doc

Martin

i plan to use the above decision at an appeal at the end of the month. I would like to see CIS/1821/2003 and CDLA/4099/1999 referred to above, but haven't been able to locate them.

can you provide a link for those decisions?

thanks

Hiya,

Both on the Commissioner website:

CIS/1821/2003 is here:

http://www.osscsc.gov.uk/aspx/view.aspx?id=1371

and CDLA/4099/1999 is here:

http://www.osscsc.gov.uk/aspx/view.aspx?id=1856

Good luck with the Tribunal.

Martin.

I must have been half asleep when searching for them! thanks.

The scenario here is:

1. 2004 Client awarded LRCC for 2 years.

2. 2006 Client lost LRCC on renewal. Client appeals that decision.

3. Appeal bundle shows 2004 LRCC award based on EMP report.

4. EMP in 2004 also stated, under the LRMC part, "Supervision need because she is anxious and panicky - becomes physically sick when outdoors". No award of LRMC was made by the DM in 2004.

5. Tribunal later this month to be asked to revise 2004 decision for official error.

i'll let you know what happens.

Hi Paul,

One problem in your case may be whether the Decision Maker in 2004 adopted the findings of the EMP report on LRMC that you report. This may be apparent from the (usually rather brief) reasons for decision in 2004 if they are included in the bundle.

(the nice point about our client's case in CDLA/1707/2005 was that the decision maker in the decision we argued was in error of law had very clearly adopted the findings of the EMP on mobility in his short statement of reasons for the decision)

If the DM in 2004 did not find the EMP opinion as fact but instead found some other facts which s/he was entitled to draw from the evidence at that time then it could be difficult to sustain an argument that there was an error of law in that decision.

However, if the DM in 2004 did adopt the EMP findings or simply does not refer to the EMP opinion on mobility or otherwise seems to overlook it then it should be a runner.

Good luck.

Martin.

Following up this thread there is now a fairly authoritative decision from Commissioner Mesher - CDLA/393/2006 - on OSSCSC site.

The decision accepts that Tribunal's have the power to revise for official error, as does the Secretary of State in his submissions. The power is said to arise when a decision is Wednesbury unreasonable, ie. a decision which no Decision Maker (or AO) properly instructed as to the law could have reached on the evidence before them, which seems about right.

Mesher emphasies however that official error requires that no one else contributed to the error, and finds on the facts of this case - Downs syndrone adult not awarded middle care - that an inadequately completed claim pack was a contributory factor. Result - no backdating.

We recently won at Tribunal, using just R(IB)2/04 AND R(IS)15/04, on a case of a profoundly deaf BSL user who was only awarded lower mobility on a claim made as a result of the Fairey decision in the House of Lords. Claim form had lots of details of communication needs. Middle rate care awarded back to 1997. DCS are considering an appeal.

Possible remaining issues include:
- how can it be shown that revision was not considered by the DM in any particular case? Arguably if they supersede they have decided not to revise, which would remove the Tribunal's ability to consider revision
- is the Wednesbury unreasonableness test appropriate?
- the boundaries of such unreasonableness.

In the mean time I would provisionally suggest always considering revision when there has been an apparently unreasonable DLA award or refusal in the past but never ever asking for it before Tribunal stage!

Richard Atkinson
Senior Adviser
Wirral Welfare Rights Unit

Here is a link to CDLA/393/2006, the decision Richard highlights in his post -

http://www.osscsc.gov.uk/aspx/view.aspx?id=2036