Hi all.
Bit of a weird one this.

1. If a claimant appeals against a decision revising for official error (and giving them an increase in benefit) in order to try and get even more benefit CAN A TRIBUNAL SAY THAT THERE WAS IN FACT NO OFFICIAL ERROR? I am aware that there is no appeal against a refusal to revise for official error- this is the opposite (kind of). I know from CIB/4751/2002 that Tribunal can chop and change as they see fit for revision/supersession - does this extend to them overruling the Sec of State view that there is an official error? (seems a bit rude that a Tribunal can say there is no official error on appeal of this sort but claimant could not even get a case where the DWP refused to revise for official error to a Tribunal).

2. IF DWP accept an official error occurred in as much as the evidence they had many years ago meant they should have awarded the lower rate mobility component and go on to revise to pay that for many previous years CAN the claimant on appeal argue that this opens up the whole of the decision revised such that he can get a higher rate of care component from many years ago also? In other words does the outcome decision following from a revision where the ground was official error have to follow the ground (eg can the decision only be altered in line with the error- so that the decision given is as the decision would have been had that error not been made).


Sorry if above not too clear, any replies appreciated.

Martin.

I am not 100% sure of my ground (sic), but the way I see it is that a Tribunal would have no jurisdiction to make a judgement as to whther or not there had been an official error, and must only consider the decision as revised.

When looking at the revised decision it will be looking at that decision afresh and can make any determinations of fact that it considers to be relevant and come to whatever overall conclusion it sees is appropriate.

It must of course give adequate reasons, but it could come to a conclusion that is disadvantageaous to the claimant. On the other hand it could come to a conclusion that is more advantageous to the claimant than the decision under appeal.

I'm feeling a bit hard of thinking today but I'm finding this very hard to follow - do you not have an example so we can look at the facts of the case (even if they're changed a bit)? I just can't get my head around 1. at all.

But 2 is nearer to home for me. If it was true then every case where there was evidence to show a higher (or any, I suppose) rate of DLA longer ago than normally possible to revise or appeal could be challenged. Surely the real problem with DLA is that WE always know (or is that think?) that we're right but that the DWP can't see the nose on their face / read the forms / whatever and make incomprehensible decisions bearing little relation to the facts? On that logic could I go back to an appeal I lost four years ago and now say "Hang on, please read my GP report again, surely that's an official error?"? I think not.

I don't think you'll ever get anything other than a supersession decision from date of application, unless exceptional circumstances apply.

By way of example. Client with child on HRC. On renewal reduced to MRC day supervision, but client clearly states night time needs on form. Client requests revision turned down, but letter notifying her is lost in Xmas post 2001. Comes to me for help 2003. Get supersession on current claim back to HRC from 2003, make ex-gratia request for 2001 (having tried reg 3(5)(a) before in a case with very obvious errors before and got ex-gratia 12 months plus later I missed out that step this time), refused 3 times each time turning the screw / realising I'd missed out best parts. Referred to Parliamentary Ombudsman refer back to DWP who eventually issue a 'duplicate' revision decision apparently allowing fresh appeal rights (although I believe this when I see it frankly).

But, no reg 3 5 a in sight.

Sorry if this is nothing to do with your post Martin, I'm just struggling to understand it.

Hi Andy & Stainsby, thanks for the replies.

Don't blame you for not being able to understand my post- I barely understand the case myself....

Anyway the situation is as follows:

1. Claimant was getting LRC for DLA since 1994.

2. They put in a supersession application on basis of worsening needs.

3. As a result the DWP look at the decision again. The DWP decide that the 1994 decision was made on the basis of official error (as the only conclusion that should have been drawn from the evidence available at the time was an award of LRM was also appropriate). DWP hence refuse to supersede and instead revise with effect from 1994 to include the LRM within award from that date.

4. Claimant appeals against that decision (on the basis that he wanted MRC and possibly HRM).

HOWEVER, looking at the papers I am not at all confident that the DWP are right to say there was an official error- I think a DWP DM could easily have not awarded LRM on the evidence available (Hence my question about whether the Tribunal can say there was no official error and it should not be a Reg 3(5) Decision.

ALSO, when we argue for the increase in the care component do we argue that this should also have effect from 1994 (despite the fact that the official error, even if it did exist, certainly did not relate to the level of care awarded).

Martin

I still thjink it is not open to the Tribunal to decide that there has been no official error, it only has jurisdiction over the decision under appeal.

I think you can argue that middle rate care should be awarded from 1994 since the decision as revised is a new decison on the DLA award as a whole, but the Tribunal will have to decide that on the facts of the case, and it will be free to consider all the facts down to the date of the revised decision

Can't you just withdraw the appeal and make a new request for a supersession of the (revised) decision? And if that's refused, appeal the refusal? Doesn't this effectively put the client back where he started from with his first supersession request, ie on the basis that his care needs are greater now than in 1994. This would leave the 1994-now award alone, and the LRM back money is then just a bonus.

Well in doing that we would give up our chance to argue that the care needs were wrongly assessed in 1994 (ie our chance to open up the fact finding/law applying process to 1994 to get him MRC back to that date). Seems to me that we might as well hold on to that chance- as in any event he has already been paid the LRM back to 1994 so has nothing to lose from continuing.

Sorry Stainsby: thing seems to me to be that although there is no right of appeal over refusal of official error revision surely that is simply due to the operation of time limits in D&A Regs (that is the basis of the decision in CIS/4/2003 (hope quoted correctly)- that says nothing about whether a Tribunal faced with a case where the DWP had argued they could revise on that basis could disagree and instead do a supersession (for example) on some other ground. As I understand it a Tribunal has power to replace one sort of decision under appeal with another sort of decision- why not in this case?

i'm inclining towards Gerry's view, but not at all sure i'm following this...
does the evidence from 1994 support an award of middle rate care and an official error in the award of LMC? you say the OE doesn't relate to the care side. what you would have thrown back at you is that he applied for a supersession on grounds of worsening in condition, also he did not appeal the LCC at the time of award?

if you now argue it should have been MCC all along, and unless you have an exceptionally good relationship with your tribunals, i'd expect it to be very sceptical and be looking for grounds to turn it down, not least for making them consider a 10 year old award and that decision about revisions/supersessions! not that i'm suggesting it would allow any hard feelings to influence it, of course. you think the official error ground is dodgy anyway.

i take your point about he's got nothing to lose, even of it decided that the official error revision was wrong, but is there a risk of making the tribunal hostile to him qualifying for MCC now?

on the other hand, if it was one of those truly atrocious decisions, and the evidence supports the case, they seem to have given you the opportunity to re-open it. once the can is opened, the worms can crawl unrestricted. i don't know if i'll ever fathom the dreaded CD, but it does seem to give the tribunal the power to substitute its own decision where it considers the DWP have made a mess of it.

jj

Have they actually paid the LRM yet?

A decision to award (or not award) any component of DLA is a single decision regarding the whole award, the award of the individual components are determinations embodied in the substantive decision. This is why it can be often so dangerous to seek a supersession re one component as it can open up the possibility of a disadvantageous decison re the other.

The Tribunal of Commissioners ruled in CIS4/2003 that there is no right of appeal against a decision not to revise for official errror. It is true that the appeal had been brought outside the 13 month time limit, but I think tha rightly or wrongly, the Commissioner have decided that the right of appeal lies against the original decision either as revised or not revised.

If the decision is revised, then there is a right of appeal against that decision whether it is advantageous to the claimant or not. There is nothing as far as I can see in CIS4/2003 to sugggest that the right would be only against a disadvantageous decision.

I can see that a Tribunal may be hostile to re-opening a case going back 10 years in Martin's case, but the DM is the one that has opened up that possibility, and it is just one of the quirks of the revision/supersesion process, but I think the right is still there simply by virtue of the date the decision was revised by the DM.

The danger is that the Tribunal could rule that the revised decision is wrong and substitute its own decision that is disadvantageous to the claimant.

Of course as a rep you will have to explain the risks to your client based on the facts as you see them

1. The outcome decision from the Tribunal any more cannot be practically disadvantageous to the claimant whether we pursue the go back to 1994 route or not... they have paid the LRM already.

2. I agree with Stainsby I think- we can open it up back to 1994.

Just to add complication to an already twisted plot..... we will also be arguing that the 1994 decision can be superseded and that the effective date should be 21/4/1994 (date of the Mallinson decision). The 1994 decision in our case was given on 18/4/1994 (3 days prior to Mallinson) and clearly does not take full range of assistance in connection with seeing and hearing into account (claimant blind and deaf).

Grrrr..... answering my own query but hey (and with the help of Ken).

Apparently in CDLA/1821/2003 a Commissioner has already decided that a Tribunal CAN substitute an official error revision for a supersession decision (and it follows from that, that a Tribunal could do the opposite and substitute a supersession for an official error revision).

So basically although there is no appeal against a straight forward refusal to revise IF there is a supersession decision that alters benefit etc. on appeal the punter can ask the Tribunal to consider whether it should have been an official error revision.

At para 5 of CDLA1821/2003 the Commissioner wrote:

"...a tribunal can, and in appropriate cases should, consider whether there has been an official error when the Secretary of State has not decided the point. Further, there is no time limit on such consideration."

The Tribunal can only consider the point as to whether there has been an (earlier) official error if the decission that embodies that error is under appeal, and the secretary of state has not considered the point.

If the SOS has already decided that there has been an official error, and has issued a revised decision, then the Tribunal only has jurisdiction over the decision as revised, not over the original issue as to whether or not there had been an official error.

That is not to say that the Tribunal could not rule that there are any number of errors in the revised decision and correct them. Whatever new decision is made by the Tribunal, I think it will have to be a revision rather than a supersession