I have a case at the moment where we are requesting leave to appeal to the commissioners against the decision to consider a component not appealed against (HRM) which was removed despite EMP supportive evidence and other medical evidence in the papers. I have had quoted to me that they can only consider the non appealed component if there is something in the papers available TO THE DECISION MAKER, not the tribunal, to suggest that the non appealed award was incorrect ie if a case was adjourned for an EMP report and there was something in that it would not be enough to justify looking at the other component, it has to have been before the DWP decision maker. THis claimant had HRM/HRC for 9 years and Care went down to LR on renewal. Does anyone know what case law is being referred to.

A tribunal can remove the unappealed component if, on the proper exercise of their discretion to do so, this seems correct.

That would, I think, be even in a case where the Tribunal was basing its decision that the unappealed component was wrongly awarded on information that had not been before the DM (for example a medical report submitted after the appeal made that helped for care but referred to the client's mobility in unhelpful terms).

However, the usual issues would apply (as in R(IB)2/04):

1. Does the Tribunal statement show that they were aware they were exercising a discretionary function (many tribunal statements will overlook this point, in my experience, and simply say they removed the mobility but not make it clear that they knew they had a choice).

2. Have the requirements of fairness been met? Was the claimant put on notice that the unappealed component would be looked at? Was an opportunity for adjournment given to allow the claimant to prepare the mobility case (if this was necessary for fairness)?

To this you could add (I think):

3. Does the Tribunal statement show that they exercised their discretion to look at an unappealed component in a judicial fashion (ie did they take into account factors they should not have done in deciding to look at the unappealed component)?