Hi - any help gratefully received on this! I have a DLA case which I picked up post Tribunal,the client having had their exisiting low rate care and low rate mobility awards(2005 - 2007)removed by the Tribunal whilst trying to get middle rate care (unrepresented.)

The commissioner accepted error of law on several points and set the tribunal decision aside to be reheard locally.

My understanding was that the client, who couldn't face the rehearing due to her MH problems, could withdraw the appeal post commissioner's and pre rehearing locally and on the basis that the Tribunal decision was set aside,have the low rare awards she went into the hearing with, put back into payment.I checked this with the DBC and the appeal service before withdrawing, theu agreed, I withdrew and of course am now being advised by the DBC that because the Commissioner's ruling doesn't in black and white "reinstate" the low awards they won't reinstate from the date of the Tribunal and only option new claim only.

I'm sure they're wrong and I've never had that done on other cases but i can't persuade them. Any ideas gratefully received?

the low rare awards would run out shortly so it's vital i get them to reactivate them and issue renewal forms before the awards run out.

Hmmm...

Just a cautionary note - HB is my background, not DLA. But, I'm not aware that the principles in this situation would be significantly different.

If I understand this correctly, the Cmmr's ruling is, in stark simplicity, simply that the case should be reheard. No finding was made as to the bottom line outcome.

On that basis, unless the Cmmr has directed otherwise, the original DLA award decision stands, as made by the DWP, until / unless either a new Tribunal or the DWP change that decision. The first Tribunal's decision is of no effect - it no longer exists, having been kicked into touch by the Cmmr's decision. Therefore, the DWP can no longer rely on that Tribunal's decision.

Therefore, if the appeal is now withdrawn, it has effectively been withdrawn BEFORE the (relevant) Tribunal hearing. That would appear to leave the disputed DLA decision intact - it could only be superseded if there were grounds for a supersession. The Cmmr doesn't need to "reinstate" the earlier awards - there is (apparently) simply no basis for the earlier (low rate) awards to be superseded.

Or, have I overlooked or misunderstood something?

Hope Paul (Nevip) takes a look at this....

Kevin's logic appears to be correct - original award taken away by a tribunal - the decision declared null & void by a Commissioner - therefore the original award still stands - well, at least until it runs out some time this year anyway?

Was the DM's decision as a result of a renewal application, or the client asking for an increase in one of the rates ..?

Hi Kevin, top of the morning to ya!

I would agree with your reasoning completely. A tribunal merely confirms or overturns the original decision. As the tribunal's decision has been set aside there is no extant decision of a tribunal. Therefore the original DWP decision still stands. There is no superior decision to interefere with it.

Under section 17 of the 98 act, a decision is final until it has been revised, superseded or a decison on appeal is made.

I completely agree that the decison by the tribunal to remove entitlement no longer has any legal power (if it did, what would be the point of appealing to the commissioner?)

So the only decision in place - which is final - is that you client is entitled to benfit and the DWP are talking (insert appropriate swear word)

David

The problem is how do get DBC to recognise this.In every case I have had like this the first person I have spoken to at Blackpool never understands the point. It has always been the case that I have had to go to a supervisor and so on until someone gets it.

"The problem is how do get DBC to recognise this.In every case I have had like this the first person I have spoken to at Blackpool never understands the point. It has always been the case that I have had to go to a supervisor and so on until someone gets it."


I would complain, and ask for details of the relevant legislation guiding thier stance. They won't be able to tell you. Ask for a reply with 14 or 21 days as the client is being denied her treaty right to peaceful enjoyment of her posession (I have no idea if DLA is covered - I suspect so).

If no reply, or satisfactory reply within your stated time limit, send a letter of claim setting out your version of the legislation and, if the client is eligible for legal help, contact the Public Law Project for advice on JR proceedings.

Thanks very much for everyones advice - will go back to the DBC and have another go at persuading them they've got it wrong not me! Charlie

Just adding a bit to what has already been said and agreed to, talking to the workers on the ground (DWP) that after a setting aside by a Commissioner, the only decision that remains in place is the decision that has been appealed against and that that decision carries a right of withdrwal under reg 40 of the DA regs; could be argued as:

1-Sofs makes a decision on either an original claim or on a superssesion etc

2-That carries a right of appeal.

3-Tribunal makes a decision on that appeal.

4-Commissioner sets it aside, s 14 of the 98 Act, and reg 31 of the Commissioners' procedure regs(setting aside). Meaning the first tribunal decision is no longer an officio defacto, and must now beheard afresh as if it did not not exists.

5-The only decision left, is then the the last decision that SofS made.

6-Going round the circle, that brings us back to reg 40 of the DA regs.

Except you're probably by now way over the 13 month absolute time limit for appealing it.