Just received an appeal bundle for a DLA case. Cl was in receipt of mid rate care and low rate mob due to mental and physical health problems. Cl's award was reduced to Nil mobility and low rate care on renewal. In the "Reasons For Decision" the decision maker states, confusingly...
'Not awarded as previously as do not agree. No grounds to change last decision'

Is it just me or does that make no sense? If there are no grounds to change the last decision then the award should carry on as before. If the dm doesnt agree with the last award but doesnt want to revise/supersede it then tough. The duty is to make a decision on the claim in front of them. Cl now has increased physical problems but the dm didnt contact GP, Psychiatrist or Heart Specialist.

As it is a renewal claim then there is no need to show grounds for revision or supersession- it is simply a decision on a new claim.

A decision maker is entitled simply to take a different view of the same evidence on renewal and make a different award: as they have done here.

Thus the Decision Maker is simply saying: "I would not have made that award myself last time on the basis of that evidence, however the Decision Maker who did make that award was entitled to do so- s/he was not in ignorance/mistake of fact nor was s/he in error of law etc".

(R(M)1/96 - I think)

The only extra protection that a renewal decision gets is:

1. A tribunal refusing to renew at the same rate should make it reasonably easy in its decision for someone to understand why they have not done so- failure to do this might constitute inadequate reasoning and be in error of law. Thus if the tribunal comments "we did not agree that previous evidence justified the award that was previously made but that was not an issue before us...." they would probably be fine.

2. A claimant may be able to rely in an appeal on the evidence for the previous award (particularly if they can establish that their condition has not improved etc)..... however that does run the risk of a Tribunal saying- "yes but the previous award was not, in our view, justified on that evidence".

..... sorry just to clarify:

Maybe a helpful way to think about this is to remember that two Decision Makers/Tribunals could make different decisions on the same evidence and both decisions could be legally correct (see Moyna etc).

"I would not have made that award myself last time on the basis of that evidence, however the Decision Maker who did make that award was entitled to do so- s/he was not in ignorance/mistake of fact nor was s/he in error of law etc". <=== Now THAT makes it obvious!

And if s/he had put it in those terms it would appear fair. As the note stands it looks as though the dm, by ignoring the evidence of a deterioration in cl's condition, is making the decision based on the previous claim and not the one in front of him/her. DMs also have a duty to decide a claim after evidence gathering not just ignore information!