Hi Folks

I seem to remember a commissioners decision that set out the rules and grounds to superseed or review an existing DLA award, anyone know it?

I thought a supersession decision only took effect from the date requested, with a review taking effect from the original award date.

I have a DLA overpayment appeal soon at £30,000, decision states existing award superseeded with a new (No award) decision going right back to the award start date to create the overpayment.

I think the above decision I am looking for said a tribunal could change the grounds used within the review / supersession regs but not allowed to change the review for supersession or vica versa?

Any help accepted!

I do not think this is the case you are thinking of, but you might find CDLA/1823/2004 worth looking at.

Sorry I do not know how to do a link to it but I am sure it will be on Rightsnet.

summary of CDLA/1823/2004 is in briefcase

(full decision @ CDLA/1823/2004)

There are summaries of CSDLA/791/2004 and CDLA/4222/2004 in rightsnet briefcase, both of which highlight the need to identify a ground for supersession.

The summaries include a link to the full decisions available via the www.osscsc.gov.uk website.

Hmmm.....

Usually a supersession will only be effective from its own date.

UNLESS, they have used Reg 6(2)(b)(i) and Reg 7(5)(b) of the D&A Regs to supersede which is a supersession where all of the following can be proved by them:

1. It does relate to the issue of whether the disability conditions were met (see the meaning of "disability decision" and "disability determination in Reg 7A(1)).

2. It is on the of mistake or ignorance of fact. Importantly the mistake or ignorance about a fact must relate to a primary fact and not simply an opinion or inference (ie it is not enough that they have taken a different view of the same evidence- they must point to some basic fact of which they were ignorant or mistaken when the awarding decision was taken).

3. The claimant could reasonably have known the fact in question AND that the decision on the disability test was wrong.

If the decision was revised under Reg 3(5)(c) then they will also need to show the above 3 points.

Of course if the reason they got the decision wrong was not related to whether the disability test was met then they don't need to show point 3 above.

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R(IB)2/04 is the definitive position on what a tribunal can and cannot do. It is clear that a tribunal can swap a revision for a supersession and visa versa.

For the distinction between primary and secondary facts see R(S)4/86