friday afternoon n my head hurts

cl haas had MRC foir child since he was born. 11/02 won an appeal against refusal of renewal, MRC re-awarde for period 02.02.02 - 02.03.05

2.04 cl applies for supersession to increase MRC, decision made 3.3.04 gives y16 outcome, DM superseded tribunal's decsion of 14.11.02 and awarde MRC from 2.2.04 to 2.3.05 - remainder of tribunals award.

-> DM has made a new decision - supersesssion - but left award wholly unaltered.

cl appealed this decision and at hearing 9.04 trib not only disallowed the appeal but made decision to supercede decision of 3.3.04 cancelling entitlemnt from tht date on the grounds tht the ss decision was made on self-assessment which trib felt to be ignorance of the true condition.

confused? i knoww i am - wht i wondering is if the DM was wrong in making tht decision in 04 can the trib's supersession of it be an error in law?

cl since reapplied and son now on HRC

The DM was not wrong to superseed the tribunal's decision even though the award never changed. This is an 'anomaly' that comes from the early days of the SSA1998 and DMA - it's called 'superseeding at the same rate'. The alternative was to refuse to superseed but wouldn't give a right of appeal. I'm not sure if that still stands - the commentary to reg6 in Rowland and White seems contradictory by my reading. Anyway, that decision is fine.

I'm not too sure about the tribunal's decision. My first thought is that the decision is OK. It's always been known that tribunals have the power to decrease (or stop) an award, as well as increase it. Assuming this to be case (but see below), there may be some flaws in the decision. Were the tribunal in posession of the same facts and informaiton as the DM, when making the decision of 3/3/04? Was the claimant given an opportunity to make representations when the tribunal felt inclined to remove the award? Were the tribunal basing thier decision on the state of the claimant at the hearing, or at the date of the decision - if the former, then that would be wrong. Weighing up all the evidence available, could the tribunal's decision really be justified?

I'm thinking from the top of my head, and it may be that others could give some more ideas on putting together error of law arguments for this situation.



My second thought is the the tribunal's decision is flawed. You say that they removed entitlement from 3.3.04. This would seem to indicate that they superseeded wholly afresh off thier own backs; otherwise, the effective date of the decision would have been from Feb 2004. This seems to me that the tribunal are saying there was a relevant change in circumstances on 3.3.04 - which does not marry up with the stated grounds. If this is the case, then I reckon the tribunal have got it wrong.

Don't forget that any appeal to the commissioners is late. See reg 58 SS(DA)regs and the notes in Rowland and White. It may be that the subsequent award of HRC could give added strength to a late application.

by jove i think we've got it

the appeal papers for this hearing in sept 04 included past claim info. the trib have relied entirely on the information submitted in the supersession request as "self assessment" and as they found nil enttiletlemnt due to exageration by his mum at the appeal, have jusstified the removal of award from the supersession date

BUT - the dm took stock of the s/s info and made a decision to supersede but not alter the earlier trib's award.

the statemnt of reasons has no comment on the past information used to make this earlier award, which i will argue they should have given full consideration to as the DM had this in mind when superceding (unrevised) tht tribunal's decision.