Scenerio - Client has had award of low rate care component DLA for over five years - no mobility. Last year his mobility needs increased to the point where he asked them to look at award again with a view to qualifying for DLA MOB. Usual letter sent with forms stating he didn't need to complete care needs section of claim form if he was only asking for mobility tobe looked at. Therefore he did'nt.

Application was turned down, and decision only related to mobility.
Client appealed the mobility decision - Tribunal papers did not obiously have the care component claim section included in them as one had not been completed, and the Sec of State's submission also made it clear the mobility was the only issue that he wanted the Tribunal to look at.

On the day however, the tribunal took it upon itself to consider both components, in the case of care solely on the verbal evidence of the claimant. The decision was an award of high rate mobility, but with the low rate care award being cancelled from the date of the hearing. OK, I know that a tribunal can look at both components, but in view of the fact that DBU were not challenging care award and nor was the S of S, is the tribunal right in doing this?.

Wouldn't normally ask the question, but I can't remember the last time this happened to one of ours - we are still waiting for the statement of reasons and notes of proceedings which might be interesting....

Mike,
I experienced a similar Tribunal some time back and appealed to Commissioner on the right of the Tribunal to look at an unchallenged award. The Commissioner deemed that the Tribunal had erred in law by not giving fair notice to the appellant and the rep that they would be considering an existing award. Right to fair hearing etc. This may be a course of action you may wish to take if you feel that the care component is required and justified. Aslo CDLA/5793/1997 (80/98) may be of use this refer to the claimant being told at the onset that an unappealed component was at risk.

Hi
I recently Had a tribunals decision set aside (by the Chairman himself) because they had failed to give notice, at the start of the hearing, of the possibility of losing the current award.

I believe that in general the tribunal do not have to take notice of what the DWP themselves have decided (ie to not look at the care component). This can work for and against the client as they may see a reason to increase the current award.

In my experience the tribunal only look at the component not being questioned if they have already identified a possible reason to change it within the Secretary of state's Submission.

I hope this helps in some way.

Mark

Can I commend to you R(IB)2/04 which deals authoritatively with this point.

I would reccommend you are sitting comfortably and have some coffee to hand before you start reading the 60some page decision.

In essence on the issue of tribunal looking at "unappealed" component.

1. A Tribunal has a discretion to look at an issue not raised by the appeal (under sec 12(8)(a) SSA 1998).

2. In exercising this discretion:

a) The tribunal must act judicially (ie they must have some reasonable reason for doing so). If called to give a statement they must demonstrate that they were exercising a discretionary power and explain why they exercised it in that case.

b) The tribunal must pay attention to the requirements of natural justice in doing this (or Art 6 HRA)- to ensure the hearing is fair. This will require putting the appellant on notice that they can do this. It may involve the granting of an adjournment to allow the appellant to prepare to defend that bit of the decision that is not in dispute between the parties.

Martin

And, of course, the adjournment also allows the appellant to withdraw the appeal.

Thank you Ladies & Gentlemen for your relies ...as a small note in reply to the last but one, there was no mention of Care needs anywhere in the appeal papers - the S of S didn't even mention care needs in his submission - nor was that part of the application in the papers - the Tribunal just appear to have taken it into their heads to look at Care.......

should of course read ".......for your replies" - dyslexic fingers

If there was absolutely no information in the papers relevant to care I cannot see how the Tribunal could exercise its discretion in a judicial manner: their decision to look at the care was based on no evidence about the foundation of the care award.

Alternatively, if they can get past that hurdle, then there is the issue of whether they erred by not adjourning to get the information the care award was based on.

Sounds like a bit of a joke really.

Martin.

.....which is the way I was looking at it....anyway, lets wait and see what the statement of reasons has to say on the subject...

"dyslexic fingers".....fire in a DLA claim.

With the tribunals in your area,you will probably get High Rate Mobility!!!!!

Fridaymorninghigh!

Of course you should bear in mind that if you get the Commissioners to set aside the tribunal decision, your client will lose their HRmob, and will be back to the pre-tribunal situation i.e. LRcare only. You would need to be fairly confident that any new tribunal is going to re-award the HR mob before taking this further.

Victor