tribunal powers

can a tribunal decide to revise a decision under appeal to take into account some fact that is not in dispute. My client was overpaid benefits. he has appealed and a hearing is due. The DWP are asking for about £1.500 for a period from , say, Jan 2019 to Nov 2019, but in fact the client was paid additional money to which he was not entitled from August 2018.  I can see no reason why the period from August 2018 to Jan 2019 has not been included by the DWP and my fear is that the Tribunal could look into that period and make a decision that the money paid is recoverable even though the DWP has not done so

I think not. Whether your client is appealing the entitlement decision or the overpayment decision, the DWP decision will relate to payments between two specified dates. A decision relating to a different period, earlier or later, is final unless and until it is revised by DWP (s17 Social Security Act 1998). Of course the tribunal might ask the question during the appeal hearing, thereby alerting the DWP to their omission, but I can’t see that they have any jurisdiction to change the decision.

Tribunals do in principle have the ability to make a decision less favourable than the one under appeal. This usually comes up in PIP cases where for instance the Tribunal may reduce or remove an existing award. There are very many cases where Tribunals are warned about the use of these powers. Broadly the position is that a less favourable decision should not be made unless this relates to determining a matter ‘raised by the appeal’ or the Tribunal has properly used its discretion under s12(8)(a) SSA to consider a matter which is not used by the appeal - and in every case, the appellant must be put on proper notice of the reasons why their existing award is considered under threat so that they might respond to them (which is very often going to require an adjournment).

In your case, it seems that the decision under appeal is the decision to supersede the CA award with effect from Jan 2019 and the corresponding decision as to the recoverable overpayment. I don’t immediately see why the Tribunal couldn’t hypothetically decide to set the effective date of the supersession at some earlier date (therefore increasing the amount of the overpayment) if the evidence supported that but it would need to be subject to the same safeguards. It is not something I have ever seen happen though, I think that cases relating to overpayments tend to be treated more akin to civil cases where the approach is more related to whether the SSWP has established the necessary facts to support its decision.

I have had presenting officers submit at a hearing that the period at issue be for a longer period back to an earlier date than that stated in the decision under appeal and the SSWP’s submission.

These have been cases where the o/p arose over many years (for example due to variable earnings affecting CA, HB or ESA ‘permitted work’ rules) but only for a number of shorter periods whilst there was entitlement during the intervening periods.

The tribunal curtly dismissed the POs submission for reasons that echo what Elliot has said above and the SSWP did not subsequently make a new decision for the additional periods. But that must be a risk, at least in theory.

Sometimes it was unclear why the DWP had not included the earlier periods in the original decision. Again, to echo Elliot, I would speculate that it was because the SSWP did not consider the evidence available was sufficient to supported the earlier period (for example, because the evidence of earnings available (and contained in the submission) was more limited, perhaps just to annual rather than week by week sums, compared to later periods).