Application for supersession: withdrawal and negative determination

I seem to recall there was a thread on this some time ago but I can’t find it.

Client had a PIP award from the tribunal on 1/3/19 - standard rate for daily living and enhanced for mobility. He believed his condition had deteriorated and on 22/11/19 asked for supersession. DWP sent him the PIP2 form, which he failed to complete. Under Reg 8 of the PIP Regs, if a claimant fails to provide information required by the SoS, the SoS must make a negative determination. The SoS could certainly have done that in this case but the explanation given to the claimant subsequently, in September 2021, for what they did is this: “As we did not receive a completed PIP2UI form from you, your request was withdrawn.”

The claimant made a further application in 2021 and was successful, but he has been trying to get the award backdated to 2019. Backdating as such is a non-starter but in my view there must be a question mark over whether the SoS ever made a negative determination. The language of “withdrawal” does not seem apt and no decision letter was ever issued. If that is right the SoS could no doubt make the negative determination now, and that would give the claimant the MR/appeal pathway. But short of JR is there any way of making that happen?

I’d be glad of any thoughts.

I think your client was the beneficiary of quite a generous view being taken by the DM at the time. As you say, the DM could have (and perhaps ought to have) terminated the entire award under reg 8 in view of the failure to return the form. That would have generated an appealable decision, however any appeal would have needed to overcome the question of whether he had good reason for not returning the form in time. The DWP are instead taking the view that they simply wouldn’t address the supersession request at all has saved the remainder of his PIP award. A refusal to even consider a supersession is valid in certain cases (see the Wood case on this) and I don’t see why a supersession request which the claimant withdraws or fails to prosecute couldn’t fall in this category. Even if it didn’t, the remedy would be JR which is out of time at this point.

There could be something to explore in relation to effective dates of supersession if the client is able to show that, notwithstanding that his first supersession application didn’t play out in full, he did enough to alert the DWP to the changes on which the supersession was eventually based. Although if it was just a phonecall to the helpline and he didn’t return the full form, that might be a stretch.

Thanks, Elliot.

Hmmm…. I think I might disagree with Elliot here. (Eeek!).

1. Reg 33 of the UC etc (D&A) Regs clearly envisages that a decision on an application for supersession can still be made when the claimant does not supply information requested by SSWP in relation to that application.

2. It might be possible to read reg. 8 of the SS(PIP) Regs in these circumstances as not applying to a case where what prompts the SSWP to ask for the information is a claimant application for supersession on grounds health has worsened. (not sure if you need this point).

3. It seems to me that the claimant almost certainly would have said in 2019 when he phoned up “My health is worse I now qualify for more” or words to that effect. That is plainly sufficient to constitute an application for supersession and it must be decided.

4. Insofar as Wood suggests it doesn’t have to be (and that is largely in the minority judgment of Arden LJ and not the majority of Rix and Dyson) then that is referring I think only to cases where the bona fide reason for requesting supersession is not one of the available grounds (so threshold criteria not met etc)- but that really does seem to be Arden LJs minority view.

So this is a case where a supersession request is made. SSWP then fail to attend to it. Another supersession request is made. SSWP then change award. Question is simply on that supersession what is the effective date? Doesn’t it have to be when he told them about the change? I would not want to go down route of him having to have precisely identified what had changed etc. The change he reported in 2019 was broadly “my health is worse” or “my care needs are more”. Won’t that do?

On second thoughts, maybe I am not disagreeing too much with Elliot - just a lot more positive about the final paragraph of his post. Would try not to allow the analysis of the change of circumstances he needed to report to get too detailed. He needed more care. He probably did say something to that effect in 2019. SSWP cannot refuse to determine that when he does not send in the form- reg 33 gives them the power to decide case on basis of what they have in that case not to refuse to decide issue at all- and Wood is not authority for that either.

Martin

Martin Williams - 28 September 2022 11:51 AM

Hmmm…. I think I might disagree with Elliot here. (Eeek!)

I’ve checked the forum rules and unfortunately that does still seem to be allowed…

I suppose I have difficulty with the idea that the SSWP would have been under some indefinite obligation to reach a decision on a supersession application in circumstances where the applicant provides no information to support the application and where having been told in writing that it is considered ‘withdrawn’, the claimant had done nothing at all to protest or affirm his intention to make the request for another two years.

Perhaps the answer was that instead of saying “I am treating your request as withdrawn”, the SSWP ought to have said “I am refusing your request for supersession and leaving the decision as it is because you’ve provided no further information and therefore have no basis to change the decision” (although perhaps a charitable FtT may take the view that this was the substantive effect of the ‘withdrawal’ letter even if it was not expressed in those terms).

Would your view be different if, rather than being taken to impliedly withdraw the request by failing to pursue it, Paul’s client had expressly withdrawn the application?

I think that we end up in the same place, whatever the precise mechanism, which is that the real issue at this stage is what the effective date of the supersession ought to be which is going to be fixed by the date of the reporting of the change. I suppose it is going to turn on what information was provided exactly and whether this provided the necessary notification.

Elliot- on your question, then I think my answer would be different- I think it must be possible to withdraw an application for revision or supersession.

Thanks I had not thought through the Sept 21 notice that stuff was withdrawn:

In terms of him being told in Sept 21 that it was treated as withdrawn as no response then he could:

- ask for that to be treated as in effect a decision refusing to supersede and then seek (official error) revision of it on basis that non response does not allow them to refuse to make decision rather power they have is to actually consider matter based on evidence they have; or in the alternative

- assert that they have not decided his application- it was unlawful for them not to do so and they must now decide it (problem with that is of course time limits if they refuse to do so- didnt they decide not to do so back in Sept 21 which kinda scuppers a JR approach).

Thank you, gentlemen.

I need to correct, clarify and expand some of the facts here. The client has MH issues and is not entirely reliable on factual issues, but we have his papers from the DWP following a subject access request, so I hope what i’m writing is accurate.

The client had the enhanced rates for both components following a tribunal decision in 2016. A health assessment in November 2018 resulted in a reduction, which was partly repaired by MR on 1 March 2019 to standard rate for dally living and enhanced for mobility. I wrongly said in my first post that that was a tribunal decision, but I don’t think that makes any difference. There was no appeal.

In November 2019 he asked for a supersession. The DWP certainly treated it as a supersession request and he certainly received the PIP2 form. He told the DWP he didn’t think he should have to fill in the form in view of the medical evidence. As far as I can tell he hadn’t actually provided any new medical evidence; he must have been referring to the evidence provided for the assessment in 2018.

Nothing then happened until he revived the request, with new medical evidence, in February 2021. DWP did not tell him at that point that they had treated his 2019 application as withdrawn. On 5 August 2021, on MR,  he was awarded the enhanced rate for both components, with effect from February 2021. He appealed, seeking backdating. On the issue of the earlier request, which the DWP wrongly dated as 22 November 2018 instead of 2019, the DWP submission said “The request for a review was withdrawn as the department did not receive the forms within the 90-day time period.”

The appeal was dismissed on 15 December 2021. The short decision makes no reference to the earlier request.

Having thought about your ideas I’m now wondering if there is also a possible appeal to the UT on the grounds that the tribunal in 2021 did not address itself to the question of whether the first request was still outstanding. If it was, it would be arguable that that should be the start date. The problem,I suspect, is that even if it had considered that issue there was no evidence until 2021 that the client’s condition had deteriorated.

I’d certainly ask for a statement of reasons. Would need to see papers to see if the issue was raised by the appeal I think (and therefore something the FTT should have considered).

I’m not decided on whether though on whether it is best dealt with via a challenge to the FTT (or even that it can be perhaps).

Maybe also thinking about challenging the decision not to decide the supersession request. The legal basis for them doing that is dubious I think for reasons given earlier. Difficulty if the route of challenge would be JR. 3 months for challenging that probably runs from when he was first notified of this (in the appeal bundle?).

Wondering how you could generate a new decision you could instead perhaps appeal? Possibly a letter saying

(1) no legal power to “withdraw” a supersession

(2) as such the “withdrawal” is in fact a decision to refuse to supersede

(3) such decisions require to be notified

(4) no notice took place

(5) he is still therefore in time to challenge that decision by way of any grounds revision

(6) please consider the revision and send an MR notice

Then you see what they do. I imagine it will either be:

(a) Refuse to send an MR notice on basis that treating a supersession request as withdrawn is not the same as refusing such a request and no right of appeal. If they do that then I would appeal and argue that such a refusal is actually consideration of whether to revise and refusal to do so- would within the appeal also need to establish that the withdrawal was in fact a refusal to supersede and therefore there are appeal rights.

(b) Refuse to revise and send an MR notice. In which case the appeal is more straightforward.

Martin Williams - 06 October 2022 11:30 AM

I’d certainly ask for a statement of reasons. Would need to see papers to see if the issue was raised by the appeal I think (and therefore something the FTT should have considered).

I’m not decided on whether though on whether it is best dealt with via a challenge to the FTT (or even that it can be perhaps).

Maybe also thinking about challenging the decision not to decide the supersession request. The legal basis for them doing that is dubious I think for reasons given earlier. Difficulty if the route of challenge would be JR. 3 months for challenging that probably runs from when he was first notified of this (in the appeal bundle?).

Wondering how you could generate a new decision you could instead perhaps appeal? Possibly a letter saying

(1) no legal power to “withdraw” a supersession

(2) as such the “withdrawal” is in fact a decision to refuse to supersede

(3) such decisions require to be notified

(4) no notice took place

(5) he is still therefore in time to challenge that decision by way of any grounds revision

(6) please consider the revision and send an MR notice

Then you see what they do. I imagine it will either be:

(a) Refuse to send an MR notice on basis that treating a supersession request as withdrawn is not the same as refusing such a request and no right of appeal. If they do that then I would appeal and argue that such a refusal is actually consideration of whether to revise and refusal to do so- would within the appeal also need to establish that the withdrawal was in fact a refusal to supersede and therefore there are appeal rights.

(b) Refuse to revise and send an MR notice. In which case the appeal is more straightforward.

Thanks, Martin.I appreciate all the thought that is going into this knotty little case.
I can see the argument but it seems to me that the DWP has a third option: they can say that this point was decided by the tribunal in December 2021, in that it accepted the DWP’s argument that the start date was in 2021. They can therefore refuse to consider a revision. I suppose that decision would then be appealable but that would still bring us back to the question of whether the tribunal had already decided the point.
The other thing that bugs me is evidence. Assuming we can establish that the “treated as withdrawn” approach was not an option open to the DWP, and so they can still make a decision, and therefore the date of notification was in 2019 (or the tribunal performs a similar exercise) that only gets us to the point of establishing a potential new and earlier start date. We still have to prove to either DWP or a tribunal that there was a change of circumstances when the client says it was. And we don’t have any evidence to that effect, other than what is implicit in a supersession request.