4 Yes, I too love seeingthe horror on the representative’sface when I tell them thatwe are going to look at themobility component!Please madam don’t look so surprised… surely your representative told you we had the power to remove your higher rate care component!
5 Tribunal and DWP powers Tribunalss12(8) SSA indeciding appeal anappeal tribunal ‘neednot consider any issuethat is not raised in theappeal’…Section 1.1 page 3Decision Makerss9(1) and s10(1) SSA 1998- in deciding a revision orsupersession request aDM ‘need not considerconsider any issue thatis not raised’ by theapplication…Section 1.2 page 4
6 Withdrawing the appeal reg 40(1) DMA Regulations 1999- pre 3/11/2008appeal can be withdrawn:- at an oral hearing; or- at any other time before theappeal… by giving notice inwriting…Schedule 4 Transitional provisionsappeal made before 3 November tribunalcan apply procedural rules which applied beforethat date.Section 1.1 page 3rule 17(1) to (5) Tribunal Procedure Rulespost 3/11/2008appeal can be withdrawn:- at any time before a hearing bygiving written notice of withdrawal; or- orally at a hearing…where a notice of withdrawal is givenorally at an appeal hearing this willnot be permitted ‘unless the tribunalconsents to the withdrawal’…where a party has withdrawn an appeal they mayapply for it to be reinstated within one month ofthe date written notice was received or the dateof the hearing in which the appeal waswithdrawn orally.Section 1.1 page 3
7 The two different types of appeal… 2. PeterHas been getting DLA lowerrate care and higher ratemobility for a number ofyears.His care needs haveincreased and he nowthinks he is entitled to themiddle rate carecomponent.The DWP refuse to supersede hisexisting award. He appeals.1. SalimaHas made a claim for DLA.She has been awardedlower rate care and higherrate mobility.Salima appeals DWPdecision - she believes thatshe should have beenawarded middle rate care.The two different types of appeal…
8 R(IB)2/04 - Chief Commissioner Hickinbottom, Commissioner Mesher and Commissioner Turnbull. tribunal may considermatters not raised by the partiestribunals part of theadjudication system - designedto ensure that claimantsreceive neither more nor lessthan the amount of benefit towhich they are properly entitledlegitimate public interesttribunals have - inquisitorial/investigatory functionSection 1.3 page 4
9 R(IB)2/04 - Chief Commissioner Hickinbottom, Commissioner Mesher and Commissioner Turnbull. s12(8)(a) grants it a discretion which must be exercised judiciallytribunal is under a duty to consider whether or not to exercise thediscretion where the circumstances could warrant itthe outcome could be to consider issue not raised or not to considerissue raisedmust be conscious exercise of discretionSection 1.3 page 4
10 R(IB)2/04 - Chief Commissioner Hickinbottom, Commissioner Mesher and Commissioner Turnbull. tribunal would err in law by failing to give adequate reasons for its conclusionnatural justice - claimant should be given notice of the tribunal’s intention to consider superseding adversely + time to enable him to properly prepare his casetribunal may consider it more appropriate to leave the question whether the original decision should be superseded adversely to the Secretary of StateSection 1.3 page 4
11 CDLA/4140/2007 - Commissioner Mesher Background…Section 1.4 page 5claimant was getting DLA lower rate care componentby way of supersession made application for the mobility componentappeal hearing - not represented but was accompanied by her sistertribunal - refused mobility and removed existing care component awardtribunal warned claimant - ‘risked losing’ current award - if no evidence to support award
12 CDLA/4140/2007 - Commissioner Mesher Finding…Section 1.4 page 5criticised tribunal for not acknowledging the discretionary power it had to consider whether claimant entitlement to the care component - as per R(IB)2/04condemned tribunal’s approach - that it was for them to decide whether the claimant was entitled to the care component - confirmed tribunal could only do that after conscious exercise of the judicial discretion (which was demonstrated in its reasoning).
13 CDLA/4140/2007 - Commissioner Mesher Section 1.4 page 5criticised tribunal - depriving the claimant of a ‘fair opportunity of stating’ their case - contrary to the rules of natural justice and right to a fair hearing‘ultimate principle’ - claimant should not be denied a fair hearingtribunal should have given ‘sufficient notice’ to enable claimant to properly prepare defence of the care component
14 CDLA/4140/2007 - Commissioner Mesher where claimant was represented ‘by a representative of some experience and competence’ - may be enough that the representative indicates that all the tribunal’s options have been explained to the claimant and they wish to proceedwhere claimant not represented or (e.g. accompanied by a relative) ought to be offered an adjournment to another date to give an opportunity to take advice and/or obtain further evidence or put together some representations in support of the existing awardANDshould be offer of a shortadjournment to considerwhether to take up the offerof an adjournment toanother dateSection 1.4 page 5
15 CDLA/2084/2007 - Deputy Commissioner Paines Background…Section 1.5 page 6claimant - appealing DWP decision to reduce award of higher rate care and higher rate mobility to middle rate care and lower rate mobilitytribunal decided that the claimant was not entitled to either component of DLA
16 CDLA/2084/2007 - Deputy Commissioner Paines tribunal were therefore not actually obliged to consider whether the award was too highcriticised tribunal - the statement of reasons failed to record that the tribunal had reached a conscious decision to use power under s12(8)(a)criticised tribunal - no evidence that the claimant was warned of the possibility that the tribunal may cancel the award made by DM altogetherSection 1.5 page 6Finding…confirmed R(IB)2/04 - that tribunal must make conscious decision to use discretionary powerANDmust warn the claimant and allow them opportunity to prepare their case or withdraw the appealappeal was whether the award was too low not too high
17 CDLA/884/2008 - Commissioner Rowland Background…claimant - getting DLA care lower rate and mobility higher rateclaimant - appealing decision refusing to award middle rate care following supersession requesttribunal had concerns from papers that claimant not entitled to care or mobilitytribunal warned claimant of risks - claimant declined to withdraw appealtribunal began by examining mobility - asked claimant how they had got to the appeal hearing - could walk 120 yards (100 before stopping for rest)tribunal refused to increase care component and withdrew mobilitySection 1.6 page 6
18 CDLA/884/2008 - Commissioner Rowland Findings…confirmed that tribunal needed to give reasons for enquiring into award of higher rate mobility and lower rate care when this was not in dispute between the parties (R(IB)2/04)not enough just to warned claimant must give “sufficient notice” to allow claimant to prepare a case (R(IB)2/04)warned of the dangers of a tribunal being both prosecutor and judgenoted difficult to get warning right between “too robust” and “not robust enough” - powerful reason for tribunal refraining from making decisions less favourable to claimant except in most obvious of cases (where evidence is “overwhelming”)where doubts about award - tribunal draw to attention of Secretary of State - DWP can revise/supersede awardSection 1.6 page 6
19 CDLA/884/2008 - Commissioner Rowland Findings…distinguished between - new claim and supersessionraised issue of overpayments - e.g. failure to report change of circumstance/misrepresentationSection 1.6 page 6
20 C15/08-09(DLA) - Commissioner Mullan Background…claimant - awarded DLA care higher rate and mobility higher rate - by appeal tribunalDWP - superseded award reducing to DLA care lower rate and mobility higher rateclaimant appealed - at appeal - tribunal adjourned enable claimant to seek independent legal advice and warned that ‘… award could be varied’at appeal claimant represented by husband - award reduced to DLA care lower rate and no mobilitySection page 13King Kenny!
21 C15/08-09(DLA) - Commissioner Mullan Findings…statement of reasons nomention of grounds forsupersessiontribunals job is to consider:whether grounds for supersession existed; and2. establish effective date; and3. make clear in statement of reasons that it has done somust be explicit not implicit - notpreferable but essential - failureerror of lawclaimant entitled to know whathad changed to enable earlierdecision to be supersededSection page 13
23 C15/08-09(DLA) - Commissioner Mullan appellant entitled to withdrawappeal (note: pre new tribunalprocedure rules - permission now needed to withdraw appeal)tribunal should refrain from making less favourable decisions except in most obvious cases - or after an appropriate adjournmentwhere tribunal any doubt about award - under a duty to investigate - make sure award is correct (different to CDLA/884/2008 Commissioner Rowland - tribunal alter DWP decision only in ‘most obvious cases’)Section page 13Findings…a tribunal has the power to return a ‘less favourable’ decision - supersession or revisiondiscretionary power - must beexercised judiciallyany statement of reasons must set out reasons for use of discretiontribunal must give notice of intention to make less favourable decision - enable appellant to prepare case (rule of natural justice - Article 6 HRA)
24 CDLA/3255/ Judge LaneBackground…claimant - blind since 1989was getting DLA care middlerate and mobility lower ratesought supersession - higherrate mobility - unable/virtuallyunable to walkDWP refusedclaimant appealed - askedtribunal not to look at carecomponent - tribunal advised hadpower to look at both care andmobility - allowed 30 minutes toconsider whether to proceedappeal tribunal - awarded lower rate care and lower rate mobility onlySection page 11
25 CDLA/3255/ Judge Lanetribunal did not relinquish its impartiality by examining un-appealed component - tribunals have inquisitorial functiondiscretionary power - triggered from evidence arising from having previewed the appeal or upon hearing evidence - can decides un-appealed component requires examinationtribunal has discretion - ‘defect’ must be ‘patent’Section page 11Held that tribunal must give adequate reasons - but - in ‘obvious’ cases tribunal’s failure to expressly record reasons for exercising discretion is unlikely to make decision erroneous in law - in less obvious cases the need will be greater to make reasons clear - expressly or inferentially
26 CDLA/2738/2007 - Rowland higher mobility - boarder line cases - tribunal should be slow tointerfere (tribunal entitled to takeview not entitled and DWPentitled to take view is entitled)Lord Hoffmann (Moyna -House of Lords) correct legal lineand not “outside the bounds ofreasonable judgment”.CDLA/717/1998(Commissioner Rowland) -“margin of appreciation”Section page 17
27 Summary thoughts…s12(8)(a) raises important points for both tribunals and representativescase law confirms s12(8)(a) - ‘need not consider’ discretionary power - must be exercised fairlytribunal cannot ‘check-up’ on all claimantsmust have trigger - ‘claimant looked a bit shifty’ (not sufficient!)
28 Summary thoughts… trigger could be: what is said in claim formwhat is contained in medical evidenceclaimant’s oral evidencetribunal’s observationsrepresentative looked a bit shifty (only joking!)trigger should be of sufficient material weight - must be patent
29 Summary thoughts… full statement of reasons should contain: details of the triggerfact tribunal were going to use (or not going to use) discretionreasons for using (or not using) discretionfact claimant put on noticefact claimant refused or offered adjournment to prepare caseif adjournment refused - reasons whyand revision/supersession - grounds (if applicable!)
30 Summary thoughts…Dear Tribunal, please list thiscase for hearing, we now havethe evidence we need for anyeventuality…wrong to place burden on representatives of having to prepare (and gather evidence) argument to cover every eventualitycould prove foolish practice of getting e.g. medical evidence on both components - could provide THE very trigger needed for enquiry into un-appealed component
31 Summary thoughts…same rules seeking higher rate care (higher rate Attendance Allowance) - focus on matter in dispute between parties (i.e. claimant and DWP) onlyoverriding objective of tribunal to act fairly and justly (rule 2)withdrawal of appeal - apply for appeal to be reinstated - one month time limit (rule 17)submit complaint!