Welfare Rights Service
DLA/AA: defending the
un-appealed component…
Mark Perlic
DLA/AA:
defending the
un-appealed
component…
 offence
 bad language
 understanding
DLA/AA:
defending the
un-appealed
component…
Yes, I too love seeing
the horror on the representative’s
face when I tell them that
we are going to look at the
mobility component!
Please madam don’t look so
surprised… surely your
representative told you we had
the power to remove your higher
rate care component!
Tribunal and DWP powers
Tribunals
Decision Makers
s12(8) SSA 1998 - in
deciding appeal an
appeal tribunal ‘need
not consider any issue
that is not raised in the
appeal’…
s9(1) and s10(1) SSA 1998
- in deciding a revision or
supersession request a
DM ‘need not consider
consider any issue that
is not raised’ by the
application…
Section 1.1 page 3
Section 1.2 page 4
Withdrawing the appeal
reg 40(1) DMA Regulations 1999
- pre 3/11/2008
rule 17(1) to (5) Tribunal Procedure Rules
2008 - post 3/11/2008
appeal can be withdrawn:
appeal can be withdrawn:
- at an oral hearing; or
- at any time before a hearing by
giving written notice of withdrawal; or
- at any other time before the
appeal… by giving notice in
writing…
Schedule 4 Transitional provisions
appeal made before 3 November 2008 - tribunal
can apply procedural rules which applied before
that date.
Section 1.1 page 3
- orally at a hearing…
where a notice of withdrawal is given
orally at an appeal hearing this will
not be permitted ‘unless the tribunal
consents to the withdrawal’…
where a party has withdrawn an appeal they may
apply for it to be reinstated within one month of
the date written notice was received or the date
of the hearing in which the appeal was
withdrawn orally.
Section 1.1 page 3
1. Salima
2. Peter
Has made a claim for DLA.
She has been awarded
lower rate care and higher
rate mobility.
Has been getting DLA lower
rate care and higher rate
mobility for a number of
years.
Salima appeals DWP
decision - she believes that
she should have been
awarded middle rate care.
His care needs have
increased and he now
thinks he is entitled to the
middle rate care
component.
The DWP refuse to supersede his
existing award. He appeals.
The two different types of appeal…
R(IB)2/04 - Chief Commissioner Hickinbottom,
Commissioner Mesher and Commissioner Turnbull.
 tribunal may consider
matters not raised by the parties
 tribunals part of the
adjudication system - designed
to ensure that claimants
receive neither more nor less
than the amount of benefit to
which they are properly entitled
 legitimate public interest
 tribunals have - inquisitorial/
investigatory function
Section 1.3 page 4
R(IB)2/04 - Chief Commissioner Hickinbottom,
Commissioner Mesher and Commissioner Turnbull.
 s12(8)(a) grants it a discretion which must be exercised judicially
 tribunal is under a duty to consider whether or not to exercise the
discretion where the circumstances could warrant it
 the outcome could be to consider issue not raised or not to consider
issue raised
 must be conscious exercise of discretion
Section 1.3 page 4
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
conclusion
 natural justice - claimant should be given notice of the tribunal’s
intention to consider superseding adversely + time to enable him to
properly prepare his case
 tribunal may consider it more appropriate to leave the question
whether the original decision should be superseded adversely to the
Secretary of State
Section 1.3 page 4
CDLA/4140/2007 - Commissioner Mesher
 claimant was getting DLA
lower rate care component
Background…
 by way of supersession made
application for the mobility
component
 appeal hearing - not
represented but was
accompanied by her sister
 tribunal - refused mobility and
removed existing care
component award
 tribunal warned claimant ‘risked losing’ current award - if
no evidence to support award
Section 1.4 page 5
CDLA/4140/2007 - Commissioner Mesher
 criticised tribunal for not
acknowledging the
discretionary power it had to
consider whether claimant
entitlement to the care
component - as per R(IB)2/04
 condemned 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).
Finding…
Section 1.4 page 5
CDLA/4140/2007 - Commissioner Mesher
 criticised 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
hearing
 tribunal should have given
‘sufficient notice’ to enable
claimant to properly prepare
defence of the care component
Section 1.4 page 5
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 proceed
 where 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 award
AND
 should be offer of a short
adjournment to consider
whether to take up the offer
of an adjournment to
another date
Section 1.4 page 5
CDLA/2084/2007 - Deputy Commissioner Paines
 claimant - appealing DWP
decision to reduce award of
higher rate care and higher
rate mobility to middle rate
care and lower rate mobility
Background…
 tribunal decided that the
claimant was not entitled to
either component of DLA
Section 1.5 page 6
CDLA/2084/2007 - Deputy Commissioner Paines
Finding…
 confirmed R(IB)2/04 - that
tribunal must make conscious
decision to use discretionary
power
AND
 must warn the claimant and
allow them opportunity to
prepare their case or withdraw
the appeal
 appeal was whether the award
was too low not too high
 tribunal were therefore not
actually obliged to consider
whether the award was too
high
 criticised 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 altogether
Section 1.5 page 6
CDLA/884/2008 - Commissioner Rowland
Background…
 claimant - getting DLA care
lower rate and mobility higher
rate
 tribunal warned claimant of
risks - claimant declined to
withdraw appeal
 claimant - appealing decision
refusing to award middle rate
care following supersession
request
 tribunal began by examining
mobility - asked claimant how
they had got to the appeal
hearing - could walk 120 yards
(100 before stopping for rest)
 tribunal had concerns from
papers that claimant not
entitled to care or mobility
 tribunal refused to increase
care component and withdrew
mobility
Section 1.6 page 6
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 judge
 noted 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 award
Section 1.6 page 6
CDLA/884/2008 - Commissioner Rowland
Findings…
 distinguished between - new
claim and supersession
 raised issue of overpayments e.g. failure to report change of
circumstance/misrepresentation
Section 1.6 page 6
C15/08-09(DLA) - Commissioner Mullan
Background…
 claimant - awarded DLA care higher
rate and mobility higher rate - by
appeal tribunal
 DWP - superseded award reducing
to DLA care lower rate and mobility
higher rate
 claimant 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 mobility
King Kenny!
Section 1.17 - page 13
C15/08-09(DLA) - Commissioner Mullan
Findings…
 statement of reasons no
mention of grounds for
supersession

tribunals job is to consider:
1. whether grounds for
supersession existed; and
 must be explicit not implicit - not
preferable but essential - failure
error of law
 claimant entitled to know what
had changed to enable earlier
decision to be superseded
2. establish effective date; and
3. make clear in statement of
reasons that it has done so
Section 1.17 - page 13
C15/08-09(DLA) - Commissioner Mullan
Reviewed…
 R(IB)2/04
 C48/03-04(DLA)
 C24/07-08(DLA)
 C18/07-08(DLA)
 CDLA/884/2008
Section 1.17 - page 13
C15/08-09(DLA) - Commissioner Mullan
Findings…
 a tribunal has the power to
return a ‘less favourable’
decision - supersession or
revision
 discretionary power - must be
exercised judicially
 any statement of reasons
must set out reasons for use
of discretion
 appellant entitled to withdraw
appeal (note: pre new tribunal
procedure rules - permission
now needed to withdraw
appeal)
 tribunal should refrain from
making less favourable
decisions except in most
obvious cases - or after an
appropriate adjournment
 where tribunal any doubt about
award - under a duty to
investigate - make sure award
 tribunal must give notice of
is correct (different to
intention to make less
CDLA/884/2008 Commissioner
favourable decision - enable
Rowland - tribunal alter DWP
appellant to prepare case (rule
decision only in ‘most obvious
of natural justice - Article 6
cases’)
HRA)
Section 1.17 - page 13
CDLA/3255/2008 - Judge Lane
Background…
 claimant - blind since 1989
 appeal tribunal - awarded
lower rate care and lower rate
mobility only
 was getting DLA care middle
rate and mobility lower rate
 sought supersession - higher
rate mobility - unable/virtually
unable to walk
 DWP refused
 claimant appealed - asked
tribunal not to look at care
component - tribunal advised had
power to look at both care and
mobility - allowed 30 minutes to
consider whether to proceed
Section 1.16 - page 11
CDLA/3255/2008 - Judge Lane
 tribunal did not relinquish its impartiality by
examining un-appealed component tribunals have inquisitorial function
 discretionary power - triggered from
evidence arising from having previewed the
appeal or upon hearing evidence - can
decides un-appealed component requires
examination
 tribunal has discretion - ‘defect’ must be
‘patent’
Section 1.16 - page 11
Held 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
CDLA/2738/2007 - Rowland
 higher mobility - boarder line
cases - tribunal should be slow to
interfere (tribunal entitled to take
view not entitled and DWP
entitled to take view is entitled)
 Lord Hoffmann (Moyna House of Lords) correct legal line
and not “outside the bounds of
reasonable judgment”.
 CDLA/717/1998
(Commissioner Rowland) “margin of appreciation”
Section 1.18 - page 17
Summary thoughts…
 s12(8)(a) raises important
points for both tribunals and
representatives
 case law confirms s12(8)(a) ‘need not consider’
discretionary power - must be
exercised fairly
 tribunal cannot ‘check-up’ on
all claimants
 must have trigger - ‘claimant
looked a bit shifty’ (not
sufficient!)
Summary thoughts…
 trigger could be:
– what is said in claim form
– what is contained in
medical evidence
– claimant’s oral evidence
– tribunal’s observations
– representative looked a bit
shifty (only joking!)
 trigger should be of
sufficient material weight
- must be patent
Summary thoughts…
 full statement of reasons
should contain:
– details of the trigger
– fact tribunal were going to use
(or not going to use) discretion
– reasons for using (or not
using) discretion
– fact claimant put on notice
– fact claimant refused or
offered adjournment to
prepare case
– if adjournment refused reasons why
 and revision/supersession grounds (if applicable!)
Summary thoughts…
 wrong to place burden on
representatives of having to
prepare (and gather evidence)
argument to cover every
eventuality
Dear Tribunal, please list this
case for hearing, we now have
the evidence we need for any
eventuality…
 could prove foolish practice of
getting e.g. medical evidence
on both components - could
provide THE very trigger
needed for enquiry into unappealed component
Summary thoughts…
 same rules seeking higher rate
care (higher rate Attendance
Allowance) - focus on matter in
dispute between parties (i.e.
claimant and DWP) only
 overriding 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!
Finish…
Thank you
Mark Perlic