Upper tribunal

R

Any award you had before the Tribunal hearing will take effect if you challenge the Tribunal Decision.

So, if you were awarded Standard Daily Living by the DWP and appealed for the Enhanced rate which was refused then the Standard rate will remain in payment.

However, as another example, if the DWP made no award and the Tribunal made a Standard award while you were appealing for an Enhanced one, then taking the matter further will result in the DWP's no award taking effect again.

Are you sure you mean a Set Aside as opposed to an appeal to the Upper Tier, for a Set Aside there has to have been a clear and material Error of Law in the First Tier Decision, a good example of this would be the panel being improperly constituted. A Set Aside usually requires all three parties to agree on the Error.

Gordon

Hi Roch82,
This may be of use to you, to help clarify. As per Gordon, if there has been a 'procedural irregularity you can apply for a set aside.
If there is no other record of proceedings eg a hand written or typed note, then this could comprise 'a procedural irregularity'. I know that this has been suggested as a course of action by at least one tribunal to allow a set aside.
You can apply for this under rule 37(d). - see below
There is normally 1 month time limit after the decision notice is sent to apply for a set aside.
If the tribunal is suggesting this course of action it seems that you won't need to argue other errors of law. You will get a new hearing that will be with different panel members, who can look at everything again.

Setting aside a decision which disposes of proceedings
37.—(1) The Tribunal may set aside a decision which disposes of proceedings, or part of such a decision, and re-make the decision, or the relevant part of it, if—

(a)the Tribunal considers that it is in the interests of justice to do so; and
(b)one or more of the conditions in paragraph (2) are satisfied.
(2) The conditions are—

(a)a document relating to the proceedings was not sent to, or was not received at an appropriate time by, a party or a party’s representative;
(b)a document relating to the proceedings was not sent to the Tribunal at an appropriate time;
(c)a party, or a party’s representative, was not present at a hearing related to the proceedings; or
(d)there has been some other procedural irregularity in the proceedings.
(3) A party applying for a decision, or part of a decision, to be set aside under paragraph (1) must make a written application to the Tribunal so that it is received no later than 1 month after the date on which the Tribunal sent notice of the decision to the party.

I hope this helps.
LL26