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TOPIC: HELP - I won and lost an appeal today

HELP - I won and lost an appeal today 2 months 3 weeks ago #192460

I was a recipient of DLA (higher rate for both parts) and had to re-apply for PIP. I waited for an appointment for an assessment but instead received a refusal letter from DWP on the grounds that I had not attended an assessment - which I hadn't received any notification of (no letter, no text reminder).

I applied for a mandatory reconsideration but the decision was upheld and my DLA stopped in December. I then appealed on the grounds that I was being refused because of an administrative error, not on medical grounds. Today my appeal was upheld.

However, between my appeal application and today's hearing, DWP had contacted the Tribunal saying they were now prepared to offer to me an assessment,. That took place last month. and a decision was made that I would only be offered the standard rate for daily living and nothing for mobility. But DWP didn't tell me directly, instead they sent their papers (the assessment and the decision maker's offer) to the TribunaI and I just received copies. Nobody contacted me directly to discuss it.

I was ready to challenge the assessment and the decision and duly prepared my evidence papers. I assumed it would be treated as a separate, fresh case, not connected with my appeal, which was only concerned with DWP's original decision.

However, at today's appeal, although the Tribunal found in my favour regarding DWP's original error, they then decided to accept DWP's new offer and backdate it to December. I challenged them immediately, saying that they should not accept this on my behalf, as the decision to accept or challenge any offer should be for me to make in the normal way, completely separate from this appeal.

The tribunal then said that DWP had told them they'd rung me to discuss their new offer but had got no response, so the Tribunal could now take the decision. I refuted this - I had received no direct contact from DWP - but I was simply dismissed and shown the door. Case closed.

When I got home, I rang the DWP and asked them to check whether they had a record of any calls to my number. They said there was one recent one and gave me the date and time but, curiously, they said the call had been flagged as 'failed security', which they said meant either a misdial or a faulty connection. I then checked my phone (I have incoming call records) and there was no trace of any call.

Can anyone advise if I can take this to the Upper Tribunal? The Appeal Tribunal just took DWP's word that they'd followed due process and I was not allowed even to question it.

This isn't just about the money, I'm losing my Blue Badge and I'll be housebound.

I'm absolutely devastated.

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HELP - I won and lost an appeal today 2 months 3 weeks ago #192470

Bravestick

I'm usually quite cautious in advising members about an appeal to the UTT as we have no sight of any of the papers involved, but in this case I have not hesitation in sating that you should take it further, the panel rendered a Decision on a matter not appealed by you.

Part of the problem lies with the DWP, having decided to re-instate your PIP claim, they should have lapsed the appeal but you can argue that this would not have been something that you would have knowledge of.

I would immediately apply for a Set Aside but also request a Statement of Reasons so that if necessary you can make an application to the UTT.

I'm sure there's a form for requesting a Set Aside but I can't find, try contacting the Tribunal Service.

What is an Error of Law?

Tribunals – Requesting a Statement of Reasons

Gordon
The following user(s) said Thank You: caiti

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Nothing on this board constitutes legal advice - always consult a professional about specific problems

HELP - I won and lost an appeal today 2 months 3 weeks ago #192476

Many thanks for this, Gordon, it's very much appreciated.

Re the appeal being lapsed, I tried to argue that very issue today, but DWP said later they couldn't lapse it as they didn't lodge it - that was my call.

According to DWP, I could have withdrawn the appeal on the grounds that they'd allowed an assessment - but only if I'd accepted the resulting award decision as well, i.e. the total package. They claim that since I'd stated that I didn't accept the award decision, I'd forfeited my right to lapse the appeal and it had therefore 'progressed' to the final stage - the Tribunal's judgement.

My request for a Statement of Reasons is already in the post, but I've never heard of 'set aside'. Is that when the Upper Tribunal sends the case back to a different lower Trib for consideration or is it something completely different ?

I must say, I dread the thought of having to wait up to two years for the UTT process to complete.

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HELP - I won and lost an appeal today 2 months 3 weeks ago #192513

Bravestick

As usual the DWP are talking rubbish, they made you a more advantage offer, they reinstated your claim and the standard procedure under these circumstances is for them to lapse the appeal.

What they then did was make an award (this was not an offer), as this was separate from your appeal it should have been put into payment. If you were unhappy with that award then you had a new right of appeal.

A Set Aside is done by the Judge of your hearing if there was a material fault in the hearing or Decision that was made.

I've found a form, but it is not for a Social Security tribunal.

formfinder.hmctsformfinder.justice.gov.uk/css001-eng.pdf

Trying ringing the Tribunal Service.

Gordon

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HELP - I won and lost an appeal today 2 months 2 weeks ago #192682

I took time over the weekend to go over what I remembered from the appeal. Having ruled that the original decision (of 5th Dec) be set aside, he panel DID tell DWP that their new offer/decision on payment, based on the assessment they finally offered me, should be backdated to the date of the original decision, and DWP agreed.

As this was all said in one piece, I thought the whole thing was the ruling, which is why I was so upset, believing that the panel had overstepped their remit.

However, although I've yet to receive the full paperwork, I have today received the basic decision notice and it simply says

1. The appeal is allowed.
2. The decision made on 5th December is set aside
3. The appellant gave credible oral evidence....etc

So it would appear that the panel were simply advising or recommending the course of action to DWP, though they didn't clarify that when I challenged them at the time.

But I've just realised something - I was on DLA (higher rate for both components, lifelong) which continued while my application for PIP was being processed and only stopped because of the negative PIP decision on 5th Dec. Now that decision has been set aside, that means my application is still being processed...

...So I should still be receiving my DLA until a new decision is made, shouldn't I?

Not sure what the procedure is for claiming the backdated DLA, but I was going to start simply by writing to DWP. Any thoughts?

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HELP - I won and lost an appeal today 2 months 2 weeks ago #192715

Bravestick

AS I understand your current situation;

- the DWP "offer" of a PIP award should either be in payment of being put into payment
- the PIP award should apply from the day after your DLA ended
- the new PIP award carries it's own right of appeal.

The situation with you DLA is complicated and if I am honest, you are unlikely to be able to resolve it. Your DLA was closed because you failed to attend your PIP assessment. At the time, the Decision to close your PIP claim was correct.

As far as I can see the Tribunal accepted your reasons for failing to attend, so you had Good Cause for not attending. This means that the Decision to close your PIP claim was incorrect and if your PIP should not have been closed then neither should your DLA.

Here's the problem. Whilst there is now Case Law that confirms that a DLA claim closed in error should be re-opened, the DWP are taking the position that the error occurred with the PIP Decision and not the DLA, so they won't re-open the claim. Instead they should have re-started your PIP claim the following day.

You can pursue the matter, but even seasoned Welfare Rights advisors are struggling to get this Decision overturned.

Gordon

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