Taking away an DLA existing award - issues to consider from recent Social Security Commissioners Decision.

Decision of Commissioner Rowland

The claimant had appealed against the Secretary of State’s refusal to increase his award to include the middle rate care component.  A tribunal took away his award of higher rate mobility and lowest rate care. 

The Commissioner states:

“7.  I am satisfied that, among other errors to which I shall refer below, the tribunal erred in law in failing to explain why it decided to consider entitlement to the mobility component and to the lowest rate of the care component when such entitlement was not in issue between the parties (see paragraph 94 of R [IB] 2/04 and section 12(8)(a) of the Social Security Act 1998) …

8.  An increasing number of appeals before Commissioners seem to be cases where a tribunal has made a decision less favourable to the claimant than the one the claimant was challenging before the tribunal.  …  Tribunals need to be aware of the dangers of being both prosecutor and judge, one of which is the risk of making errors unprompted by the parties.  …

9.  There are other risks in being both prosecutor and judge.  The most obvious is that there can be a perception that the tribunal has prejudged the case.  Of course a tribunal has an inquisitorial or investigative role but here it is noteworthy that the tribunal, having apparently formed the (not unreasonable) view on the papers that the claimant’s entitlement to any disability living allowance was doubtful, started the proceedings by warning the claimant that his existing award was at risk and advising him that he could withdraw his appeal.  The claimant having declined to withdraw his appeal, the tribunal then launched straight into the question of the claimant’s entitlement to the mobility component, …, without first listening to what the claimant had to say about his needs for care which was the issue upon which he had brought his appeal.  It is little wonder that the claimant says, in effect, that he formed an early view that the tribunal was more interested in its own agenda than in what he had to say.

10.  …it is not necessarily enough for a tribunal to warn a claimant that his existing award is at risk and give him the opportunity to withdraw his appeal.  [See] paragraph 94 of [R(IB) 2/04], in which [the Tribunal of Commissioners] said that it was necessary that “the claimant has sufficient notice of the tribunal’s intention to consider superseding adversely to him to enable him properly to prepare his case.” … A tribunal is in a difficult position.  If it gives the claimant too robust a warning at the beginning of a hearing, it runs the risk of giving the impression of having prejudged the case.  If it does not give such a robust warning, the warning may not adequately convey to the claimant the case he or she needs to consider resisting with the consequence that a decision not to withdraw the appeal, or not to ask for an adjournment, is not fully informed.  This is a powerful reason for tribunals refraining from making decisions less favourable to claimants than the decisions being challenged, except in the most obvious cases (e.g., where the evidence is overwhelming or the facts are not in dispute and no element of judgment is involved or where the law has been misapplied by the Secretary of State) or after an appropriate adjournment.  In such obvious cases, a failure expressly to state why a tribunal has considered a point not in issue between the parties will not necessarily render the tribunal’s decision erroneous in point of law; in less obvious cases, the absence of a reason for considering the point may suggest that the discretion to do so has not been exercised properly.

11.  If a tribunal does not consider the correctness of an award that is not directly in issue before it, it does not follow that it should do nothing if it has doubts about the award.  The chairman is at liberty to draw the doubts to the Secretary of State’s attention in the decision notice … That would enable the Secretary of State to consider a supersession or revision'

Full decision CDLA/884/2008

A good decision for appellants in my opinion.

jima1 wrote:

QUOTE:
Taking away an DLA existing award - issues to consider from recent Social Security Commissioners Decision.

Decision of Commissioner Rowland

The claimant had appealed against the Secretary of State’s refusal to increase his award to include the middle rate care component.  A tribunal took away his award of higher rate mobility and lowest rate care. 

The Commissioner states:

“7.  I am satisfied that, among other errors to which I shall refer below, the tribunal erred in law in failing to explain why it decided to consider entitlement to the mobility component and to the lowest rate of the care component when such entitlement was not in issue between the parties (see paragraph 94 of R [IB] 2/04 and section 12(8)(a) of the Social Security Act 1998) …

8.  An increasing number of appeals before Commissioners seem to be cases where a tribunal has made a decision less favourable to the claimant than the one the claimant was challenging before the tribunal.  …  Tribunals need to be aware of the dangers of being both prosecutor and judge, one of which is the risk of making errors unprompted by the parties.  …

9.  There are other risks in being both prosecutor and judge.  The most obvious is that there can be a perception that the tribunal has prejudged the case.  Of course a tribunal has an inquisitorial or investigative role but here it is noteworthy that the tribunal, having apparently formed the (not unreasonable) view on the papers that the claimant’s entitlement to any disability living allowance was doubtful, started the proceedings by warning the claimant that his existing award was at risk and advising him that he could withdraw his appeal.  The claimant having declined to withdraw his appeal, the tribunal then launched straight into the question of the claimant’s entitlement to the mobility component, …, without first listening to what the claimant had to say about his needs for care which was the issue upon which he had brought his appeal.  It is little wonder that the claimant says, in effect, that he formed an early view that the tribunal was more interested in its own agenda than in what he had to say.

10.  …it is not necessarily enough for a tribunal to warn a claimant that his existing award is at risk and give him the opportunity to withdraw his appeal.  [See] paragraph 94 of [R(IB) 2/04], in which [the Tribunal of Commissioners] said that it was necessary that “the claimant has sufficient notice of the tribunal’s intention to consider superseding adversely to him to enable him properly to prepare his case.” … A tribunal is in a difficult position.  If it gives the claimant too robust a warning at the beginning of a hearing, it runs the risk of giving the impression of having prejudged the case.  If it does not give such a robust warning, the warning may not adequately convey to the claimant the case he or she needs to consider resisting with the consequence that a decision not to withdraw the appeal, or not to ask for an adjournment, is not fully informed.  This is a powerful reason for tribunals refraining from making decisions less favourable to claimants than the decisions being challenged, except in the most obvious cases (e.g., where the evidence is overwhelming or the facts are not in dispute and no element of judgment is involved or where the law has been misapplied by the Secretary of State) or after an appropriate adjournment.  In such obvious cases, a failure expressly to state why a tribunal has considered a point not in issue between the parties will not necessarily render the tribunal’s decision erroneous in point of law; in less obvious cases, the absence of a reason for considering the point may suggest that the discretion to do so has not been exercised properly.

11.  If a tribunal does not consider the correctness of an award that is not directly in issue before it, it does not follow that it should do nothing if it has doubts about the award.  The chairman is at liberty to draw the doubts to the Secretary of State’s attention in the decision notice … That would enable the Secretary of State to consider a supersession or revision'

Full decision CDLA/884/2008

A good decision for appellants in my opinion.

Well researched Jim, as I had the unfortunate experience on one or more occasion, for tribunals to tamper with the existing award without good reason. Fortunately, each time the tribunal's decision was overturned and subsequently set aside by the Commissioners.

For far too long in my opinion, tribunals have gone "hell bent for leather" when trying to remove an appellants existing entitlement, so much so that I took the view that tribunals were using their powers perversely, and in fact were using the procedure as a weapon, by saying to the claimant how dare you challenge the decision under appeal, when we have the power to reduce/remove your current entitlement. Tribunals were quick to use their discretion in this respect, and tamper with appellants' awards without proper explanation. The only appellants who were safe from this procedure, were the ones who went to tribunal with no award at all, and therefore had nothing to lose. Indeed, I referred to the situation where appellants were in front of tribunals in an attempt to have their existing DLA/AA award increased, as the "russian roulette scenario."

The decision quoted is not the first Commissioner's decision I have read which has addressed this particular issue, (I've two relating to my own case) and if tribunals can be relied upon to study the Tribunal Benchbook, which increasingly doesn't seem to be their forte any longer, then they will see that is not that easy or acceptable, to tamper with an appellant's subsisting award without proper reasons or explanation.