Risks at Appeal

I posed an earlier question but didn't explain it very well.

At a recent ESA application, the claimant was awarded 9 points and so was not granted ESA. He appealed and lost but the Tribunal changed the 9 points to 0. Can they do this??

carmind wrote:

I posed an earlier question but didn't explain it very well.

At a recent ESA application, the claimant was awarded 9 points and so was not granted ESA. He appealed and lost but the Tribunal changed the 9 points to 0. Can they do this??

The short answer is yes.

As the tribunal hearing is in effect a complete re-run of the claim and decision (with the benefit of the panel being able to observe and speak with the claimant), the panel are free, within the law to decide on the claim. As can be seen, that sometimes can lead to a lower or no award.

Pete

The simple answer is "Yes, they can".

The tribunal effectively re-assess the case from scratch. So they have the power to reduce the award as well as to increase it.

I believe it's rare for them to award less, probably because ATOS seem to be so parsimonious with the points! Certainly there are very few posts on this forum from people who have had this happen.

Oops. Sorry. Pete's reply wasn't there when I started mine.

By the way, as this is rare do you have any idea what happened? E.g. were they assessing the claimant on current condition rather than at date of decision? Just wondering if there might be a point of law lurking on which to base an appeal...

You'tr right - that's what we're hoping and have asked for the full tribunal report

If a Tribunal is considering reducing or taking away a current award, then they have to follow the procedure given in section 70 of 'The Benchbook'. Full copy in the members area.

Section 70. WARNING

1. In certain situations it may be necessary for the tribunal to give a ‘warning’ to an appellant that he might end up losing an existing entitlement if he proceeds with
his appeal, and that he might therefore wish to consider withdrawing the appeal or adjourning to seek advice.

2. This will arise most often in a disability living allowance appeal where for example the appellant has an award of middle rate care but in their preview the tribunalconsider that the evidence only supports lowest rate care or indeed no award of care at all. It could also arise in an industrial injuries disablement or an
overpayment appeal.

3. In these cases the appellant must, in the interests of natural justice, be told at the beginning of the hearing that the tribunal has the power in appropriate cases to
remove or reduce an existing award because he may not have appreciated this and may think that his existing award cannot be touched, particularly when he has
only appealed against the other disability living allowance component.

4. And sometimes even a representative will say:“We are only asking the tribunal to consider the mobility component, we do not want you to consider the existing award of middle rate care component - we are happy with the existing award of middle rate and that is not in issue.”But whilst it might not be in issue as far as the representative is concerned it can be put in issue by the tribunal if they consider it appropriate to do so, by virtue of section 12(8)(a) Social Security Act 1998 which, in stating that the tribunal ‘need not consider any issue that is not raised by the appeal’, makes it clear that the tribunal can consider any such issue if it decides to do so.

5. When to give the warning? Should a warning be given in every case where the appellant has an existing award, or only where there is evidence that suggests
the award might be at risk? It is suggested that the latter is preferable, as otherwise the appellant’s anxiety might be needlessly increased. There is in fact a note
within the Information Leaflet sent out to appellants along with their Appeal Enquiry Form as follows:-

Please bear in mind that the Tribunal cannot change the law. It has to apply the law as it stands, even if that leads to an outcome that you think unfair. Within those
limits, the Tribunal has the power to change the decision you are appealing against with the decision it thinks ought to have been made. Sometimes this might
leave you worse off.So this can be quoted to the appellant if necessary to counter the suggestion that ‘nobody had ever told him.

6. How to give the warning? If the appellant is represented, ask if the possible loss of an existing entitlement has been previously discussed – if the representative
is competent it should have been but if not, allow time for the appellant and his representative to leave the tribunal room and discuss the options (proceeding or
withdrawing).

7. If the appellant is not represented, he should be given time to think about whether to adjourn, withdraw or proceed. He may well not have noticed the statement in the information leaflet and so will not have been aware until now that his existing award might be at risk, and he must therefore be given the opportunity to think about it and seek advice on the matter if he wishes (and if skilled advice is locally available). If however he insists on going ahead on the day despite the warning and if the tribunal are satisfied that he fully understands the risk then the tribunal should go ahead – obviously noting the record of proceedings appropriately.

8. If it only becomes clear during the hearing that the appellant might lose an existing entitlement, e.g. when he gives evidence about walking which suggests his
award of higher rate mobility might not be correct, a warning should then be given, perhaps after asking the parties to leave the tribunal room for a short recess to
enable the tribunal to discuss the issue further – then proceed as above, depending on whether or not the appellant is represented.

9. How should the warning be phrased? Whatever is said might give the impression that the case has been pre-judged, but a formula such as the following might
be suitable –
‘It is important that you realise that we have the power to increase an award, to leave the award as it is, or to reduce or remove it altogether. We have not yet made
a decision on your appeal and will not do so until we have heard all the evidence but from the evidence in the papers/given by you today it seems to us that your
existing award may be at risk if you go ahead with the appeal. We are therefore going to give you some time to consider what you want to do.’
Then the three options - adjourning to another day to seek advice, withdrawing the appeal or proceeding with the hearing – should be explained clearly to him. If
asked, there is no ho harm in pointing out which evidence has given rise to the doubt.

10. Then proceed as above, making sure to note it all on the record of proceedings.

11. Even though a warning has been given it is not necessary to exclude the members of the tribunal from the next hearing if the case is adjourned, at any rate if no evidence has been taken. If evidence has been taken then the adjourned hearing must be before the same tribunal or an entirely differently constituted tribunal.

12. AND NOTE that you should include in any full statement a sentence or two stating that the tribunal decided to exercise its judicial discretion to apply section 12 (8)(a) and put the other component/award in issue even though neither party to the appeal had done so and stating why. This has been emphasised in two Tribunal
of Commissioners’ decisions, namely R(IB)2/04 and CDLA/2899/2004. In paragraph 94 of the former decision it was said –

‘There must however be a conscious exercise of this discretion and (if a statement of reasons is requested) some explanation in the statement as to why it was necessary.

{i} Mod note: Much of section 70 was written in context of DLA Tribunals, but equally applies to all SS Appeals including IB & ESA [/i]