Revision and Supersession DLA/AA and PIP

The statutory structure – DLA/AA Where a decision made under s.8 SSA 1998 awarding benefit, the recipient is entitled to the award until the award comes to an end or it is legally changed. An award can be legally changed in two ways: –Revision under s.9 –Supersession under s.10

Revisions S.9(1) SSA 1998: –Any decision of the S/S made under s.8 or s.10 may be revised by the S/S on own initiative or on application Regulations 3-5 SSCS (Decision and Appeals) Regulations 1999 –These rules set out the criteria

Any Ground Revision Reg 3(1) – any decision of the S/S may be revised on any ground if: –he commences action within one month of the date of notification of original decision, or –application received by S/S within one month of the date of notification of original decision

Exceptions to the rule Corrections Mandatory reconsideration Late applications under Regulation 4

Any time revision Regulation 3(4A) –revision pending appeal Regulation 3(5) allows for a revision at any time but only on certain grounds: –ignorance or mistake as to fact –official error

Revision on ground of official error Regulation 3(5)(a) Defined in Regulation 1 but excludes error of law shown to be an error by a subsequent UT or court decision

Revision on ground of ignorance of or mistake as to fact Regulation 3(5)(c) –must be disability determination –decision made in ignorance of or based on mistake as to material fact –decision more advantageous to claimant –S/S satisfied that at time decision made, claimant knew or could reasonably have been expected to know of the fact and that it was relevant to the decision

Date on which revised decision takes effect S.9(3) SSA 1998 sets out the general rule: –‘…a revision…shall take effect as from the date on which the original decision took (or was to take) effect.’ Exceptions: –s.27 –regulation 9(5)

Supersessions S.10(1) SSA 1998: –Any decision of the S/S, FTT or UT made under s.8 or s.10 whether as originally made or revised may be superseded by the S/S on own initiative or on application Regulations 6-8 SSCS (Decision and Appeals) Regulations 1999 –These rules set out the criteria

Grounds for a supersession Regulation 6(2) sets out the grounds. The main ones relevant to DLA/AA are: –change of circumstance –Ignorance of or mistake as to material fact OR error of law –other grounds (the only thing to note is that Regulation 6(2) sets out a large number of grounds allowing a decision to be superseded not relevant to DLA/AA

Change of circumstance Regulation 6(2)(a)(i); –there has been a relevant change of circumstance or it is anticipated that a relevant change of circumstance will occur –Examples of a change of circumstance

Ignorance of or mistake as to material fact OR error of law Regulation 6(2)(b): –decision of S/S erroneous in law or made in ignorance of or based upon mistake as to material fact –application received more than one month after notification Regulation 6(2)(c): –Decision of FTT, UT made in ignorance of or based upon mistake as to material fact

Date superseded decision takes effect S.10(5) SSA 1998 sets out the general rule: –‘… a decision under this section shall take effect as from the date on which it was made or, where applicable, the date on which the application was made.’ The general rule is subject to –s.27 –regulations made under Regulation 10(6)

Change of circumstance - decision not advantageous to claimant Regulation 7(2)(c)(ii): –disability benefit decision –claimant fails to notify change of circumstances –Claimant knew or could reasonably have been expected to know change should be notified –date is when claimant should have notified the change of circumstances

Change of circumstance - decision advantageous to claimant Regulation 7(9)(a) –decision made on S/S initiative –date decision takes effect is when S/S commenced action Regulation 7(9)(b) –claimant notifies change within one month after change –date decision takes effect is the date claimant satisfied conditions –otherwise date is date of application (Regulation 7(9)(d)

Ignorance of or mistake as to material fact Regulation 7(5): – where the S/S supersedes a decision of the FTT or UT and the superseded decision was more advantageous to the claimant and the S/S is satisfied that at the time the decision was made the claimant knew or could reasonably have been expected to know of the fact in question and that it was relevant to the decision, the decision takes effect on the date on which the original decision took effect.

Dealing with supersession cases In considering whether there are grounds to supersede, it will be necessary to ascertain what facts were not known, or what facts were mistaken or what the change of circumstance is. CDLA/234/2013, [2011] UKUT 40 (AAC) CDLA/3765/2013, [2014] UKUT 309 (AAC). CDLA/3844/2012, [2013] UKUT 577 (AAC).

Differences between revision and supersession Date decision takes effect Appeal rights

Powers of the tribunal The options open to the tribunal include the following: –to treat an application for a revision as an application for a supersession and vice versa (JA v. SSWP [2014] UKUT 0044 (AAC). –to correct errors made by the S/S –to make an award less favourable than the one made

Personal Independence Payment The statutory structure –S. 9 SSA 1998 –S.10 SSA 1998 –UC, PIP, JSA and ESA (Decisions and Appeals) Regulations 2013 Parts 2 and 3

Revisions (PIP) – Any grounds The power to revise is under s.9 SSA 1998 Regulation 5(1) (2013 Regs): – the S/S may revise any decision relating to PIP if he commences action leading to a revision within one month of the date of the original decision. The period is extended by 14 days if a statement of reasons for the decision subject to the application for a revision is requested and provided –Similarly, the S/S may revise a decision relating to PIP if an application is received within one month of the date of the notification.

Revisions (PIP) – Any grounds Exceptions to the one month rule: –Regulation 6 (2013 Regs) allows for a late application for a revision –Regulation 7 (2013 Regs) deals with the need for a mandatory reconsideration before an appeal in relation to PIP can proceed.

Revision (PIP) on specific grounds Regulation 8 (2013 Regs): –a decision of the S/S under s.8 or 10 SSA 1998 may be revised at any time in the following circumstances Regulation 9 (2013 Regs): –Regulation 9(a): official error, –Regulation 9(b): ignorance of, or based on a mistake as to material fact and decision more advantageous than it otherwise would have been

Date on which revised decision takes effect S.9(3) SSA 1998 sets out the general rule: –‘….. a revision under this section shall take effect as from the date on which the original decision took (or was to take) effect.’ Exception –Regulation 21 (2013 Regs)

Supersessions (PIP) The power to supersede is under s.10 SSA 1998 Regulation 22 (2013 Regs): –A decision may be superseded on any of the grounds set out in Chapter 1 of Part 3 to the 2013 Regulations

Change of circumstances (PIP) Regulation 23 (2013 Regs): –S/S may supersede a decision where there has been a relevant change of circumstances or it is expected that a relevant change of circumstances will occur.

Date change of circumstances supersession takes effect (1) Part 2 to Schedule 1 of the D & A Regs 2013 Where the superseding decision is advantageous to the claimant and is made on the S/S’s own initiative, the decision takes effect on the date that the S/S commenced action with a view to a supersession – para 18 of Sch 1. Where the superseding decision is advantageous to the claimant in other circumstances, the superseding decision takes effect on the date on which the relevant change of circumstances occurs – para 12 of Sch 1. Under para 14, if such a change is notified to the S/S more than one month after the change occurred, the superseding decision takes effect from the date of notification of the change.

Date change of circumstances supersession takes effect (2) If a change is notified within one month of which the claimant first satisfied entitlement to a particular rate of PIP, the superseding decision takes effect from the date on which the claimant first satisfied the criteria – para 15 to Sch 1. Where the S/S is satisfied that the claimant failed to notify a change of circumstances which he was required to notify and could reasonably have been expected to know that the change should have been notified, the superseding decision takes effect on the date on which the claimant should have notified the change of circumstances – paras 16 and 17 to Sch 1.

Error of law, ignorance, mistake (PIP) Regulation 24 (2013 Regs): –the decision was wrong in law, or was made in ignorance of, or was based on a mistake as to some material fact, and –the application for a supersession was received, or the S/S took a decision to act on his own initiative, more than one month after the notification of the original decision The date from which the supersession decision in such a case is effective is governed by the rule set out in s.10(5) of the SSA 1998

Receipt of medical evidence (PIP) Regulation 26 (2013 Regs): –the S/S has received medical evidence from a HCP –the S/S has made a determination that the claimant is to be treated as having LCW or LCWRA, or –where there has been a negative determination, where the claimant has breached the requirement to provide information or evidence or participate in a consultation without good reason.

Supersession after the relevant age (PIP) If a request is made to supersede a decision awarding PIP to which the claimant was entitled on reaching the relevant age and that application is based on a change of circumstances which occurred after the relevant age and the original award was for the standard rate of mobility component, only that rate can be awarded even though the conditions for the enhanced rate are met.