Latest offers – PIP appeals

In ‘An offer you can’t refuse?’ (Bulletin 273, p4), we questioned the lawfulness of the then policy of the DWP in how it dealt with revising decisions which were being appealed to the First-tier Tribunal. The DWP policy was that where the decision could be revised favourably, but so as to give the claimant less than the maximum s/he could possibly get if the appeal went as well as possible, then the revision should be carried out, causing the appeal to lapse, but only if the claimant indicated s/he was content with the decision and would not appeal further.

Changes to the policy

The lawfulness of the policy was challenged in judicial review proceedings brought by a claimant (referred to as ‘K’) to whom such an offer had been made. K was assisted by the Public Law Project. Faced with that challenge, the Secretary of State agreed to change her policy – the details of the changes are summarised in the consent order,1which sets out the basis on which K withdrew her claim for judicial review.

The policy, and the description of that policy set out in DWP guidance, has now been amended to reflect what was agreed in the consent order.

• Firstly, the DWP should tell claimants, before they accept the offer of a revision, that they will have a right of appeal against that decision as revised.
• Secondly, even if a claimant indicates that s/he will appeal any decision as revised, then the revision must still be conducted if that is what a claimant wants.

The policy is now set out in a revised best practice memorandum,2 which both Advice for Decision Making (paragraph A5160) and the Decision Maker’s Guide (paragraph 06161) require decision makers to refer to when making offers to revise decisions which are being appealed. The best practice memorandum has been added to the operational instructions which supplement Advice for Decision Making and the Decision Maker’s Guide.

The best practice memorandum also contains useful instructions about the requirement to contact representatives initially, and not to pressure claimants into accepting awards and to give them sufficient time to make a decision.

Rejected offers cases in the First-tier Tribunal

Meanwhile, in DO v SSWP (PIP) [2021] UKUT 161 (AAC) (Bulletin 283, p14), in which CPAG acted for the claimant, the Upper Tribunal considered the approach a First-tier Tribunal should take when considering an appeal against a decision where the claimant rejected an offer to partially revise the decision, and the appeal therefore continued against the original decision. In DO’s case, he was unrepresented before the First-tier Tribunal, which made an award of personal independence payment at a lower rate than would have been provided by the proposed revision which he had rejected.

Upper Tribunal Judge Wright emphasised that the relevance of the proposed revision in such proceedings is that it indicates to the First- tier Tribunal that the decision maker no longer considered the decision appealed against to be correct. In such circumstances, the ‘starting point’ of the First-tier Tribunal should be the proposed revision. The issues ‘raised by the appeal’ (ie, in dispute between the parties) have narrowed from the normal case of being one party supporting the decision under appeal and the other proposing a new decision. If the First-tier Tribunal’s view of the evidence is that the correct decision might be to award less than that starting point (ie, it seeks to reopen issues which the decision maker has in effect conceded, potentially awarding less than the rejected offer) then the First-tier Tribunal is required to put the claimant on notice of that. Fairness may require it to adjourn to allow the appellant to prepare to defend a case not advanced by the decision maker.

Advising appellants

DO v SSWP does provide procedural protections to appellants who continue with appeals where they have rejected an offer of a partial revision in their favour. However, just as a First-tier Tribunal can make a worse decision for a claimant than the one appealed against, it can award less than was offered in the rejected partial revision: in both cases, provided it properly exercises its discretion to do so and ensures the appellant is given notice so that the process is fair.

Advisers assisting with cases where offers of partial revisions are made will wish to consider the following.

• The claimant can accept the offer and, once the appeal lapses, file a new appeal against the decision as revised.
• Having the decision lapse and then needing to file a new appeal might add some time to how long it takes to finally resolve the issue.
• However, if that option is taken, the claimant will at least be paid the amount given in the revision while s/he awaits the outcome of her/his new appeal.
• It remains the case that the First-tier Tribunal has the power, properly exercised, to make a worse decision than that made in the revised decision.
• However, if that were to happen, the resultant overpaid amount would almost certainly not be recoverable (unless the benefit at issue was one in respect of which all overpayments are recoverable).

Given all of the above, in many cases the choice well-advised claimants may want to make is to say they will accept the offer and then file a further appeal (which thanks to the K case, the DWP now accepts is something they can do).

Advisers should also note that even if a claimant has at an earlier stage rejected a proposed partial revision, there is nothing that would stop her/him, prior to the appeal being decided, changing her/his mind and accepting it (the offer cannot be withdrawn unless the decision maker has changed its mind about what the correct decision is).

If representing at an appeal where an offer has been rejected, submissions should highlight that, following DO, the ‘starting point’ for the First-tier Tribunal should be the actual disputed issues remaining between the parties. It may need to be made clear that a First-tier Tribunal inclined to award less than was offered will need a basis in evidence to start down that path, and to ensure it alerts the representative when that appears to the First-tier Tribunal to be the case.