An offer you can’t refuse?

The issue

CPAG is aware that claimants who appeal against decisions about PIP are sometimes contacted by the department prior to the response to the appeal being sent to them and to the tribunal with an ‘offer’.

These offers express a willingness on the part of the decision maker (DM) to revise the decision under appeal such that some rate of PIP will be awarded, but at a rate, or for a period, less than has been argued for in the a peal. The offer is put in such a way as to indicate that the decision will not be revised if the appellant indicates that they do not agree to accept it.

That is consistent with the guidance in Advice for Decision Making at A5159 to A5161. That says, in part:

‘So where a revision would not give the claimant all they are asking for in the appeal, the DM will contact the claimant before revising to ask them if they would still want to appeal if the revised decision were made. If the claimant says they would […] still appeal, then the decision would not be revised and the appeal goes ahead with our response including details of the revised decision and that we cannot revise the decision as this would mean the appeal would have to lapse.’

The DWP’s stated position is, therefore, that it will not revise a decision which it now accepts gives a claimant less benefit than it should, in a case where the claimant indicates that s/he will appeal against the revised decision in any event. The rationale for that position is said to be because if it did revise, the appeal would lapse.

Is this lawful? And what should a claimant faced with such an offer do?

Can the decision maker refuse to revise?

The decision maker has a power to revise a decision which is subject to an appeal (regulation 11(1) of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013, No.381. Previous caselaw holds that, generally, where the decision maker is of the view that a decision can be revised in a claimant’s favour, then s/he is under a duty to actually carry out the revision – paragraph 39(5) of the Tribunal of Commissioners’ decision R(IS) 15/04 (which does accept some residual discretion not to do so but only in limited circumstances).

The question is whether not wanting to lapse an appeal where the claimant has indicated s/he will appeal against the revised decision anyway falls within that residual area of discretion. It is arguable that it does not and that the decision maker in these cases is legally required to actually conduct the revision in any event (even if the claimant has indicated s/he will file a new appeal against the decision as revised). R(IS)15/04 is clear that, in considering when it might be appropriate not to revise, regard should be had to what would be for the benefit of the claimant overall. It is not clear that it is ever to the advantage of a claimant not to have a revision carried out.

1. If the decision maker was to revise the decision and give a claimant some, but not all, of what s/he was seeking on an appeal, that would cause the appeal to lapse. However, the claimant would then have a right to bring another appeal against the decision as revised (and would not need to seek a further revision before doing so).
2. Although this would introduce some additional delay for the claimant, bearing in mind the offers are typically made during the 28 days in which the decision maker is supposed to be preparing a response, this would not be long (as the first appeal had not been extant for long and so restarting the process does not cause much delay).
3. Additionally, the bad effects of an additional delay of a few weeks would be much ameliorated by the fact that the claimant could at least be paid the arrears flowing from the revision and be getting at least some benefit while the appeal was pending.
4. Furthermore, a claimant with an existing award of PIP seeking a higher rate is in a better position at appeal than a claimant appealing a decision where no award at all was made. In the former case, the tribunal need not examine the existing award and generally would need a good reason to do so (see section 12(8)(a) of the Social Security Act 1998). That means the claimant in such a case has some degree of protection for at least part of the award.

Given all of the above, it is difficult to see that it is appropriate for the decision maker to refuse to revise simply because the claimant indicates s/he will appeal the decision as revised.

What should a claimant do?

A claimant to whom an offer is made would be well advised to accept it – ie, to request the decision maker carry out the revision and give her/him at least part of what s/he wanted. A claimant who is entirely happy with the revised decision (ie, where s/he has been given all s/he was contending for) is of course not obliged to continue with the appeal and so can say s/he is happy with the revision and then not pursue the appeal. However, even where the claimant is not entirely happy with the offer and will still want to appeal, the decision maker should be requested to do the revision. Arguably, a decision maker who refused to revise in those circumstances could face a challenge via judicial review.

If a claimant has accepted an offer but then changes her/his mind and decides that s/he wants to appeal in any event, s/he will still have a right of appeal. A claimant almost certainly does not lose her/his right of appeal through having undertaken not to exercise it, and cannot be bound by such an undertaking.

What should tribunals do about offers?

If the decision maker’s offer has not been accepted and no revision was carried out, then the DWP’s response to the appeal should support the appeal to the extent that the decision maker had been prepared to revise. The First-tier Tribunal is not bound to award at least as much as the decision maker had previously ‘offered’ to make. But a tribunal faced with such a case will need to provide very clear reasons if it does not award the claimant at least what the decision maker was prepared to. The tribunal should arguably also be mindful of the fact that the decision maker should have carried out a revision, and that the claimant has been placed in a worse position on appeal the failure to do so.