This case concerns the apparent DWP practice of making "offers" to claimants who have appealed a decision about their benefit entitlement. In such a case where the claimant states they would renew their appeal against a revised decision that gave them what was offered, the Decision Maker, following Advice for Decision Making 1, in a practice which the Minister now says is incorrect2, does not revise as offered but instead allows the case to proceed to the Tribunal. In particular it concerns the approach the First-tier Tribunal should take when faced with a case in which such an offer has been made and refused.
DO had an award of personal independence payment (PIP) at the standard rate for daily living. The Decision Maker obtained a further medical report and made a supersession decision removing the award. DO appealed against that decision. Whilst the appeal was pending, the Decision Maker "offered" to award DO the enhanced rate of daily living and the standard rate for mobility. DO did not accept that offer and because the Decision Maker did not revise the decision as set out in the offer, the appeal proceeded against the decision removing PIP altogether. The Decision Maker submitted to the First-tier Tribunal that its decision should be to give DO what had previously been offered. The First-tier Tribunal allowed the appeal but only to the limited extent that it awarded DO the enhanced rate for daily living. No award was made for the mobility component.
DO has obtained permission to appeal to the Upper Tribunal against the First-tier Tribunal decision.
The grounds of appeal are that:
- The Decision Maker who made the offer acted unlawfully in that if it was thought DO was entitled to PIP at the rates offered, the Decision Maker was under a duty to revise the decision under appeal in his favour. The fact that DO indicated that if that happened and his appeal lapsed he would make a fresh appeal against the revised decision, did not mean the Decision Maker could refuse to revise. That being the case, the First-tier Tribunal should have taken account of the Decision Maker's unlawful conduct in how it dealt with the appeal- either adjourning to allow DO to accept the offer made and then appeal the new decision (which would have given him some protection against the First-tier Tribunal giving a worse decision for him that the one he had appealed) or at least carefully and judicially exercising its discretion to accept a concession from the Decision Maker.
- Additionally, or alternatively, the First-tier Tribunal should have carefully considered the case made for a higher award by the Decision Maker in the response to the appeal and given cogent reasons for departing from it.
DO filed his appeal with the Upper Tribunal on 17 March 2020.
- 1. Advice for Decision Making para A5160-5161
- 2. https://www.parliament.uk/business/publications/written-questions-answer...