This case concerned the approach the First-tier Tribunal should take when faced with a case in which the DWP had offered to revise a decision that a claimant had appealed but the claimant had elected to continue straight to appeal.
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. Thus the Tribunal awarded DO less than had been offered by the Decision Maker.
DO obtained permission to appeal to the Upper Tribunal against the First-tier Tribunal decision.DO filed his appeal with the Upper Tribunal on 17 March 2020.
The Upper Tribunal, following a hearing, gave its judgment on 02 July 2021 and concluded that:
41. I consider that the tribunal erred in law in its approach to the Secretary of State’s proposed revision decision and the effect that proposed decision had on the issues that arose on the appeal before the tribunal. The error of law here extends beyond the Secretary of State’s view that, as a matter of fairness, it was incumbent on the tribunal to establish the basis of the Secretary of State’s altered stance and then make findings on its merits. The problem, in my judgment, with this analysis is that it relegates the Secretary of State’s altered stance merely to an evidential consideration for the First-tier Tribunal to address and fails to recognise the status of the Secretary of State’s statutory role in the social security adjudicatory machinery. It also fails to recognised the effect which the Secretary of State’s stance had in reality on the decision under appeal to the tribunal and/or on the issues that arose on the appeal from that decision.
The Upper Tribunal then explains, at paragraphs 42 to 46, that the changed stance of the Secretary of State meant that the starting point for the First-tier Tribunal as to what issues were raised by the appeal should have been the proposed revision as the components of PIP the Secretary of State had offered were no longer in dispute between the parties:
Taking account of all of this, the tribunal was therefore wrong in law, in my judgment, to approach the appeal before it, as it did at the start of the appeal hearing before it, as if entitlement to the enhanced rate of the daily living component or the standard rate of the mobility component were still in issue on the appeal. (para 46)
The Upper Tribunal then went on to hold that given this should have been the First-tier Tribunal's starting point fairness required that it should have put DO on notice that it was considering making an award of less than had been offered. Further, in the particular circumstances of DO's case fairness may very well have required it adjourn at that point:
47. Once this correct starting point is recognised, in my judgment the tribunal was required as a matter of law and considerations of fairness underpinning that law to put the appellant on notice if an issue was, or became, clearly apparent from the evidence about the appellant’s entitlement to the standard rate of the mobility component or his entitlement to the daily living component. And given the appellant was unrepresented and has autism, fairness in these circumstances may very well have necessitated adjourning the appeal: see, by way of example, paragraphs - of MS v SSWP (DLA and PIP)  UKUT 41 (AAC). The tribunal gave no such consideration and proceeded, without any appropriate ‘warning’, to investigate and determine whether the appellant had any entitlement to the mobility component of PIP, and that constituted a material error of law on its part.
The Upper Tribunal remade the decision and awarded DO the same as what was offered in the proposed revision (DO had by this time received advice and agreed this was the best outcome he could obtain).
The decision of the Upper Tribunal should provide procedural protection to claimants who continue with appeals rather than accepting proposed revisions: effectively any First-tier Tribunal which wants to award less than the rejected offer will need to consider the same sort of issues they would do if wanting to make a decision that was worse for the claimant than the one appealed.
NB: The DWP have, in judicial review proceedings brought by Public Law Project, agreed to change their guidance such that if a claimant wants them to revise the decision they will conduct the revision even though the claimant states they will bring a further appeal.