How to use Supersession regulations when challenging a reduction or removal of an existing benefit award
The following information will be particularly relevant for people who are having to challenge a decision to reduce or remove and existing PIP or ESA award following the completion of one of the DWP's regular reviews of entitlement.
Several Upper Tribunal decisions have made it clear that there is a need to show valid supersession grounds when changing existing PIP awards. You need to be alert to the DWP (or First-tier Tribunal) failing to identify sufficient grounds to supersede a decision.
Decision notices often contain little, if any, details of the supersession process that the DWP has used when altering an ongoing award. You may need to construct a time-line of events in order to ascertain the correct date and ground for supersession.
Under regulation 11 of the PIP regulations, the DWP has the ability to ‘determine afresh’ whether or not the claimant meets the disability conditions for PIP. However, as Judge Mesher confirms in KB v SSWP, this only provides the DWP with the power to determine whether or not the claimant meets the disability conditions. It does not provide the DWP with powers to make a decision about entitlement, and crucially it does not give the DWP power to supersede an ongoing award decision. Such a change can only be authorised by powers under the PIP Decisions and Appeals regulations.
The full details of KB v SSWP can be found here
The PIP regulations can be found here
Note, however, that if, during the process of determination under regulation 11 of the PIP regulations, the DWP requests information or evidence from the claimant or requires that s/he undertake an assessment, and the claimantwithoutgood cause fails to comply, the DWP must make a ‘negative determination’ of the claimant's entitlement.
Under the Decisions and Appeals regulations, this is a ground for a supersession of the award.
The Decisions and Appeals regulations give the DWP authority to supersede an award if they have received medical evidence from a healthcare professional. It is most likely that the DWP would, in the course of determining whether or not the claimant meets the disabilities condition, request medical evidence. But, as is established by the Upper Tribunal in KB v SSWP, regulation 26 only allows the possibility of supersession – it does not determine the outcome of the supersession. That outcome depends on the decision maker making a decision that takes into account all the relevant evidence when deciding whether or not the disability conditions are met. As Judge Wright makes clear in DS v SSWP, the regulations give no additional powers to the DWP, other than that provided by section 10(5) of the Social Security Act 1998, so the effective date of the supersession under regulation 26(1)(a) is the date that the decision is made.
The Decisions and Appeals regulations also give the DWP powers to supersede the decision when there has been a relevant change of circumstances, a determination under regulation 11 does not in itself amount to a relevant change of circumstances. The decision maker would have to identify a relevant change of circumstances to allow a supersession under regulation 23. The effective date of the supersession would be the date of the change of circumstances (or the date on which the change of circumstances was reported by the claimant if the change is advantageous to the claimant).
An additional ground of supersession, that the DWP has powers to revise a First-tier Tribunal award under regulation 31, is only relevant if the First-tier Tribunal decision was made in ignorance of some material fact.
Use of previous medical assessment reports
Two cases, SF v SSWP and DS v SSWP, confirm that First-tier Tribunals aren’t obliged to consider earlier medical reports – or any other evidence. However, unless the reasons are obvious, they do have a duty to provide at least a brief explanation as to why a previous award has not been continued. In both DS andSF, the claimant’s evidence was that her/his condition and needs had not changed since her/his previous award. These cases suggest that, in those circumstances, the First-tier Tribunal should provide an explanation as to why the previous award has not been renewed or an award has been terminated.
Full details of DS v SSWP can be found here
In a number of these cases, it is clear that the Upper Tribunal judges are concerned by the failure of the DWP to clearly identify the correct grounds and effective dates for supersessions. A First-tier Tribunal that repeats such failures will have erred in law. Judge Wikeley described one case (MR v SSWP) as a ‘pretty sorry tale’, where the tribunal ignored the need for supersession grounds and treated the case effectively as a new claim.
Full details of MR v SSWP can be found here
This recent caselaw has highlighted issues with DWP decisions and clarified the regulations the Secretary of State can use to alter on-going awards. In most cases, it should not be necessary to highlight the relevant caselaw, but it provides a useful indication of tactics you can use when challenging decisions that alter ongoing awards.
Changing an ongoing PIP award should not be treated in the same way as a new claim. When looking at a change to an ongoing award, you should check that:
This can appear to be a complex topic to understand, however for the purposes of the majority of Mandatory Reconsideration requests and appeal submissions, you should only need to highlight the fact that
"with reference to the regulations relating to the Supersession of a current award, the full evidence has not been demonstrated to have been considered, the correct grounds for Supersession (the justification and explanation for reducing an existing award) have not been documented and correctly identified and that the assessors report(s) that were used to determine the original award have not been considered and justification for not using the findings of that/those report(s) has not been provided by the decision maker. Therefore the Decision Maker has not considered or complied with the requirements of the regulations relating to the process of Supersession and as such the Decision Makers determination is not made in compliance with the relevant regulations"
The BASE adviser team will be happy to answer any questions you have on this matter or any other benefits questions that you need help and support with.
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