In this article, titled “DWP changing decision before tribunal” we talk about the circumstances in which the DWP can change their decision before an appeal, and whether this is something that happens often or not.
DWP changed their decision before the tribunal. Is it possible?
Yes, the DWP can revise a decision on receipt of an appeal.
That lapses the appeal. The claimant then has a fresh right of appeal against the revised decision, if unsatisfied with the Decision Maker’s decision.
Below you will find an excerpt from the Advice for decision making, chapter A5.
This chapter clarifies what changes and further claims can be made during the period before a hearing.
ADM- Chapter A5
Claimants can only appeal to an FtT where the DM has first considered an application for revision of the original decision.
Where a claimant makes an appeal before mandatory reconsideration has been requested then the appeal should be treated as a request for a mandatory reconsideration.
If following the mandatory reconsideration, the claimant wishes to pursue an appeal then they must send their notice of appeal directly to HMCTS.
HMCTS will then send the notice of appeal to DWP along with the mandatory reconsideration notice and any supporting documents to request that a response is prepared.
When making their appeal to HMCTS, the claimant must include with their notice of appeal, a copy of the notice of the result of the mandatory reconsideration issued by DWP1.
Where the mandatory reconsideration notice has not been included, HMCTS will return the notice of appeal to the appellant and advise that the appellant either:
1. provide the mandatory reconsideration notice or
2. contact DWP to request a mandatory reconsideration if one has not already been carried out.
Once the DM receives the request for an appeal response from HMCTS, this is the point at which the DM should:
1. identify cases that are out of the FtT’s jurisdiction or that have no reasonable prospect of success and apply to the FtT for strike out or
2. revise the decision to the claimant’s advantage if further evidence enables them to do so and so lapse the appeal.
The DM must notify HMCTS and the appellant if any decision under appeal is changed by revision or supersession.
The DM must tell the FtT in the appeal response what the effect of the revision or supersession will have on their jurisdiction, for example,
1. appeal lapsed
2. appeal now against unfavourable revised decision
3. jurisdiction limited to period/issues not covered by the supersession.
Changes and further claims during the period before a hearing
DMs should note that the FtT may take account of evidence produced after the decision under appeal, where it provides information relevant to that decision.
For example, where the claimant produces a medical report showing a change of diagnosis, the FtT can consider the report.
Any circumstances which change after the date of the appealed decision cannot be taken into account by the FtT1.
Any changes should be referred to the DM to consider whether supersession is appropriate.
The DM may supersede the decision under appeal before the appeal is heard. However, the appeal does not lapse.
Where a further claim is made and has been determined, the FtT cannot consider any period after the effective date of the decision on that claim.
The FtT should always be informed in a further response where a further claim is decided before the hearing.
Once the appeal is heard and the FtT has made a decision, the DM may need to revise any:
1. decision on a further claim or
2. superseded decision
DWP change decision before tribunal – Lapsing an appeal
Where the appeal is accepted by HMCTS, the DM can still consider revising the decision under appeal, the outcome determines whether the appeal lapses.
An appeal should lapse where the revised decision is to the claimant’s advantage. Note: An appeal cannot lapse where the decision is superseded.
The purpose of lapsing an appeal is to prevent unnecessary appeals going ahead.
The power to revise is discretionary rather than mandatory, and should not be used in order to prevent an appeal being heard.
DMs are therefore advised to consider whether a decision under appeal should be revised where:
1. the revision does not address the issue which is the subject of the appeal and
2. it is likely that a further appeal will be made.
Note: Once the DM actually makes that revised decision then the appeal must lapse so it is important that the DM considers whether a revision is the appropriate course of action to take.
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 or
- be happy with the revised decision, the DM would make that revised decision and lapse the appeal. The claimant would be informed of their appeal rights against the revised decision.
Note: If the claimant cannot be contacted then the appeal should not lapsed.
The DM decides that a claim for UC should be disallowed from and including 17 January on the grounds that the claimant’s income exceeds the maximum amount of the award.
The mandatory reconsideration confirms the earlier decision.
On receiving the appeal from HMCTS, the issue in the appeal is whether the claimant has income, the DM notices that the date of disallowance is incorrect, and should have been 19 January.
The DM does not revise the decision, and the appeal goes ahead.
The DM decides that an overpayment of PIP of £10,855 is recoverable. The mandatory reconsideration confirms the earlier decision.
The decision is reconsidered on appeal, the issue is whether the overpayment is recoverable.
The DM notices that the amount of the overpayment has been incorrectly calculated, and should be £10,835.
The DM does not revise, and the appeal goes ahead.
The DM decides that there has been an overpayment of UC of £10,855. The mandatory reconsideration confirms the earlier decision.
The decision is reconsidered on appeal, the issue is whether the amount of the overpayment is correct.
The DM notices that the amount of the overpayment has been incorrectly calculated, and should be £6,255.
The DM contacts the claimant who says they are happy with this and do not want to continue with the appeal.
The DM revises the decision and the appeal lapsed.
Where the decision is not revised, but the DM considers it to be incorrect, the response should:
1. advise the tribunal why the decision is not revised and
2. request that the correct decision is substituted for that of the DM.
A decision is to the claimant’s advantage when the outcome is that:
1. any benefit paid to the appellant is greater or for a longer period as a result of a revision 2. it would have resulted in a greater amount of benefit being payable but for the effect of any restriction or suspension of payment of, or disqualifying a claimant from receiving some or all of the benefit or
3. as a result of the decision, a denial or disqualification for the receiving of any benefit if lifted wholly or in part or
4. it reverses a decision to pay a benefit to a third party or
5. the amount of a recoverable overpayment is reduced or is no longer recoverable or
6. a financial gain has or will accrue to the claimant as a result of the decision.
This list is not exhaustive and each case should be considered on its facts.
Where an appeal lapses because the decision is revised, the new outcome decision carries a new dispute period and appeal rights.
The claimant and HMCTS should be notified that the appeal has lapsed.
In this article we talked about whether it is possible for the DWP to change their decision before a tribunal hearing.
And we found out that yes, the DWP can revise a decision on receipt of an appeal. That lapses the appeal.
The claimant then has a fresh right of appeal against the revised decision, if unsatisfied with the Decision Maker’s decision.
Did this happen to you or to someone you know?
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FAQ on DWP change decision before tribunal
How long does a DWP tribunal take?
A DWP tribunal, from beginning to end, can take several months sometimes.
After you made your request for an appeal, the DWP should respond to HMCTS within 28 calendar days.
HM Courts and Tribunals Service will also write to tell you what will happen next.
What if I disagree with the tribunal decision?
If you disagree with the tribunal decision, you can apply to the tribunal to ask it to review its decision, orally at hearing or in writing within 14 days of the date the decision was sent by the Office of the Tribunals.
Do I have to attend a tribunal?
If you asked for an oral hearing, you will have to attend the tribunal.
You can also bring along a representative to speak for you.
However, this is not mandatory, and sometimes the Judge might still ask you to speak.
How long do you have to wait for a tribunal?
For a tribunal, you have to wait for 2 to 3 months once your appeal has been accepted.
You can always contact the tribunal while waiting, and they should give you an update on the wait time.
What happens at a PIP tribunal hearing?
At a PIP tribunal hearing your claim and the evidence that you brought will be discussed by a judge and a panel composed of a doctor and an expert in disability issues.
At the tribunal, you will be called “the appellant” and the DWP “the respondent”. You will also be asked to describe how an average day looks for you.
How long does PIP take after tribunal?
After the tribunal, it might take from a few days to a few weeks to receive the PIP tribunal decision.
If your appeal is successful, you’ll receive your new amount of money every 4 weeks. The DWP will also have to pay you everything they should have been paying you from the date of your claim.
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Chapter A5: Appeals – PIP and UC only