DLA Appeal can not be heard

maria09

Hi all
In june 2010 made claim for DLA care and some backdating. After 2 recons was awarded HRC and told had to go to tribunal for backdating.
Went to appeal yesterday for the backdating of dla, Can anybody tell me what happened as I'm completely gobsmacked.
The chair woman stated the panel couldn't hear the appeal and I needed to get a solicitor to explain the DWP rules. I thought i had a legal right for the tribunal to hear my appeal.

rogerblack

maria09 wrote: »

Hi all
In june 2010 made claim for DLA care and some backdating. After 2 recons was awarded HRC and told had to go to tribunal for backdating.
Went to appeal yesterday for the backdating of dla, Can anybody tell me what happened as I'm completely gobsmacked.
The chair woman stated the panel couldn't hear the appeal and I needed to get a solicitor to explain the DWP rules. I thought i had a legal right for the tribunal to hear my appeal.

Did they give no explanation?
You need to ask the tribunal service for a statement of reasons first - this will explain what they did.
However - if they refused to hear the case at all - I'm unsure if this would apply.

In short - as I understand it - the tribunal can only generally do something that the person making the original decision under appeal could have done at the time.

So, if you are appealing against a decision to not grant you benefit, and the person making that decision did not have the power in law to grant you benefit - the tribunal could not help.
It seems odd not to inform you of the reason for not hearing the case.

Can you give some more details?
Were the reconsiderations solely by the DWP - the tribunals service was not involved?

Anyway - my first step in this situation would be either to contact CAB or someone, or to ask the tribunals service for a statement of reasons on the decision not to hear the case.
I'd also contact the DWP, and ask them for their reasoning - requesting a statement of reasons if needed - to refer you to the tribunals service.

maria09

Hi.
All the recons were dealt with by the DWP. In Sept last year we were awarded middle rate care and refused the backdating, we then asked for another recon and after a week or so were told I could have higher rate but still not have the backdating. this backdating would pre-date my claim and therefore would have to be dealt with by the tribunals service. went to tribunal yesterday and was informed that they were unable to hear my appeal not just for that day but were not able to hear it ever. All they were allowed to say was that I should contact a solicitor who new the laws/rules of DWP. Thats all they said, they never mentioned if my claim was wrong or if the DWP had done something wrong.

Richie-from-the-Boro

You can appeal and move the rate but not the date - DLA & AA claims can not be backdated.


Linked qualifying benefits can be backdated, examples of linked benefits:

- getting AA or DLA mid/high rate care means carer may claim Carers Allowance
- a person can get long term rate of Incapacity Benefit after 28 weeks if they get DLA highest rate care component
- getting AA or DLA at any rate qualifies claimant for the Disability Premium with Income Support or JSA-I
- getting AA or DLA mid/high rate care component may qualify claimant for the Severe Disability Premium with Employment and Support Allowance (income related), Income Support or JSA-I (there are additional rules)
- getting Carers Allowance qualifies claimant for the Carer Premium with Employment and Support Allowance (income related) and Income Support
- getting Severe Disablement Allowance or Incapacity Benefit long term rate qualifies claimant for the Disability Premium with Income Support

maria09

Hi.
Whilst I understand that the DWP have rules set down in law that they must stick to, I also have a right of appeal set down in law. I asked the DWP for advice about this claim in feb 2009 and was told that as I was unable to state if my symptoms were going to last for more than 6 mths I was not able to claim. I have heart failure which was diagnosed in 2006 but had become worse over time but as the cardiologist took a while carrying out test and then giving me a diagnosis that it was worse than expected I was not able to claim this benefit. The DWP have accepted that I would have needed the benefit but refuse to do anything about it. In sept last year when they raised my care from middle rate to higher rate and still refused to allow my claim for backdating they took away my right to appeal but still let me go to a tribunal.

P4ula

To the Op, if what you are trying to 'appeal' is existing legislation in respect of DLA, then the tribunal was correct in not hearing the case as the regulations cannot be appealed.

So for example DLA can only be backdated in very specific situations (within the regulations). If you did not get it backdated due to a reason being outwith the regulations (and you are disagreeing about this regulation) it is not a valid reason for a tribunal to look at the at the case.

What the tribunal panel have done sounds like to advise you to get someone (a solicitor maybe or a welfare rights adviser) to explain the legislation to you and demonstrate why your request for backdating falls outwith the relevent regulations.

P4ula

rogerblack

maria09 wrote: »

Hi.
Whilst I understand that the DWP have rules set down in law that they must stick to, I also have a right of appeal set down in law.

Not quite.

The tribunal examines a decision that has been made by a Decision Maker, and can re-make that decision in any way that the original decision maker could have legally done.

This ruling then (typically) means that the decision is treated as having been made in the way that the tribunal directs.

What the tribunal cannot do is to to do things not allowed by law - to apply backdating where it cannot occur, or to pay you a different rate of benefit than the law allows.

If the appeal was on the most recent decision to grant you DLA, but to not grant the backdating, then it was doomed to fail, because the Decision Maker could not legally have backdated it. And indeed, you may have a cause of complaint against the DWP for their incompetence and timewasting.

I am unsure of the details of this area of benefits law.
However.

I think what you 'meant' to do (though not knowing it) was to see if there was any appealable decision made in Feb 2009 to refuse you DLA.
Did you actually put in a claim form?

If there was such a decision made, is a late appeal possible.
(If the time limits for a late appeal have run out, had they run out at the time you were advised to appeal to the tribunal)

This is a specialist area though, finding someone familiar with the procedures of the DWP would be good.

Richie-from-the-Boro

maria09 wrote: »

Hi all
In june 2010 made claim for DLA care and some backdating. After 2 recons was awarded HRC and told had to go to tribunal for backdating.
Went to appeal yesterday for the backdating of dla, Can anybody tell me what happened as I'm completely gobsmacked.
The chair woman stated the panel couldn't hear the appeal and I needed to get a solicitor to explain the DWP rules. I thought i had a legal right for the tribunal to hear my appeal.

What you are asking for is repeal not appeal, the law exists and was applied by the chairperson, you would need politicians to repeal a law so you can appeal a decision properly applied with the existing legislation and case law.

I cant think of any way you can challenge the tribunals decision, let alone finding and applying any special reasons, and even if you did you would have to pre-prove you had reasonable prospects of success, or pre-prove it is in the interests of justice to allow it.

I've just checked through 2011 case law for this area and as expected nothing new.

dmg24

Richie-from-the-Boro wrote: »

What you are asking for is repeal not appeal, the law exists and was applied by the chairperson, you would need politicians to repeal a law so you can appeal a decision properly applied with the existing legislation and case law.

I cant think of any way you can challenge the tribunals decision, let alone finding and applying any special reasons, and even if you did you would have to pre-prove you had reasonable prospects of success, or pre-prove it is in the interests of justice to allow it.

I've just checked through 2011 case law for this area and as expected nothing new.

Judicial Review, ECHR? Not a route I would recommend, but possibilities.