Supersession of old decision

tatonette

I wonder if I could tap into someones knowledge about supersessions.

The case in question is that a decision was made in 2005 by the DWP in ignorance of a material fact. The decision was never appealed against at the time.

Subsequently medical evidence has recently been sent to the DWP (which was available in 2005 but never forwarded to the DWP) in applying for a supersession of the 2005 decsion on the basis that it was made in ignorance of a material fact.

The DWP have agreed and have started to pay the benefit from when the application for supersession was made (August 2011).

What I want to know are two parts. Should it not be backdated to 2005 as that decision has now been accepted as being completely wrong.

If it can't be backdated, how does this sit when the DWP can apply for a supersession when they find that the claim is fraudalent and can recover the benefit from when the first decision was made.

To me the DWP want their cake and eat it!

Prove the DWP are wrong and no backdate, yet they can backdate to recover a benefit.

Emmzi

I think the morality rests on the appeal not being made in 2005. All methods available to the applicant at the time ere not exhausted. Therefore the DWP did not have the opportunity to "do the right thing."

munchings-n-crunchings

tatonette wrote: »

.

The decision was never appealed against at the time.

Subsequently medical evidence has recently been sent to the DWP (which was available in 2005 but never forwarded to the DWP) in applying for a supersession of the 2005 decsion on the basis that it was made in ignorance of a material fact.

Firstly, if the claimant believed the decision was incorrect, then it should have been appealed at the time. If an award is outright turned down, then there is noting to lose, If an award is lower, then more consideration is needed before appeal, as the whole award will be looked at, and could be lowered or declined a well a being increased.

When preparing a claim, it is in the best interest of the claimant to provide medical reports etc. that back up their claim, and not expect the DWP will ask or request them. I would not be sat on any prize pieces of information that can assist in gaining the correct award, and not submitting it

Regards
Munchie

tatonette

Emmzi wrote: »

I think the morality rests on the appeal not being made in 2005. All methods available to the applicant at the time ere not exhausted. Therefore the DWP did not have the opportunity to "do the right thing."

I agree with you, but in this case due to illness, hospitalisation etc., it was not possible. After time it was then believed that it could never be reopened. However it was found that notwithstanding the delay, if it could be proved to the DWP that (a) they made the decision in ignorance of a material fact and (b) that there were good reasons from 2005 to 2011 at to why the matter could not be dealt with by the claimant, the DWP would 'reopen' the decision.

This is what happened, the DWP accepted both and agreed that the 2005 had been made incorrectly, and that there was no ability to deal with it before 2011.
All of that is now agreed and they have superceeded the 2005 decision.

However they are refusing to pay the benefit from 2005 even though they have accepted all of the submissions.

What makes me unhappy is that if this had been a case of THEM making a decision in ignorance of a material fact they would recover all of the benefit as far back as when that decision was originally made by supersession to 2005 - yet they will not do the opposite.

tatonette

munchings-n-crunchings wrote: »

Firstly, if the claimant believed the decision was incorrect, then it should have been appealed at the time. If an award is outright turned down, then there is noting to lose, If an award is lower, then more consideration is needed before appeal, as the whole award will be looked at, and could be lowered or declined a well a being increased.

When preparing a claim, it is in the best interest of the claimant to provide medical reports etc. that back up their claim, and not expect the DWP will ask or request them. I would not be sat on any prize pieces of information that can assist in gaining the correct award, and not submitting it

Regards
Munchie

Yes of course an appeal should have been submitted, but it wasn't due entirely to poor health.

The DWP have accepted this as well as the fact that they were completely wrong in making the 2005 decision.

This is a DLA claim for my child. It was up for review in 2005, completed the form, and was told that there was no entitlement despite High Care being given previously.

I agree that evidence should have been sent in with the review claim, but it wasn't. Not everybody has the mental capacity or ability to understand the rules and regulations relating to DWP disability/sickness claims.
Most just see a form, fill it in and wait to see what happens.

Some people don't even realise that the evidence that they are sat on is that important either.

But at the end of the day, the DWP have agreed that it was their mistake in 2005, they have even agreed that they should have contacted at least one of the claimant's medical advisors for a report. They have apologised for this. They have also accepted that the claimant was in no position whatsoever to deal with their affairs from 2005 until 2011.

All I am asking is if the claim cannot be backdated to 2005, why is it possible that the DWP can claim the same thing in a fraud case?
It seems to be one law for them and another for the rest of us.

amus

So are you saying that you didnt submit a piece of evidence which was relevant to a decision made by the DWP, but that its the DWP's fault for making the wrong decision?

To be honest it seems very strange to me that the DWP have admitted any fault in this whatsoever, its not practice for the DWP to chase up a claimants medical evidence, the onus is on the person claiming or their representative to send in any evidence relevant to the claim. The DWP can change a decision in light of new evidence, but this doesnt mean they are admitting fault, they are simply saying new evidence has come to light which allows the original decision to be changed.

As there was no appeal made at the time, and it isnt actually the fault of the DWP, I doubt anything would be backdated to 2005.

tatonette

amus wrote: »

So are you saying that you didnt submit a piece of evidence which was relevant to a decision made by the DWP, but that its the DWP's fault for making the wrong decision?

To be honest it seems very strange to me that the DWP have admitted any fault in this whatsoever, its not practice for the DWP to chase up a claimants medical evidence, the onus is on the person claiming or their representative to send in any evidence relevant to the claim. The DWP can change a decision in light of new evidence, but this doesnt mean they are admitting fault, they are simply saying new evidence has come to light which allows the original decision to be changed.

As there was no appeal made at the time, and it isnt actually the fault of the DWP, I doubt anything would be backdated to 2005.

No not at all.

I know it isn't the fault of the DWP. I had the evidence, but due to illness, I was not in a position to deal with the matter.
As time went on, I never improved healthwise so never had the ability to take it further.
It was only in August that, with help, things changed.

They have sent me a letter saying that they can agree that the 2005 was made by them incorrectly. They have also apologised for their failure to contact my GP when it was so clear that that evidence was crucial.
Besides which the Decision Maker telephoned me to explain everything, and given my health problems stated that I have had a 'rough deal'.

The DWP are required to obtain evidence in order to make a proper decision, they and the claimant are both responsible in doing that.

It seems that it will not be backdated to 2005. Never mind, I was just wondering from a point of principle. I am not interested in the money for those 6 years, I don't need it.

I just wanted to know why it is that the DWP can go back to the first decision to reclaim benefit whereas the claimant can't.

But thanks everyone, I will just accept it as being one of the querks of the system and at least I am now getting the extra money.

tom9980

The key is you didnt send the info at the time, if you had they likely would have backdated it, in my case CAB managed to get the DWP to backdate 10 years on a mistake they made because they had all the evidence on record already. They failed to put me on the correct benefit and the result for me was about £2k in underpayment and being moved from income related to non income related benefit.

sunnyone

Does any one else remember a thread about just this not long ago?

I dont have that thread Handy though at present.

tatonette

tom9980 wrote: »

The key is you didnt send the info at the time, if you had they likely would have backdated it, in my case CAB managed to get the DWP to backdate 10 years on a mistake they made because they had all the evidence on record already. They failed to put me on the correct benefit and the result for me was about £2k in underpayment and being moved from income related to non income related benefit.

I agree, but with everything else going on, doing that wasn't possible.

I'm glad you had a result with your case.

In my case there already was evidence that was submitted of the original claim and was accepted and my child was awarded High Care. But that evidence was 2 years old at the time of the review.

I was told in August that the refusual was wrong and should have been appealed against. So a new claim was put in and care was awarded at the Middle rate which I am happy with and surprisingly, High mobility was awarded. This allowed me to get a new car as I didn't have any credit rating as my previous husbands' did that for me. My old car was due it's first MOT and used a lot of petrol. So I sold it as it had no finance on it and I opted for an desiel Insignia which is great. It was such a lovely surprise and I don't pay any road tax, that's a saving of £240 a year and I have just got a blue badge so that I can park closer to the shops instead of walking miles from a car park.

So whilst I may have lost out on the past 6 years of money, it has come just right for me now also.

tatonette

sunnyone wrote: »

Does any one else remember a thread about just this not long ago?

I dont have that thread Handy though at present.

I tried to look myself to see if the answers were hidden in another posting, but I couldn't find one.
If you do happen to find the thread you mention, could you please let me know. PM me if you want, I have no objection.