Going back on an MR?

Looking for a sanity check.

Client is EU national who has clear right to reside as dependent family member of her working parent (who has SS). She was initially refused in May 2020 and came through to me in April 21. She had made a new claim in April ‘21 and was refused again. We did MR (on dep family grounds) and this was agreed and UC went into payment. We submitted a late MR for previous May 20 refusal on the journal.

She applied for settled status prior to the deadline, not yet awarded.

Overnight on Saturday, she got an MRN stating that she they were not overturning the original failure decision from April and she was now subject to immigration control as there was no evidence that she was a dependent family member and no evidence that she had applied for the settlement scheme. She was not prompted for evidence of either of these and UC has been in payment from April till now.

I called the UC helpline and got fobbed off as it was made by a decision maker and next step is of course tribunal. We can’t write on the journal as claim is closed.

I’m not happy! I presume DWP have an overriding ability to overturn decisions they’ve already made? I will be exploring local escalation routes but any thoughts greatly appreciated.

They can overtrun decissions that they have already made but only if there are grounds under the Universal Credit etc Decisions and Appeals Regulations 2013.

In this case they purport to be revisinng or superseding the MR decision

The only ground I can see for revision is that provided by Reg 9 (official error) but it seems that they cant say what the error was

They could conceivably say that they are superseding (Reg 24) but again what is the error of law or mistake as to a material fact ?

Decisions such as R(SB)4/92, R(S)4/86 and RH v Secretary of State for Work and Pensions (DLA) [2015] UKUT 0453 (AAC) are pertinent here because as Mr Commissioner Mitchell held at paragraph 11 of R(SB)4/92

…”It is in my judgment impossible to sustain this alternative submission. Such alleged failures of consideration are not equivalent to the mistakes of fact”

In other words a different decision makers conclusion about the same set of facts is not grounds for revision or supersession and this applies as much to UC as it does to legacy benefits

Rebecca Lough - 10 August 2021 12:43 PM

I presume DWP have an overriding ability to overturn decisions they’ve already made

No they absolutely don’t. Decisions, once made, can only be changed by revision or supersession. Revisions (except “any grounds” revisions) and supersessions must be based on a ground.

Once the April 2021 decision was revised, if the DWP didn’t like the revised decision, it needed to further revise it. Doing so would require a ground.

It sounds like the DM on Saturday didn’t bother with this and just took the opportunity to have a “do-over” but this is not authorised by the legislation.

What isn’t clear from the post is whether the DWP did have grounds on which to further revise the decision. You have said that the latest decision letter is explained on the basis that “there was no evidence that she was a dependent family member and no evidence that she had applied for the settlement scheme”.

Because the decision was made in April 2021, the question of whether your client had applied to the settlement scheme was not decisive - although it could be relevant to entitlement after the end of the “grace period” - so that only leaves the dependence issue.

The most likely ground for revision is under reg 9 D&A. It is possible that the favourable revision involved an error of law - for example if the DM failed to consider dependence at all in circumstances where it was relevant. However if this is simply a case that the 2nd DM and 3rd DM have reached differing conclusions on the same evidence, it is hard to see how this can be justified.

In any case, your client is still most likely going to need to appeal. The grounds of appeal are most likely (a) that no ground of revision was established by the (3rd) DM and (b) that in any event the (2nd) DM was correct.

Edit: In the original version I mixed up the rules for the EUSS pre and post 30.06.21 so amended to clarify.

Thanks both for your thoughts. It began ‘You asked us to look again at the decision’ so my best guess is that the request for late MR for previous claim got lost somewhere and the DM took the opportunity to close her claim. Deeply frustrating.