General – DWP Destroying or Losing Previous Claim Files

The Upper Tribunal has recently made a decision (CE/2388/2015) which makes it more difficult for the DWP to stop or reduce benefit awards when they no longer have the claim file relating to that award, for example because it has been destroyed or lost.

DWP have lost or destroyed very large numbers of claim files during their various IT changes, especially those from before 2010.

BACKGROUND
The law only allows the DWP to change or reduce a benefit award if they can clearly show that the original award was wrongly made or that there has been a relevant change of circumstances since it was made. This means that DWP have to either point out what the original mistake was, or make a comparison between the situation when they made the original award and now, so that they can point to a specific change.

This case was about what can be done when the DWP have destroyed or lost the original claim file, so that DWP can’t point to a mistake or make a comparison. Is it OK for the DWP to make assumptions (or inferences) about the original award and use those assumptions to claim that a mistake has been made, or to make a comparison?
WHAT THE UPPER TRIBUNAL DECIDED
The Upper Tribunal said that, if the DWP haven’t got your original claim file, then they can’t assume things about the original claim and use those assumptions to justify a change to your benefits. In particular, they can’t assume that the original award was made by mistake and ‘correct’ that assumed mistake, as they tried to do in this case. This decision applies to all social security benefits such as JSA, UC, ESA, DLA, PIP etc.

However, it only applies to changes to awards of the same benefit – it doesn’t apply if you are now applying for a replacement benefit. So you can’t use this decision to stop changes to your DLA award when you move to PIP or your UC award when you move from ESA.

WHAT THIS MEANS FOR YOU
This case will help you if DWP try to stop or reduce a benefit claim because they say there was a mistake in the original decision or that there has been a change of circumstances which makes the original decision no longer correct. If they want to do this – called a supercession – then they must produce the original claim file and say clearly what mistake has been made or what has changed since the original decision.
If DWP can’t produce the original claim file, and are making assumptions about the original decision to justify reducing or stopping your award, then you can quote this decision and ask for your original award to be reinstated.
An example might be where you’ve been in the ESA Support Group for a long time and the DWP call you in for another assessment, and the second assessor says you are now no longer entitled to be in the Support Group, even though your original claim papers have now been destroyed.
You can challenge the DWP decision by saying that the DWP cannot show how your conditions have changed because they no longer have the original file, so your award should be reinstated.
This means you don’t have to argue about your medical conditions or disability at all to get the award reinstated – although you may have to do this to get your award renewed after it comes to its end date.

This Upper Tribunal decision follows several others, all of which emphasise that DWP must have a good reason to stop or reduce an existing award and must be able to show an actual change in circumstances. For PIP, it isn’t enough to simply get the opinion of another assessor and change the award because the second assessor has a different opinion to the original assessor.

They have to show an actual change in your medical condition or disability, or other relevant change in your circumstances. See decisions CPIP/3556/2016, CPIP/1623/2016 and CPIP/1123/2016.

TIMING
It’s always difficult to say when Upper Tribunal decisions start being used in practice. The Upper Tribunal made this decision on 2 May 2017.
It can be used for mandatory reconsiderations and appeals about decisions taken on or after that date.

However, it is a clarification of the meaning of the law, so you could argue that it should apply even to decisions taken before that date too.

This analysis is brought to you free of charge by BuDS Benefit Information Team. It is only general information and you should take advice on your own case.

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You can read the full judgement here: http://administrativeappeals.decisions.tribunals.gov.uk/Aspx/view.aspx?id=5028