An appeal tribunal’s jurisdiction to deal with an aspect of an award not put in issue between the parties, and the circumstances in which a tribunal may exercise its jurisdiction, can raise difficult questions of procedural fairness and has been the subject of a number of recent decisions of the Upper Tribunal.
Claimants who have been awarded DLA but who are not satisfied with the level of the award and pursue an appeal often do not appreciate that an existing award cannot be considered to be “in the bank” (CDLA/1000/2001 para 19).
Appeal tribunals in social security exercise an inquisitorial jurisdiction and there is a public interest in ensuring that claimants receive the amount of social security benefit to which they are properly entitled (as opposed to the benefits to which the parties may be contending that they are entitled): R(IB) 2/04 para 32. Case law has distinguished between the duty to consider the issues raised by the parties and the power to consider other issues. Statute has relieved the tribunal of the duty to consider issues that have not been raised by the parties: section 12(8)(a) of the Social Security Act 1998, provides that: “In deciding an appeal under this section, the First-tier Tribunal- (a) need not consider any issue that is not raised by the appeal; …”
The proper exercise of this power was considered by a Tribunal of Commissioners in R(IB) 2/04 para 194, in the context of when an appeal tribunal could consider altering an existing award of DLA adversely to the claim when that was not in issue in the appeal. The Commissioners said that it would not be appropriate or helpful to formulate guidance as to the exercise of the discretion and simply observed that: “The discretion is one to be exercised judicially, taking into account all the circumstances of the particular case. We do not think it appropriate or helpful to attempt to formulate guidance as to the exercise of the discretion” (para 93).
The Commissioners have consistently held that it can never be right for a tribunal to consider reducing an existing entitlement to benefit without giving the claimant proper notice that this is being considered and offering the claimant a chance to be heard or to withdraw the appeal: see CDLA/1480/2006 para 5, CDLA/2084/2007 para 14. Tribunals must, however, be cautious in how they warn the claimant of the risk of litigation due to the potential for unfairness i.e. that the claimant may feel put under pressure to withdraw or form the perception that the tribunal has prejudged the case: CDLA/884/2008 paras 9 and 10. But a tribunal will not be criticised if it gives the claimant a fair warning of the risks of proceeding with the appeal: Farrington v Secretary of State for Work and Pensions  EWCA Civ 435 (unreported). Following a survey of the case law on this topic, Upper Tribunal Judge Jacobs in CDLA/3182/2009- AP-H v SSWP  UKUT 183 (AAC) summarised the position as follows:
• the tribunal has a discretion to consider issues that are not raised by the appeal or the parties;
• the tribunal must exercise the discretion judicially;
• if the tribunal decides to consider other issues, the parties are entitled to a fair hearing;
• it is always good practice to explain to the claimant why the tribunal exercised its discretion;
• a written explanation may also be required as a matter of adequacy of reasons.
If a claimant is pursuing a DLA appeal and the tribunal indicates that it is minded to reduce their existing award of DLA, then they should be offered a short adjournment to consider their position in the light of the new point. If the claimant is unrepresented then the safest policy would be to ask for an adjournment so that they can take advise on the merits of pursing the appeal based on a realistic assessment of the current award.