Memo DMG 26/11

REQUEST FOR STRIKE-OUT WHERE THE DECISION
MAKER CONSIDERS THERE IS NO REASONABLE
PROSPECT OF SUCCESS

Contents     Paragraphs
Introduction     1
Background      2 - 3
Types of appeals suitable for strike out request on grounds of no 4 - 5
reasonable prospect of success
Action to take     6
Annotations  
Contacts
Appendix

INTRODUCTION

1      The guidance contained in this memo is to advice DMs how and what circumstances
they should consider applying to the FtT for an appeal to be struck out on the grounds
of no reasonable prospect of success.

BACKGROUND

2      DMs already apply for appeals to be struck out where the FtT has no jurisdiction to
deal with the issue1 (see DMG 06150). However, legislation also provides that the FtT
has the authority to strike out an appeal where they consider it has no reasonable
prospect of success2. Whilst current guidance in Chapter 06 of the DMG does not
make any reference to a DM requesting that the FtT consider using their powers to
strike out an appeal on the grounds of no reasonable prospect of success, there is no
reason why this cannot be done.  
1TP (FtT)(SEC) Rules, rule 8(3)(a); 2 rule 8(3)(c)
 
3      The purpose of this memo is therefore to raise awareness of the provision. The
process that DMs should follow when making an application is detailed in CAP Bulletin
02/11. In identifying suitable cases and following the application process, DMs will not
have to go through the process of writing a full response. This will enable
1.      a more effective use of resource within DWP  
2.      support for HMCTS in their aim of disposing of appeal cases in the most
effective way
3.      the appellant to have a speedier resolution to their appeal by making it clear at
the outset that the appeal has no hope of success
whilst ensuring that the overriding objective of the FtT to deal with cases fairly and
justly is achieved1.
1 TP (FtT)(SEC) Rules, rule 2

TYPES OF APPEALS SUITABLE FOR A STRIKE OUT REQUEST ON
GROUNDS OF NO REASONABLE PROSPECT OF SUCCESS

4      Cases that can be selected for a request to strike out should be where the DM
considers that there is no reasonable prospect of the appellant’s case being
successful at a hearing. Appeals for all benefits can make use of this facility. The
Appendix to this memo gives a range of examples covering the types of case that may
be suitable and that the DM should consider applying for strike out on grounds of no
reasonable prospect of success.
5      Cases selected as suitable for this type of strike out request are most likely to be
identified while undertaking a reconsideration of the DMs original decision. The
reconsideration process should still be completed (see DMG 06000 et seq). However,
at any stage where a case is looked at again there would be an opportunity to identify
a case where a request for strike out on the grounds of no reasonable prospect of
success is appropriate.

ACTION TO TAKE

6      Once the DM has identified a suitable case and submitted their application to the FtT
for the appeal to be struck out as per CAP Bulletin 02/11, they should await
notification from HMCTS of the FtT’s decision. HMCTS will notify the appellant of the
FtT’s decision. If the application is rejected and the FtT admit the appeal, the DM must
write a full appeal response as normal.

ANNOTATIONS

Annotate the number of this memo (Memo DMG 26/11) against DMG paragraphs
06100 & 06232.

CONTACTS

If you have any queries about this bulletin, please write to Decision Making and
Appeals (DMA) Leeds, GS36, Quarry House, Leeds. Existing arrangements for such
referrals should be followed, as set out in Memo DMG 14/11  - Obtaining legal advice
and guidance from DMA Leeds.
DMA Leeds: October 2011
 

APPENDIX

 
EXAMPLES OF THE TYPES OF CASE SUITABLE TO
REQUEST STRIKE OUT ON THE BASIS OF NO REASONABLE
PROSPECT OF SUCCESS

This list is not exhaustive but is a selection of situations that have been identified as the type
of case that may be suitable for the DM to request strike out. It covers as many benefits as
possible but where a benefit is not listed, this would not necessarily mean that DM requested
strike out was not possible. It would be up to the DM to decide whether any other type of case
was suitable using the principles set out in this memo.

EMPLOYMENT AND SUPPORT ALLOWANCE

Work Capability Assessment

Evidence indicates a physical medical condition where the claimant cannot score 15 points
under the physical descriptors. Suitable referrals would mainly focus on those claimants that
have been deemed by the DM only to satisfy one or two physical descriptors due to their
physical medical condition. The available evidence should support the view that the claimant
cannot score 15 points. No case where the claimant has indicated that there are mental
health issues should be put forward for consideration.

Contribution condition

Appellant does not dispute their earnings but they believe they should be entitled to the
contributory based element of the benefit.  These conditions are laid out in law and must be
met for a contributory based payment to be made. This would only be suitable where HMRC
have made a decision confirming that the NI record is correct.

Age limitation

Decision not to pay IB/ESA cases where the appellant has attained State Pension age and
therefore the benefit cannot be paid beyond that date.
 
DISABILITY LIVING ALLOWANCE/ATTENDANCE ALLOWANCE
 

Age limitation
 

DLA Higher rate mobility for children under 3 years of age
DLA Lower rate mobility for children under 5 years of age
DLA Main meal test for people under 16 years of age
Over 65 and DLA is requested
 

Age
 

A decision not to award DLA to a claimant who is over 65 (no recourse to DLA unless
previously in receipt of DLA on 65th birthday and claims again within one year, could be
entitled to mobility component).
 

Backdating
 

A decision where there is no entitlement before the date of claim (ie no claim was made); or
where there is no indication of a previous claim (ie no alleged earlier claim).  This does not
include instances when a renewal claim is received late as the FtT may wish to look at the
appropriateness of closing the previous claim.
 

Residence and presence
 

Disallowances re eligibility.  Dates or other information (including exportability rules) may
need clarifying before deciding it is appropriate to apply for appeal to be struck out on
grounds of no reasonable prospect of success.
 

No physical disability
 

Claiming higher rate mobility when there is no evidence of a physical disability (i.e. mental
health issues only) when deeming provisions do not apply.
 

Payability
 

Imprisonment – claimant is appealing against payability decision. Issues relating to dates,
type of conviction etc - establish that there is no dispute as to the primary facts before
deciding it is appropriate to apply for appeal to be struck out on grounds of no reasonable
prospect of success.
 
Hospital/residential care – claimant is appealing against payability. Issues in respect of
admittance, discharge dates, types of hospital funding, residential care funding arrangements
- establish that there is no dispute as to the primary facts before deciding it is appropriate to
apply for appeal to be struck out on grounds of no reasonable prospect of success.
 

Change of circumstances/deterioration
 

Only if the change of circumstances or deterioration has occurred after the date of the
decision being appealed.
 

CARERS ALLOWANCE
 

Qualifying benefit
 

No qualifying benefit in payment on a new claim.
 

JOBSEEKERS ALLOWANCE
 

Good cause
 

Decision not to consider good cause where the claimant appeals against the specified time
limit (5 days) in which they must provide an explanation for failure to attend a mandatory
interview (usually fortnightly job review) and they are not disputing that they did not respond
within 5 days but the only reason they provide is that they forgot their appointment.
 

INCOME SUPPORT
 

Conditions of Entitlement
 

Lone parents claiming IS when they do not satisfy the “lone parent” conditions anymore due
to the changes in ages for youngest child.   
 

Deductions
 

Decision to implement deductions at set rates.  For example, fines that are deducted at a
fixed rate cannot be changed and claimants may appeal the amount being deducted because
they consider it too high.

Occupational Pension income
 

Benefit is terminated because the claimant has reached pension age and receives
occupational pension that is higher than there is entitlement. Appeals may be received
because there is a disregard for occupational pensions for those receiving IB whereas in IS
the whole amount of an occupational pension is taken into account.
 

INDUSTRIAL INJURIES DEATH BENEFIT
 

Cannot claim within 3 years of a disallowance
Claimant disallowed and advised they cannot claim again within 3 years but does claim again
an appeals disallowance. The 3 year period is set in law and cannot be altered.
 

Not on prescribed list
 

A decision where the claimant is claiming with an illness not on the prescribed illness list and
who had been disallowed.
 

SOCIAL FUND
 

Winter fuel payments
 

A decision not to award a payment because
•     the person applying has not attained the qualifying age
•     the person is in legal custody under sentence imposed by a court
•     the appeal is against the amount which is prescribed for the specific circumstances of
the claimant.
 

Sure start maternity grants
 

A decision not to award a payment because
•     the claimant (or partner) does not have an award of qualifying benefit in respect of the
date of claim and that is not in dispute
•     the claim is made outside the prescribed time limits

Funeral payments
 

A decision not to award a payment because
•     the claimant (or partner) does not have an award of qualifying benefit or is not a
person in respect of whom CTB (second adult rebate) could be awarded in respect of
the date of claim
•     the claim is outside the prescribed time limits
 

RETIREMENT PENSION
 

NI Contribution disputes
 

Appeals against decisions which are based on NI qualifying conditions and where HMRC has
given a formal decision confirming that the NI record is correct.
 

Disputes involving paydays
 

The claimant disputes non payment of RP for a part week from the date they attained state
pension age to the beginning of their first benefit week.
 

BEREAVEMENT BENEFIT, WIDOWED PARENT’S ALLOWANCE,
BEREAVEMENT ALLOWANCE & BEREAVEMENT PAYMENT
 

Qualifying conditions not met
 

A decision not to award benefit because
•     there was no marriage
•     there were no/insufficient contributions and that is not disputed
•     the cessation of widowed parent’s allowance where the qualifying child has attained
the age at which there would be no entitlement to child benefit.
 

52 week maximum period
 

Appeals against the 52 week maximum period of an award of bereavement allowance.
 
STATE PENSION CREDIT
 

Conditions of entitlement
 

A decision that there is no entitlement because the appellant has not reached the qualifying
age for SPC.