Chapter A6: StayingContents
Staying where an appeal is pending before a Court in another case
|A6010:||When is an appeal pending|
|A6030:||Which courts are involved|
|A6031:||Cases where the DM should stay making a decision|
|A6040:||would result in no entitlement to benefit or credits|
Staying where the likely outcome of the lead cases would affect
|A6050:||the benefit decision in some other way|
|A6070:||Look-alike appeals not yet lodged with HMCTS|
|A6075:||Look-alike appeals already lodged with HMCTS|
|A6080:||look-alike claim or appeal|
|A6085:||What happens when the lead case is decided|
|A6090:||Action by DMs|
Chapter A6: StayingStaying where an appeal is pending before a Court in another case
A6001 Stayed decisionsThe DM may decide not to make a decision (1) where an appeal is pending before a
Court in another case if the DM is considering
1. determining an application for benefit or credits
2. revising a claim to benefit
3. superseding a claim to benefit and
4. is aware that there is an appeal pending before a court in another case and
5. that the outcome of the appeal may affect the decision in some way.
1 SS Act 98, s 25
A6002The case on appeal at a Court is known as the lead case. The case that is stayed is
known as the look-alike case.
A6010 When is an appeal pending « A6060An appeal is pending where (1)
1. an appeal has been made, but has not yet been decided or
2. an application for leave to appeal has been made, but a decision on whether
leave is to be granted has not yet been made or
3. the time limit has not expired for making (2)
an appeal where an application for leave to appeal has been granted,
but the appeal has not yet been made or
an application for leave to appeal and
4. the Secretary of State certifies in writing that he is considering an appeal
against a decision and
5. the DM considers that such an appeal may affect the decision in the look-alike
1SS Act 98, s 25(5); 2 UC, PIP, JSA & ESA (D&A) Regs, reg 53(2)
A6011DMA Leeds will identify lead case appeals that are pending and will issue
notifications detailing the point of law in dispute and the type of benefits which are
affected by the decision. DMA Leeds will also issue a certificate where the Secretary
of State is considering an appeal.
A6030 Which courts are involvedThe courts before which relevant applications for permission to appeal or appeals
can be pending are
1. the High Court
2. the High Court in Northern Ireland
3. the Court of Appeal (England and Wales)
4. the Court of Session (Scotland)
5. the Court of Appeal in Northern Ireland
6. the Supreme Court
7. the ECJ.
A6031 Cases where the DM should stay making a decisionThe DM may stay making a decision (1), because an appeal is pending in another
case, when considering
1. a claim to benefit or
2. an application for credits or
3. revising or superseding an existing award of benefit or credits
and the DM considers that the effect of the likely outcome of the appeal is that there
would be no entitlement to benefit or credits or the likely result of the appeal would
affect the benefit decision or credits in some other way (2).
1 SS Act 98, s 25(2); 2 s 25 (2) &(3)(a)
A6040 Staying decisions where the likely outcome of the lead case would result in no entitlement to benefit or creditsIf the outcome of the lead case is possible to mean that there would be no
entitlement to benefit or credits, the DM will stay the decision until the outcome of the
lead case is known (1).
1 SS Act 98, s 25(2)
A6041 « A6081In exceptional circumstances, a DM may decide cases where staying would
otherwise be appropriate. This is where the claimant would suffer hardship as a
result of staying the decision. For example where
1. the amount of benefit involved is likely to be significant, or
2. the lead case will not be resolved for some considerable time.
For advice on issues to be taken into account when considering hardship - see benefit specific guidance.
A6050 Staying where the likely outcome of the lead cases would affect the benefit decision in some other wayIn deciding whether the lead case will affect the decision in some other way, the DM
must determine the claim or application as if the lead cases had already been
decided and that the outcome was most unfavourable to the claimant (1).
1 SS Act 98, s 25(3)(b); UC, PIP, JSA & ESA (D&A) Regs, reg 53(1)
ExampleThe lead case concerns the payment of the carer element. A DM has before him a
look-alike case that involves the same element. Using staying provisions he
identifies that even if the lead case were decided in most unfavourable terms, the
claimant would be entitled to a standard allowance, but not the element. Only the
payment of the element is in doubt.
The DM decides and awards the standard allowance. The decision on the carer
element will be stayed until the lead case is decided.
A6060 Stayed appealsThe arrangements for staying also apply to look-alike appeals that depend on the
outcome of a lead case on appeal to the Courts. Guidance at A6010 also applies in
terms of when an appeal pending in these circumstances (1).
1 SS Act 98, s 26(6); UC, PIP, JSA & ESA (D&A) Regs, reg 53(1)
A6061The Secretary of State can direct an FtT or UT not to hear a look-alike appeal. In
these cases the appeal is returned to the DM to hold pending the outcome of the
lead case (1).
1 SS Act 98, s 26(2)
A6062Where the Secretary of State decides that the look-alike appeal should not be
returned the FtT or UT may
1. stay the decision on the look-alike case pending the outcome of the lead case
2. where it is in the interests of the claimant, determine the look-alike case as if
the lead case had been decided in the most unfavourable terms for the
1 SS Act 98, s 26(4)
A6070 Look-alike appeals not yet lodged with the HMCTSAppeals officers should check all submissions for potential look-alike appeals.
Where a look-alike appeal is identified the appeals officer will refer the appeal
response to HMCTS in the normal way and note the AT (37) asking for the appeal
hearing to be deferred pending the decision on the lead case. HMCTS will notify all
PTTP if the hearing is deferred. This guidance applies to cases where
1. the outcome of the lead case is likely to mean that there will be no entitlement
2. the issue or issues raised in the look-alike appeal relate wholly to the point(s)
of law in dispute in the lead case or
3. the additional issues raised in the appeal are non-appealable decisions.
A6075 Look-alike appeals already lodged with the HMCTSDMA Leeds will send HMCTS and The Upper Tribunal Office a copy of the lead case
certificates. Separate arrangements have been agreed with HMCTS for the handling
of look-alike appeals that have already been lodged with them.
A6080 What happens if the claimant challenges the decision to stay a look-alike claim or appealThere is no right of appeal against a decision to stay a look-alike claim or a look
alike appeal (1).
1 UC, PIP, JSA & ESA (D&A) Regs, Sch 3, para 8
A6081The DM can reconsider the decision in the light of all the available facts that may be
presented by the claimant, and if appropriate make a decision on the case (see A6041 for guidance on hardship).
A6085 What happens when the lead case is decidedDMA Leeds will notify the outcome of the lead case.
A6086Claimants might approach the DM for a decision on their stayed appeal immediately
following the Court's decision. DMs should not take any action to decide the stayed
case until they have received formal notification and guidance on the outcome of the
A6090 Action by DMsDMs should identify all look-alike cases and appeals returned to them by HMCTS.
A6091DMs decide the claim where the decision was stayed in full
A6092Where the lead case has been decided in a way which changes the interpretation of
the law, DMs should revise or supersede the decision (1). The decision will be revised where
1. only part of the decision was stayed (2)
2. the appeals officer decided not to forward a look-alike appeal to HMCTS
3. HMCTS returned a look-alike appeal on the request of the DM (see ADM
Chapter A3 for guidance on revision).
1 SS Act 98, s 25(4); 2 s 26(3)
A6093Where the look-alike appeal was forwarded to the FtT and they decided the appeal,
the DM should supersede the decision (1) (see DMG Chapter 04 for guidance on
1 SS Act 98, s 26(5)
A6094DMA Leeds will give guidance following the determination of lead cases on whether
revision or supersession is required.