Ed Pybus summarises recent official guidance concerning personal independence payment (PIP) in the light of recent caselaw and DWP announcements about PIP reviews for severe health conditions.
Recent caselaw
Recent caselaw regarding mobility Activity 1 and ‘psychological distress’ and, separately, the meaning of being able to carry out an activity ‘safely’ means that a number of claimants may have been awarded the wrong rates of PIP, or not awarded PIP at all, when in light of the judgments they would have been entitled. To correct this, the DWP has issued new guidance and is undertaking a review, called a LEAP ( Legal Entitlements and Administrative Practices) exercise, to look at all decisions that it believes may have been affected by these judgments.
Caselaw
The caselaw applied in the guidance is, firstly, MH v SSWP (PIP) [2016] UKUT 531 (AAC) (28 November 2016), regarding mobility Activity 1 (planning and following journeys). As held by the High Court in RF v Secretary of State for Work and Pensions, that applies the correct approach regarding claimants with ‘psychological distress’ (see Bulletin 263, p5 for more). Secondly, RJ, GMcL and CS v SSWP (PIP) [2017] UKUT 105 (AAC) considered the meaning of ‘safely’ as defined in the PIP rules (see Bulletin 262, p6 for more).
Guidance
Regarding MH and ‘psychological distress’, the guidance is in ADM Memo 16/18. Regarding RJ, it is in ADM 30/17. Starting in summer 2018, the DWP states it will identify all ‘claimants in receipt of PIP and all decisions made since the judgment date (28 November 2016 for the Upper Tribunal judgment in MH and 9 March 2017 for Upper Tribunal judgment in RJ)’.
Further, the DWP says that:
‘There will be an initial scoping exercise to identify claimants who have been in receipt of the enhanced [rate of both components of] PIP since the judgment date, or who have had a tribunal decision that would have considered the judgment. These cases will not be reviewed. All other claimants (who are in receipt of PIP or have had a decision made on their claim since the judgment date), will be considered in scope for the exercise and contacted with the outcome of the review. They will then have a route to challenge the outcome.’
1 Email to CPAG, 6 August 2018Further details are provided in a FAQ produced by the DWP. This states that claimants:
‘will have a route to challenge the outcome of the review and the opportunity to provide further information if they feel their award should change as a result of these judgments. When we notify claimants we will set out how to do so in their letter[…] If claimants request a Mandatory Reconsideration of the outcome of the review in the administrative exercise, it will only consider how the judgments apply and not review other aspects of the award.’
Claimants whose PIP claim was completely refused prior to the earlier judgment will not be contacted and will have to make a new claim for PIP if they feel they would now be eligible. The FAQ document states that the DWP will be applying the anti-test case rule and payments will be backdated to the date of the ‘relevant determination’ (ie, 28 November 2016 in the case of MH, and 9 March 2017 in the case of RJ) or the date of the start of the PIP award if this was after the judgment.
Advisers should be aware that the majority of PIP claimants will be receiving letters regarding this review. The DWP has not yet announced a time scale in which it believes this process will be completed.
If a claimant had a claim refused prior to the date of judgment, but feels s/he would benefit from it, s/he should consider making a new claim.
Decision making
If a claimant is unhappy with the result of the review, s/he can challenge it and will be given an opportunity to provide more evidence – there are no plans to ask claimants to attend a further face-to-face assessment as part of the process.
The guidance states that decision makers should apply the outcome of these judgments when deciding new cases, planned reviews and when the claimant requests a supersession.
2 paras 13-20 ADM Memo 16/18 However, guidance states that the date any supersession takes effect should be the effective date that would apply under the general rule rather than backdated to the date of the judgment.
3 ie, the date of application for a supersession or the date of the new decision, although many exceptions apply. See p1306 of CPAG’s Welfare Benefits and Tax Credits Handbook. This is because any increase in entitlement for a period prior to that effective date will be captured in the LEAP exercise outlined above. The guidance goes on to state that where revision or supersession requests (including ‘mandatory reconsideration’ requests) are made that specifically ask for the decision to be looked at as a result of the MH or RJ, the effective date should be the date of judgment or the date of award if that is later.
PIP reviews for severe health conditions
The government had announced that it will ‘end unnecessary PIP reviews for people with most severe health conditions’.
4 s88(2) Welfare Reform Act 2012The previous published guidance stated that, following assessment, if a claimant has a level of functionality that is not likely to change or high levels of functional impairment that are only likely to increase, a fixed-term award would be inappropriate and ‘an on-going award, with a review date of 10 years
5 p2062 ADM will be applicable’.
The new internal guidance
6 Copies sent to CPAG confirms this approach, noting that if the claimant is awarded the enhanced rate of both components, or the enhanced rate of the daily living component for those over state pension age, and her/his needs are not going to improve over time, an ongoing award may be appropriate.
This seems like a re-emphasising of the existing practice rather than a new policy. The new guidance does introduce the new concept of a ‘light-touch’ review. This new process is yet to be designed.
Advisers should be aware that the regulations, guidance and DWP’s policies allow for ongoing awards of PIP in cases where a fixed-term award would be inappropriate. The guidance clarifies when the DWP would consider a fixed-term award inappropriate. Advisers should be aware that they can challenge the length of a PIP award period, taking into account the fact that a revision request or an appeal can result in an award being reduced as well as increased.
It may be beneficial for claimants, or their representatives, to explain the long-term prognosis of their needs when providing information to the DWP regarding their entitlement to PIP during the claim process in order to ensure a correct decision is made regarding the award period.
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