PIP – changing an ongoing award
When can the DWP change an ongoing award of personal independence payment (PIP), including where the award was made by a tribunal? Ed Pybus looks at the rules and some recent caselaw.
Introduction
Several recent Upper Tribunal decisions have made it clear that there is a need to show valid supersession grounds when changing existing PIP awards. Advisers need to be alert to the DWP (or First-tier Tribunal) failing to identify sufficient grounds to supersede a decision and applying a changed award from an incorrect date.
Decision notices often contain little, if any, details of the supersession process that the DWP has used when altering an ongoing award. Advisers may need to construct a time-line of events in order to ascertain the correct date and ground for supersession.
Regulations and caselaw
Under regulation 11 of the PIP regulations,
1 Reg 11 Social Security (Personal Independence Payment) Regulations 2013, No.377 the Secretary of State has the ability to ‘determine afresh’ whether or not the claimant meets the disability conditions for PIP. However, as Judge Mesher confirms in
KB v SSWP,
2 paras 16–17 KB v SSWP (PIP) [2016] UKUT 537 (AAC)this only provides the Secretary of State with the power to determine whether or not the claimant meets the disability conditions. It does not provide the Secretary of State with powers to make a decision about entitlement, and crucially it does not give the Secretary of State power to supersede an ongoing award decision. Such a change can only be authorised by powers under the PIP Decisions and Appeals regulations.
3 Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013, No.381 (‘UC, PIP, JSA & ESA (DA) Regs’)Note, however, that if, during the process of determination under regulation 11 of the PIP regulations, the Secretary of State requests information or evidence from the claimant or requires that s/he undertake an assessment, and the claimantwithoutgood cause fails to comply, the Secretary of State must make a ‘negative determination’ of the claimant's entitlement.
Under the Decisions and Appeals regulations, this is a ground for a supersession of the award.
4 Reg 26(2) UC, PIP, JSA & ESA (DA) RegsThe Decisions and Appeals regulations
5 Reg 26(1) UC, PIP, JSA & ESA (DA) Regs give the Secretary of State authority to supersede an award if he has received medical evidence from a healthcare professional. It is most likely that the Secretary of State would, in the course of determining whether or not the claimant meets the disabilities condition, request medical evidence. But, as is established by the Upper Tribunal in
KB v SSWP,
6 See note 2, para 18 regulation 26 only allows the possibility of supersession – it does not determine the outcome of the supersession. That outcome depends on the decision maker making a decision that takes into account all the relevant evidence when deciding whether or not the disability conditions are met. As Judge Wright makes clear in
DS v SSWP,
7 para 14 DS v SSWP (PIP) [2016] UKUT 538 (AAC) the regulations give no additional powers to the Secretary of State, other than that provided by section 10(5) of the Social Security Act 1998, so the effective date of the supersession under regulation 26(1)(a) is the date that the decision is made.
The Decisions and Appeals regulations
8 Reg 23(1) UC, PIP, JSA & ESA (DA) Regs also give the Secretary of State powers to supersede the decision when there has been a relevant change of circumstances. As Judge Mesher notes in KB,
9 See note 2, para 19 a determination under regulation 11 does not in itself amount to a relevant change of circumstances. The decision maker would have to identify a relevant change of circumstances to allow a supersession under regulation 23. The effective date of the supersession would be the date of the change of circumstances (or the date on which the change of circumstances was reported by the claimant if the change is advantageous to the claimant).
An additional ground of supersession, that the Secretary of State has powers to revise a First-tier Tribunal award under regulation 31,
10 Reg 31 UC, PIP, JSA & ESA (DA) Regs is noted in MR.
11 para 28 MR v SSWP (PIP) [2017] UKUT 46 (AAC)Regulation 31 is only relevant if the First-tier Tribunal decision was made in ignorance of some material fact.
Use of previous medical reports
Two cases,
SF v SSWP and
DS v SSWP,
12 See note 7, para 19, and para 20 SF v SSWP (PIP) [2016] UKUT 481 (AAC)confirm that First-tier Tribunals aren’t obliged to consider earlier medical reports – or any other evidence. However, unless the reasons are obvious, they do have a duty to provide at least a brief explanation as to why a previous award has not been continued. In both DS and SF, the claimant’s evidence was that her/his condition and needs had not changed since her/his previous award. These cases suggest that, in those circumstances, the First-tier Tribunal should provide an explanation as to why the previous award has not been renewed or an award has been terminated.
A pretty sorry tale
In a number of these cases, it is clear that the Upper Tribunal judges are concerned by the failure of the Secretary of State to clearly identify the correct grounds and effective dates for supersessions. A First-tier Tribunal that repeats such failures will have erred in law. Judge Wikeley described one case (
MR v SSWP13 See note 11, para 30) as a ‘pretty sorry tale’, where the tribunal ignored the need for supersession grounds and treated the case effectively as a new claim.
This recent caselaw has highlighted issues with DWP decisions and clarified the regulations the Secretary of State can use to alter on-going awards. In most cases, it should not be necessary to highlight the relevant caselaw, but it provides a useful indication of tactics advisers can use when challenging decisions that alter ongoing awards.
Conclusion
Changing an ongoing PIP award should not be treated in the same way as a new claim. When looking at a change to an ongoing award, advisers should check that:
•grounds for supersession have been identified;
•the full evidence has been considered: even when a ground for supersession has been identified, this does not determine the outcome of the decision – ie, what the correct entitlement is. The Secretary of State is still obliged to consider all the relevant evidence when making a determination of the claimant’s abilities;
•and the correct date for supersession has been applied. The effective date from which the supersession applies depends on the ground for supersession that has been identified.
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