PIP: process, problems and pragmatism

 

Jon Shaw takes a look at some of the issues with the rollout of personal independence payment (PIP).

Compared with the delayed plans for the implementation of universal credit, the introduction of PIP might seem to be a success story of the government’s welfare reform programme.

However, advisers will not need telling that the process of claiming PIP is (for most claimants) fraught with delays. This article reviews the implementation of PIP to date. It then considers how advisers might attempt to expedite individual claims, and sets out some of the problems that delays are causing in relation to entitlement to other benefits.

The DWP planned to begin ‘natural reassessment’ of working age disability living allowance (DLA) claimants across the country from 7 October 2013.1 For the areas and relevant dates see www.gov.uk/government/publications/pip-postcode-map-uk. While we are not currently aware of any plans to extend the areas, this may happen at any time and without further legislation However, this date was postponed to 28 October 2013, and limited to areas for which a ‘relevant date’ has been specified (referred to as ‘transfer areas’ in this article).' In a transfer area, a claimant must be invited to claim PIP if:2 Reg 3 Personal Independence Payment (Transitional Provisions) Regulations 2013 No. 387 (‘PIP(TP) Regs’)

If a claimant lives in a transfer area and has an existing DLA award that is due to end, it is DWP policy that s/he will be invited to claim PIP, rather than sent a renewal claim form for DLA.

It is only possible for current DLA claimants to voluntarily claim PIP if they live in a transfer area.

It is important to remember that the DWP still has the discretion to invite any eligible DLA claimant to claim PIP, wherever s/he lives.3 Reg 3(1) PIP(TP) Regs The only groups completely excluded from the transfer are under 16s, and those who reached 65 before 8 April 2013.4 Regs 3(2) and 5 PIP(TP) Regs It is particularly important to be aware of this, given the confusion and conflicting information given to some claimants. Advisers should check any letters sent to DLA claimants carefully to see whether they are in fact invitations to claim PIP, 5 See reg 7 PIP(TP) Regs for the form an invitation must take.and check at the earliest possible stage if expected DLA renewal forms have not materialised. This is paramount as if a claimant does not respond to an invitation to claim PIP, the DLA award will be terminated.6 See pp605–9 of CPAG’s Welfare Benefits and Tax Credits Handbook 2014/15

The process of claiming PIP for a transfer claimant is identical to that for new claims. The normal method of claiming is by telephone, although paper claim forms can be sent to people unable to claim by phone. The process is different for terminally ill claimants, who do not have to complete the PIP2 questionnaire or attend an assessment. The DWP has recently announced that a dedicated team now handles telephone claims for terminally ill people (Bulletin 239, p2); and that medical professionals in England and Scotland can now submit DS1500 forms electronically, which is intended to reduce the time taken to decide claims.7 Touchbase, DWP, May 2014

The National Audit Office and the Work and Pensions Select committee have both recently produced scathing reports about delays in processing PIP claims (Bulletin 239, p2). This seems to be an issue with processes within both DWP and the assessment providers. At the time of writing, the only concrete improvement made to the nationwide claims’ process appears to be an automated message on the PIP enquiry line advising callers not to expect a decision within six months, and a text message reinforcing this once the PIP2 has been returned.8 ibid New information sent with the PIP2 advises the claimant that while any GP or medical reports and prescription lists should be sent in with the questionnaire; appointment letters and information about conditions from the internet are less relevant to entitlement.

So what can advisers do to assist a claimant awaiting a decision on a PIP claim? Anecdotally, it seems that the DWP has no process in place to follow up delayed assessments or force assessment providers to expedite a case. Advisers can support a claimant to make a complaint to the provider about the delay. With an original contract target of 97 per cent of assessments to be completed within six weeks,9 Work and Pensions Committee, Oral Evidence: Personal Independence Payment implementation: HC 911, 11 December 2013 Q76 (http://data.parliament.uk/writtenevidence/WrittenEvidence.svc/EvidenceHt...‘WPC Evidence’) this would seem justified in the vast majority of cases, although the PIP toolkit has now been amended to suggest that a face-to-face assessment can in practice take ‘12–16 weeks to arrange.’'10 DWP, Personal Independence Payment claim process overview: the claimant journey, March 2014 version

It also seems worthwhile to complain to the DWP, as it apparently does not know how often the assessment providers’ target is being missed,11 Q77 WPC Evidence and it ultimately decides the claim.

Involving the local MP may speed up the process. Complaints should emphasise the hardship that the delay is causing to the client, highlight prompt compliance with any actions required by DWP, and contain as much information as possible about why the criteria are satisfied.

Probably the most pragmatic approach is to consider whether evidence is available (or may be requested) which the DWP and/or the assessment provider may accept as sufficient to make a decision without a face-to-face assessment. The information on the PIP claims’ process suggests that all cases are referred to an assessment provider, but there is nothing in the regulations that actually requires this. Once a case has been referred to a provider, it is wise to send copies to both the DWP and the assessment provider. The proportion of face-to-face consultations is higher than originally expected.'12 Q96 WPC Evidence Updated guidance to assessment providers now sets out when a ‘paper-based review’ can be considered.13 DWP, PIP Assessment Guide, 27 May 2014, available from www.gov.uk/government/publications/personal-independence-payment-assessm.... See particularly Sections 2.2, 2.3 and 2.5. Consistent and detailed completion of the PIP2 questionnaire will be important, as well as the submission of relevant supporting evidence (if this is available). Claimants should be made aware that the assessment provider may phone and ask for clarification of their difficulties in some areas, before deciding whether to arrange a consultation.

In extreme cases of delay, there is always the threat of judicial review. However, this is prohibitively expensive for many claimants. Also, given that the DWP has acknowledged that decisions are typically taking ‘21–26 weeks’,14 para 18 HB Bulletin G3/2014 a claim would seem unlikely to succeed unless the delay exceeds this estimate. Judicial review may nonetheless be considered in exceptional cases – eg, a claimant who clearly satisfies the PIP criteria and has provided compelling evidence of this, and who is currently subject to the benefit cap and facing imminent eviction.

The fact that PIP acts as a passport to increased means-tested benefits and tax credits can make more difference to household income than PIP itself for claimants on low incomes. Those already entitled to means-tested benefits should not have any difficulty in asking for the awarding decisions to be superseded effective from the date of claim. The Tax Credits Office must be notified of the award – or a new claim for working tax credit made – within one month of the date of the PIP decision for backdating beyond one month to be possible.15 Regs 8, 26 and 26A Tax Credits (Claims and Notifications) Regulations 2002 No.2014

However, there is a problem with backdating new claims for means-tested benefits under the ‘qualifying benefit’ rule, where the would-be qualifying benefit is PIP. PIP is not listed as a ‘relevant benefit’ that can allow extra backdating of a new claim.16 See Reg 6(22) Social Security (Claims and Payments) Regulations 1987 No.1968 (‘SS(C&P) Regs’) This means that claimants whose income is just too high to qualify for income support (IS), income-based jobseeker’s allowance (JSA) or pension credit (PC) before PIP is awarded cannot secure backdating of one of these benefits to their PIP date of claim if the decision takes over three months.17 Note that new claims for income-related employment and support allowance and housing benefit cannot be backdated for longer than the standard backdating rules allow, as the qualifying benefit rules do not apply to them.

The DWP has confirmed to CPAG that this omission was not deliberate, and said it will amend the regulations (although not until sometime in 2015). It states that it intends to treat PIP as if it was a ‘relevant benefit’ in the interim. Claimants should be advised to make a protective claim for IS, JSA or PC (as appropriate) at the same time as claiming PIP; and either ask for the claim not to be decided until a PIP decision is made if they will definitely not qualify unless PIP is awarded, or reclaim once PIP is awarded and request backdating to the date of the earlier claim. However, the latter course is, at the time of writing, not supported by regulations or publicly available guidance. Contact CPAG if any of your clients are refused a means-tested benefit in these circumstances, or the DWP insists on deciding a claim when asked not to do so.

The PIP (Transitional Provisions) Regulations provide that any DLA claimant who complies with the process of transferring to PIP will keep her/his DLA entitlement for at least four weeks after the decision on the PIP claim is made.18 Reg 17 PIP(TP) Regs This offers limited protection to those not entitled to PIP (a projected 608,000 claimants by 2018), but also catches those seeking a DLA supersession in the transfer areas.

Any DLA claimant reporting an increase in care or mobility needs in these areas will not be paid any increased entitlement until a PIP claim has been invited, made, assessed and decided, as the change is treated as not relating to DLA,19 Reg 20 PIP(TP) Regs and instead triggers an invitation to claim PIP. If the claimant qualifies for a higher rate of PIP, the increased rate of benefit will not be paid until several months later in most cases. For claimants on a low income, any additional premiums that might be payable as a result of a PIP award cannot begin before the effective date of the PIP claim.

Claimants who clearly qualify for a higher rate of PIP but already get DLA are losing out in comparison with those outside the transfer areas, in some cases by substantial sums. Advisers could consider suggesting that DLA claimants whose change of circumstances is that they are now terminally ill write and ask to withdraw their DLA claim, effective from the date that they claimed PIP. However, this carries the risk that there is a delay in processing the PIP claim, or the DWP do not accept that the claimant is in fact terminally ill. In any other case, the delay in processing claims and risk of a harsher decision than anticipated mean that withdrawing a DLA claim is definitely not recommended.

Another issue for DLA claimants not currently entitled to the middle or highest rate of the care component is that carer’s allowance (CA) cannot be paid to a carer until an award of a qualifying benefit has been made (although once this happens CA can be backdated to the date of PIP claim, as long as it is claimed within three months and the CA claimant met the entitlement conditions throughout this time).20 Reg 6(33) SS(C&P) Regs However, it is worth advisers considering whether a carer can nonetheless claim IS as a carer pending a decision on the PIP claim. The rule allowing an IS claim to be made by someone providing ‘regular and substantial care’ to someone awaiting a decision on a PIP claim for up to 26 weeks (or until a decision is made on the claim) does not exclude PIP claimants who are receiving DLA. 21 Sch 1B para 4(a)(iii) Income Support (General) Regulations 1987 No.1967 (‘IS Regs’)Once the PIP claim is decided, the IS award can continue until the effective date of the claim, as long as the daily living component has been awarded.22 Sch 1B para 4(a)(iv) IS Regs

It is clear that the expected 12–15 week timescale for a PIP claim to be decided is an aspiration that will not be fulfilled in the short-term. Chasing up delays, seeking evidence and assisting with protective claims all involve extra work for hard-pressed advisers. However, these actions may help to reduce the unacceptable delays in individual cases; and ensure that claimants are not left worse off due to the time taken to get a decision. They may also generate pressure to improve the process on a wider scale, especially where the claimant’s MP is made aware of the situation.

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