Pipped at the post

Jon Shaw highlights some issues with personal independence payment, which was rolled out nationally on 10 June 2013.

By the time this Bulletin hits your desk it will no longer be possible for people aged 16–64 to make a claim for disability living allowance (DLA), unless they already receive it and are renewing their award. New claimants must instead claim personal independence payment (PIP). This article examines the process of claiming the new benefit and being assessed, and issues that are likely to arise.

In addition to being aged 16–64 at the date of claim, claimants of PIP must also meet other basic conditions relating to residence and presence in the UK.1 ss77(3) and 84 Welfare Reform Act 2012 c.5 (‘WRA 2012’); Part 4 Social Security (Personal Independence Payment) Regulations 2013 No.377 (‘SS(PIP) Regs’)Notably, these conditions include a habitual residence test and a requirement for presence in two out of the last three years, conditions that previously did not have to be met for DLA.2 See CPAG’s Welfare Benefits and Tax Credits Handbook p1573 for more details There is a daily living and a mobility component, each paid at a standard or enhanced rate. Entitlement to these is assessed using a points-based test, considering how the claimant’s physical or mental condition impacts on her/his ability to carry out 10 daily living activities and two mobility activities.3 Part 2 and Sch 1 SS(PIP) Regs Unless terminally ill, the claimant must also satisfy the required period test – the level of needs must have lasted three months before PIP is paid, and at that point the needs must be expected to last for at least a further nine months.4 ss78, 79 and 81 WRA 2013; Part 3 SS(PIP) Regs

PIP was first introduced in most of the North of England from 8 April 2013. Since 10 June 2013, it has been rolled out across the country. While the claims and payments regulations permit a number of methods of claiming PIP5 Regs 2 and 11 Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013 No.380 in practice a claim must normally be started by telephoning 0800 917 2222 (textphone 0800 917 7777). Those claimants who are unable to complete a claim over the phone will have a paper form sent out to them. An example of this form can be seen on the DWP website.6http://www.dwp.gov.uk/docs/pip1-claim-form.pdf

While making a valid claim and meeting the non-disability conditions is likely to be unproblematic for many, it is at this stage that the DWP checks whether the residence and presence conditions are met or not, which is sure to lead to refusals of claims from some claimants who have spent time abroad or are non-UK nationals.

The initial process of claiming is different for people claiming on the grounds of terminal illness.7DWP, PIP Assessment Guide, 4 April 2013, pp21–5 They will be advised to get a DS1500 form completed by a consultant, doctor or specialist nurse, if this has not already happened, and asked questions about any mobility problems they may have as part of the claim. The assessment process explained below will not normally apply. Instead, the DWP will send the details from the initial claim (and the DS1500 if received) to the independent assessors, and ask them to provide advice on whether the claimant is terminally ill and the extent of likely mobility restrictions. Normally there will not be a face-to-face assessment.

Once a valid claim is made and it is accepted that the basic entitlement conditions are met, a paper questionnaire is sent to the claimant by the DWP.8http://www.dwp.gov.uk/docs/pip1003-how-your-disability-affects-you-form.pdf

There is one month to return the questionnaire, from the date it is sent. This period can be extended if DWP accepts it is reasonable. If the questionnaire is not returned and the claimant does not have a good reason for the failure, a ‘negative determination’ is made, refusing the claim. The DWP has made clear that it does not intend to make such determinations where there is an identified need for additional support due to a learning disability or mental health problems, etc., and that such claimants should still be invited for a face-to-face assessment.9DWP, PIP Assessment Guide, 4 April 2013, pp56–7 However, this is not mentioned in the regulations, so claimants should be advised to complete the form if possible.

The next stage of the process is referral to an independent assessor. The contracted assessors are Capita in Central England, Wales and Northern Ireland, and Atos in the rest of the UK. The assessor reviews the available evidence, and decides whether to gather further evidence from someone who knows the claimant. If s/he decides it is necessary, s/he requests the evidence her/himself. In most cases, the claimant is also invited to attend a face-to-face consultation. S/he is able to bring a friend or carer along to the assessment, who should be able to provide relevant information to the assessor as well. The approach to consultations is different in different areas. Capita has stated that it will offer claimants the option of a home visit, while Atos has not – although the claimant is able to request one if s/he cannot attend an assessment centre.10 DWP, PIP Assessment Guide, 4 April 2013, pp40–2

Once the consultation is completed, the assessor prepares a report which is sent to the DWP along with any other evidence obtained. A ‘claims manager’ (this appears to be the preferred term for PIP decision makers) then looks at all of the evidence and decides the claim. It is possible for the claims manager to refer the report back for reworking or raise any queries with the assessor.

If a claimant is refused PIP or is unhappy with the award made, it is possible to request a revision of the decision. This should be done within one month of the date that the decision is sent, although late revision requests can be considered if the request meets certain conditions.11 Reg 6, Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013 No.381 (‘D&A Regs’)There is no right of appeal against a PIP decision until the DWP has considered a revision request, although the decision notice must state this.12 Reg 7 D&A Regs

The claimant is notified of the outcome of a revision request and is sent a mandatory reconsideration notice. An appeal can then be made directly to the First-tier Tribunal. The normal time limit is one month from the date the notice is sent, although the tribunal has the power to extend this. The appeal must be sent with the mandatory reconsideration notice. The new appeal form also incorporates the existing TAS1 enquiry form.13http://hmctsformfinder.justice.gov.uk/courtfinder/forms/sscs1-eng.pdf

Entitlement to a component of PIP will be determined using a points-based test. A claimant scores points (0–12) for one descriptor in each of the 10 daily living and two mobility activities.14 Sch 1 SS(PIP) Regs The total scores are compared with a threshold of eight points to qualify for the standard rate of a component, and 12 points for the enhanced rate. Before the PIP assessment was laid before Parliament, the DWP had already issued draft amending regulations.15 SI 2013 No. 455, which inserted Regs 4(2A) and 4(4) into the SS(PIP) Regs These provide that the claimant is only assessed as able to carry out an activity at the level described by a particular descriptor if s/he can do so ‘reliably’ – defined as safely, repeatedly, to an acceptable standard and within a reasonable time period. Several of these terms are themselves further defined:

• ‘safely’ means in a manner unlikely to cause harm to the claimant or another person, either during or after the activity;

• ‘repeatedly’ means as often as the claimant reasonably needs to complete the activity; and

• ‘within a reasonable time period’ means in no more than twice the maximum time it would normally take a person without a physical or mental impairment to complete the activity.

The inclusion of these definitions in the regulations themselves is undoubtedly welcome (the previous suggestion had been that the terms would only be mentioned in official guidance). This allows advisers to argue on behalf of claimants that more points should be scored in the assessment as the claimant cannot complete the activity at the level assessed ‘reliably’. However, the definition still leaves a wide discretion, and so may cause difficulties for advisers and assessors, claimants and claims managers.

The question of ‘reliability’ is vital for deciding whether, in terms of the daily living activities, the claimant should be assessed as needing to use an aid or appliance or needing another person to give prompting, supervision or assistance. These are given different points’ scores in most of the 10 activities. Regarding the mobility component, the same question establishes how far a claimant can move or what help is needed to plan or follow journeys, affecting the points scored for the activities. The DWP has produced extensive guidance on incorporating these concepts into the assessment.16 DWP, PIP Assessment Guide, 4 April 2013, pp77-90

It is not clear who the claimant is to be compared with in deciding whether s/he can manage an activity in a reasonable time. While the smart money would be on a comparison with a person of the same age in an average state of health, there is nothing forcing a comparison in these terms. The guidance does not take us very far in setting a benchmark of what ‘normally’ is intended to mean. The examples given are so extreme (all morning to prepare breakfast, or two hours to wash and dress are stated to be an unreasonable length of time), that they are little help in deciding where this line should be drawn.

For claimants who take a long time to complete an activity, there will be a further question about whether assistance with part of an activity allows it to be completed in a reasonable time. If the claimant is able to make a meaningful contribution to the completion of an activity, it would seem to make it likely that s/he will be assessed as needing assistance with parts of the task. However, advisers should consider whether it can be argued that the claimant needs so much help to complete the activity in a reasonable time that any contribution should be disregarded, and points awarded for a ‘cannot’ descriptor instead.

The assessment of how often the claimant reasonably needs to repeat an activity should take into account the impact on the claimant’s ability to undertake it later on the same day if needed, and indeed on subsequent days. The guidance suggests that it is only reasonable to cook once a day, but that the claimant should be able to prepare food three times. This, however, seems a very restrictive interpretation, as it could hardly said to be unreasonable for someone without a disability to eat something hot twice a day. The concept of how often someone can be expected to repeat an activity will be crucial to entitlement to the mobility component for those with physical walking problems. Again the guidance is little help, suggesting that someone who can only move 20 metres once a day cannot do so as often as reasonably required. While this is obviously correct as far as it goes, the fear is that assessors will turn this on its head and assess anyone able to move 20 metres twice a day as able to do so ‘repeatedly’. This will surely be less often than is reasonably required for many claimants.

A further point to note about the concept of reliability in relation to physical mobility is that if the claimant fails on one of the four aspects of reliability, then the descriptor is not appropriate. So, a claimant walking over 200 metres, but taking over twice as long over the first 20 metres as someone with no disability normally takes, could arguably score points for not managing to cover 20 metres reliably, even though s/he walks 10 times that distance without stopping.

The concept of completing an activity to an acceptable standard is, by comparison, relatively straightforward. It will, however, be important for advisers to be clear that difficulties completing activities to an acceptable standard do result from a mental or physical condition. For example, the guidance suggests preparing and cooking food to an acceptable standard does not involve consideration of whether a healthy or balanced diet is achieved.

Perhaps most difficult of all is the interaction of the concept of doing something ‘safely’ with the descriptors that make reference to a need for ‘supervision’. Supervision is defined as the continuous presence of another person for the purpose of ensuring the safety of the claimant.17 Sch 1 Part 1 SS(PIP) Regs It is frankly difficult to believe that the interaction between the two terms has been thought through. Supervision must ensure the claimant’s safety, while the claimant can do something reliably with supervision if harm is unlikely to result. The issue is in deciding whether the risk is substantial enough on the majority of days in the required period, with guidance suggesting that any harm to the claimant (or someone else) must be ‘likely’ to occur.

To actually ensure the claimant’s safety in the event of this likely risk occurring, the person supervising would need to provide either verbal prompting or physical assistance, in the majority of cases. For example, when cooking, if the risk of harm is substantial enough from burns on hot pans or from chopping vegetables, then surely ‘supervision’ does not actually ensure the claimant’s safety, and ‘assistance’ is needed with these parts of the task to make harm unlikely to occur. This seems to leave little space in which the supervision descriptors should actually apply in several of the activities.

From 7 October 2013, the DWP can invite any DLA claimant who was under 65 on 8 April 2013 to claim PIP. Some people will be able to predict when this may happen.

It will also be possible for existing DLA claimants under 65 on 8 April 2013 to claim PIP voluntarily. Advisers will need to consider the possible implications of this, including the potential for harsher than expected decisions on PIP claims and the consequent loss of passported benefits, etc. Whether the claimant is invited to claim PIP or does so voluntarily, the DLA award will be terminated when a decision is made on the PIP claim (or if the PIP claims process is not followed).

The last group who must be invited to claim PIP is those who, on or after 7 October 2013, report a change of circumstances which they ‘might reasonably have been expected to know might affect the continuance of that person’s entitlement to disability living allowance (by ending entitlement to one component or both components or resulting in entitlement to one or both components being at a different rate)’.20Reg 2 PIP(TP) Regs (definition of ‘change of circumstances’) There is an exemption for those who report the change that they have temporarily or permanently left the UK, but everyone else must be invited to claim PIP.21 Reg 3(5) and (6) PIP(TP) Regs This raises the uncomfortable possibility that a DLA claimant legitimately reports an increase in her/his needs, only to be assessed for PIP and not qualify, also losing the award of DLA. Advisers will need to be ready to provide advice about this possibility to claimants who seek help before reporting a change, as otherwise the claimant could end up being transferred to a lower rate of PIP (or being refused it entirely) up to four years before this might otherwise have happened. While the claimant is still under a duty to report changes relevant to DLA entitlement, the question in many cases will be whether the claimant could reasonably know that the rate of DLA could change.

An award ending within six months of the claimant’s 16th birthday is extended until her/ his 17th birthday (unless a PIP decision is made before then).22 Reg 18 PIP(TP) Regs Any other DLA award can be extended where the DWP feels it may end before a PIP entitlement decision can be made.23 Reg 19 PIP(TP) Regs