PIP reassessment delays

As the DWP grapples with personal independence payment (PIP) reassessment delays, Carri Swann considers how to advise affected claimants.

As of October 2022, it takes the DWP 16 weeks to decide a new PIP claim. While nowhere near the August 2021 peak of 26 weeks, 16 weeks is still a long time for new claimants to wait.1DWP, Personal Independence Payment: official statistics to October 2022, available at gov.uk, (‘PIP Official Statistics’), para 6 The DWP is taking steps to ‘manage’ these delays, like increasing its numbers of case managers and subcontracted healthcare professionals.2DWP email to stakeholders, 16 November 2022 It is also prioritising new claimants for assessment ahead of existing claimants whose cases have come up for review. Unfortunately, this measure is shifting delays from one part of the PIP system – new claims – to another – the award review process.

The DWP does not publish statistics on how long a PIP reassessment takes, but CPAG’s Early Warning System has heard about claimants waiting a year or more between completing a review form and getting a new entitlement decision. Sometimes these claimants have been sent a review form as part of a planned award review, and sometimes because they have notified the DWP of a deterioration in their health.

These delays present a few different issues. In this article, two are considered. First, there is the fear that a fixed-term PIP award might end before a new award is made. Second, there is the issue that people wait too long for a much-needed PIP increase after a deterioration in their health, and when it comes, it is not always applied from the date they expect.

The DWP has taken steps to prevent PIP from going out of payment due to reassessment delays by introducing automatic extensions for some awards. If, 35 days before an award is due to end, it is still ‘awaiting review’, it will be automatically extended by up to 12 months.3Confirmed in DWP, LA Welfare Direct 9/2022, paras 28-31, available at gov.uk

Automatic extensions are not new, having been used extensively at the height of the pandemic. However, the latest policy offers the longest extensions to date. It also promises written confirmation, which has not always been available in the past.

The policy only appears to apply when an award is subject to review. This is not a statutory term.

Being subject to review means that a claimant is sent an award review form (AR1) to complete before their fixed-term PIP award is due to end. The DWP then reassesses them and makes a new decision on their entitlement without them having to reclaim PIP.

Some PIP awards of two years or less are not ‘subject to review’.4para P2063 ADM; DWP response to FOI request FOI2021/ 13215, 2 March 2021, available at whatdotheyknow.com; there is implicit confirmation that this approach continues in the PIP Official Statistics at para 4. A decision maker has discretion to make this kind of award if they think that (eg, because of planned treatment) the claimant will no longer qualify for PIP at the end of the award period. The DWP sometimes calls these ‘short-term awards without review’.

The DWP makes lots of short-term PIP awards: as of October 2022, 77 per cent of new awards were for two years or less.5PIP Official Statistics, para 4 As a result, it is likely that many PIP claimants are not subject to review.

Instead of being sent an award review form, short-term award claimants get a letter some months before their PIP is due to end prompting them to make a new PIP claim. This ‘renewal claim’ is made in the same way as any other new claim and can be put in up to six months before the existing award is due to end.6Reg 33(2) Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013, No.380. As noted above, the average waiting time for a decision on new claims is 16 weeks.

Although ‘review’ and ‘renewal’ are sometimes talked about interchangeably, in practice these are clearly two quite different processes. For a claimant coming towards the end of a fixed-term PIP award, it is crucial to know what they are expected to do and when. If you are not sure whether your client is subject to review or not, you can normally find this information in their award letter or by calling the PIP helpline.7The wording in the award letter might be: ‘We will also contact you while you are getting PIP to see if your needs have changed and to look at the amount you get. This will be after [date].’

If your client’s award is subject to review, and this has not been completed 35 days before its end date, the award should be automatically extended as described above. If it is not subject to review, it appears that it will not be extended. This could mean your client’s award ending before their renewal claim is decided, leaving a gap in payments.

What is not clear is whether your client could get around this by making a supersession request (ie, reporting a change of circumstances) more than 35 days before their existing award ends. If they do so, they are classed as awaiting an unplanned rather than a planned review. The policy and indeed the relevant law does not distinguish between the two, and it is possible that having either kind of review outstanding will mean their award is identified for extension.

When you are advising someone who has a short-term award without review, you might therefore suggest they report a change of circumstances at the same time as making a renewal claim. A relevant change of circumstances can be that their difficulties are expected to last beyond the end date of their award, even if the level of their difficulties has not changed.8PH v SSWP (DLA) [2013] UKUT 268 (AAC). While this was a DLA case, it is strongly arguable that the reasoning also applies to fixed-term awards of PIP. This approach, although admin-heavy, might give them the best chance of being protected from a gap in payments. The best advice will always depend on the facts of the case.

Yes, in principle. A PIP award made by the tribunal can be superseded for a change of circumstances in the same way as other awards.9Reg 23(1)(a) Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013, No.381 (‘UC,PIP,JSA&ESA(D&A) Regs’) If this is the legal ground the DWP is using to make automatic extensions – and it appears to be – then it follows that an award made by the tribunal will be automatically extended, so long as it is ‘awaiting review’.

However, some advisers have reported that the DWP is not always attaching review dates to tribunal awards in the way as it does to other awards – ie, even where they are for more than two years. These awards are therefore not being automatically extended. The DWP does not have any statutory obligation to review awards, but its approach here does not appear to be in line with its own policies.10See footnote 4

When you are advising someone who has an award made by the tribunal, do check their DWP award letter or call the PIP helpline to ask if an award review date has been set. The answer will determine the advice you give (see answer to ‘Does the automatic extensions policy apply to all PIP awards?’ above).

As of mid-December, affected claimants are automatically sent letters confirming their extended PIP entitlement. The DWP has told stakeholders that any affected claimant who has not automatically received a letter (eg, because their award was extended before December) can call the PIP helpline and ask for one.

CPAG’s Early Warning System has heard that some councils are adapting to the situation by offering longer Blue Badge extensions based on previous medical information in appropriate cases, rather than extending for 12 months or less in line with the PIP award.

A second issue for existing PIP claimants hit by assessment delays is that they may wait a long time for much-needed PIP increases after experiencing a deterioration in their health. When they do get a new decision, the increase does not always apply from the date they expect.

From what date should PIP increase? There are several factors to consider.

PIP can usually increase no earlier than three months after your client starts satisfying the conditions for a higher rate. This is part of the ‘required period’ condition for PIP eligibility, and is statutory. So if, for example, your client’s needs increased in December 2022, their award can increase from no earlier than March 2023. They should still report the change as soon as possible, and not wait three months to do so, as this will simply hold up the reassessment process.

The date of any increase will also depend on which grounds of supersession are being used by the DWP to increase your client’s award. The answer to this question determines the relevant date of the increase – but it is not always straightforward.

In this situation, you client’s award should be superseded on the grounds of a change of circumstances.11Regs 12 and 13 Social Security (Personal Independence Payment) Regulations 2013, No.377; reg 23(1)(a) and Sch 1 para 15 UC,PIP,JSA&ESA(D&A) Regs If they report the change ‘no later than one month’ after it happens (or later if the DWP agrees), then the supersession takes effect from the date of the change of circumstances. This needs to be read together with the required period rules above – ie, so that, technically, the change would need to be reported within a month of satisfying the required period condition. In practice however, it remains good advice not to wait until then, but simply to report the change (the deterioration in health) as soon as possible.

For example, if your client’s mobility gets worse because of an accident on 1 December 2022, and they notify the change in their needs any time between 1 December 2022 and 1 April 2023, their award should be increased from 1 March 2023. If they tell the DWP about the change on a date after 1 April 2023, then unless the DWP agrees to allow a late notification, the increase will only take effect from that notification date.

In this case, you could argue that your client notified the DWP of a change of circumstances on the date it received their completed AR1 form; that the DWP should therefore supersede their award on the grounds of a change of circumstances; and that the effective date of any increase should be worked out accordingly.12See footnote 11. Note that, for Sch 1 para 18 of the UC,PIP,JSA&ESA(D&A) Regs, it seems unlikely that the DWP sending you an AR1 in a planned review case could amount to ‘action with a view to supersession’. However, the success of this approach might be dependent on what your client wrote in their AR1 form. The DWP may not agree to supersede on this basis, and want instead to apply the alternative rule described below.

In either (a) or (b), the DWP might try to supersede your client’s award on the alternative grounds of receipt of new medical evidence from a healthcare professional.13s10(5) Social Security Act 1998; reg 26 UC,PIP,JSA&ESA(D&A) Regs Supersessions made on this ground have a different effective date from supersessions made for a change of circumstances. If this medical evidence ground applies, any increase in your client’s award will only apply from the date of the DWP’s new decision.

When both possible grounds for a supersession apply, and the DWP uses the ground that is less generous to the claimant, that is at least potentially wrong, and its decision can be challenged. In the reported decision in DS v SSWP (PIP) [2016] UKUT 538 (AAC), reported as [2017] AACR 19, Judge Mesher noted that the PIP supersession rules make particular provisions about changes of circumstance that are advantageous to the claimant, and stated: ‘So far as decisions that are advantageous to the claimant go, there is then no difficulty in applying a general principle that the claimant should be able to take the benefit of whatever ground gives the most advantage.’