PIP mandatory reconsideration

The DWP will always assess you when you make a claim for PIP. Depending on what supporting evidence you are able to send in with the claim, the assessors they sub-contract to in your area (CAPITA or MAXIMUS) could advise the Department that they know enough about you so that they can make a ‘paper assessment’, avoiding any further contact with you. Otherwise, there will be an assessment over the phone or video call. As I write this in May 2021, video assessments are about to begin; it is anyone’s guess when they will return to face-to-face assessments.

If you are unhappy with the decision made by the DWP after your assessment, you can ask them to look at your claim again, what they call a mandatory reconsideration; ‘mandatory’ because you cannot appeal to an independent tribunal until you have been through the PIP mandatory reconsideration. The first step with a mandatory reconsideration is to ask the DWP or the people who wrote to you with a date for your assessment, to post out to you a copy of the full assessment report. Some clients believe that the ‘reasons’ section in the decision letter is the report but it contains only excerpts and the full report is close on 30 pages long. You really need to see what the assessor wrote as you gave your history, what evidence it contains in terms of their assessment of you, as well as their reasons for not recommending more points. You might have not have known that the assessor has this role of recommending what points you should have. The report has a page for each of the 12 PIP activities, from Preparing food to Moving around and the top half of each of those pages has the statements that have points attached to them, what they call ‘descriptors’. Below this, the assessor will have identified what needs you included in your claim form and during your assessment. They will then explain their view of your needs and will point to what they see as evidence for their choice. This could include:

• Low strength pain relief or anti-depressants
• You having been on the same dose long-term
• A lack of specialist input for your condition
• No ‘evidence’ of confusion/fatigue/shortness of breath/pain/memory problems during the assessment
• How you came across to them during the assessment
• What they see as inconsistencies, such as you being able to drive a manual car while complaining of problems with your hands, or having a dog but complaining of severe problems with walking

You might already be shouting at the screen, “Yes but ….” You can see some of things you will want to include when you ask them to look again at their decision.

How do you ask them to do a reconsideration? 

You can ask by phone and the PIP mandatory reconsideration phone number is the one you know and love calling: 0800-121-4433. Expect to on hold for 30-60 minutes to get through. You could instead do a PIP mandatory reconsideration letter. See below for what you could include in that letter.

The DWP might offer to post out a form on which to request a mandatory reconsideration. We see these as being of limited use. They remind you to include your National Insurance Number, to date and sign the request and some useful headings but we recommend that you use it only for that and write/type a PIP mandatory reconsideration letter instead as the spaces that the form gives you might limit what you ought to include in your request.

What is the PIP mandatory reconsideration success rate? 

Not very high, unfortunately. Some of you will see this mandatory reconsideration stage as an obstacle intended to reduce the number of people who challenge their decision. Others will see it as a sensible step that allows incorrect decisions to be put right without the delay, stress and cost to the taxpayer of a tribunal appeal. The Government’s figure for the mandatory reconsideration success rate is under 20%. That is for any additional points being scored, never mind getting to the points that persons should have scored. 

We help clients with mandatory reconsiderations; only this week, our copy of the mandatory reconsideration notice in Mel’s case reached us. She came to us with 8 points for the daily living component and 4 point for mobility. They have awarded her the enhanced rate of both components for a little over 4 years and her arrears were £2,063.52. Our advice to a client who has scored zero or very few points is that, even if we work with them on the mandatory reconsideration, the chances of getting from where they are to the points they ought to have is slim to none. Better instead for such clients to get through the reconsideration stage without us and come back for help with an appeal to an independent tribunal. The fee for our help with the reconsideration would not be good value as the prospects of success would be very low.

What should I include when asking for a mandatory reconsideration?

For us, the starting point is always the PIP test. If you have not seen it, click here,

https://www.legislation.gov.uk/ukdsi/2013/9780111532072/schedule/1

Please don’t skip past that Interpretation section in Part 1 as you need to know what the words and phrases used in Preparing food etc in Part 2 mean if you are going to assess yourself. What I cannot pass on to you here is the experience and knowledge built up over 23 years with the decisions made in the Upper Tribunal, Court of Appeal and the Supreme Court that also tells us how the test should be applied. Reading the other articles on our site will help with this though. 

An example would be with Preparing food, where clients have told us that they can manage but exploring further, this turns out to be them heating ready meals, having oven cooked meals, having snacks such as tinned soup or something on toast or even managing on take-aways. The PIP test wants to know whether, on most days, you can make a simple meal for one person, using fresh ingredients. This has to include peeling and chopping fresh vegetables and then cooking on the hob. Part one explains that ‘cooking’ means at or above waist height so if your oven is built into your cooker, difficulties that you have with bending do not count.

Mel’s 8 points for the daily living component were the ‘usual’ ones: 2 each for Preparing food, Washing and bathing, Managing toilet needs and Dressing and undressing. Looking at the test, if you want more then the 2 points for needing an aid or appliance for Preparing food, you will need to persuade the decision maker that you need someone there to provide supervision or assistance instead of an aid. Look in Part 1 to see what ‘supervision’ and ‘assistance’ mean. Do you have a realistic prospect of getting them to accept this need? You will see references to doing the task safely, to an acceptable standard, being able to do it within a reasonable time period and as often as reasonably required. These come from regulation 4(2A) and the problem is that we have never, ever seen either an assessor or a decision maker apply that part of the law correctly, as shocking as that may sound. Sure, some pay lip service to the law, saying that something can be done in a timely manner or safely but they just ‘tick the box’ and do not actually apply the law. If parts of your claim are based on the four elements of regulation 4(2A), you are very likely to have to appeal to a tribunal to have a chance of getting what you are entitled to. You could be forgiven for thinking that any tribunal member will a) know the law and b) apply it correctly, but that is not always our experience. 

Clients regularly feel that they should have scored points for Activity 7, Communicating verbally, explaining that their depression and/or anxiety prevents them from talking to people as they used to. This is not what this part of the test is there to assess. It is looking at the physical ability to speak and to hear. The difficulties based on depression and anxiety are far more likely to show up in Activity 9, which looks at social engagement and the ability to mix with others.

Commenting on the assessment report

We used to comment on pretty much every misunderstanding (we advise against saying that the assessor has lied) and error we found in assessment reports but moved to doing so only where they are relevant to what we are saying about a particular Activity (Preparing food, etc). An exception would be where there are factual inaccuracies in the report and you want to show that it is likely that they also got something wrong when depriving you of points. Examples of where the assessor has simply got something wrong, rather than you disagreeing with their opinion, might include them noting your medication down wrongly, getting your medical history down wrong or noting who lives with you wrongly. In a recently seen report, the assessor noted that the client had bought her wheelchair where there was evidence of it being provided by a wheelchair service. He would not have said that he bought it so it was an error. Compare the date of the assessment with the date when the report was finished. Look either at the last page or just after the assessment part. We have seen examples of reports being finished up to 14 days after the consultation. If you are trying to persuade a decision maker or a tribunal that the assessor probably got something wrong that is important to what you are saying, it can help to point to this gap in time and suggest that the delay may have been a factor in them getting it wrong.

What evidence should I send in with the mandatory reconsideration request?

It depends on whether you are going through the motions to give yourself the option of an appeal to a tribunal or you really feel that you have a chance of getting the decision changed at this stage. Assuming that you are trying to avoid a tribunal appeal, consider the following:

• GP notes for the last two or three years
• Witness statements from people who have seen your difficulties for themselves
• Assessment reports from other benefits

Things have improved with the introduction of the General Data Protection Regulations (GDPR) as your GP surgery is not able to charge you for a copy of your notes. Paying for a letter from your GP is rarely helpful. How does your doctor know what you can or cannot do in the kitchen or bathroom, for example? If what they write is based on what you have told them, it is likely to be given little weight. In our experience, letters written for medical purposes (which will be in with your notes) carry much more weight than letters written for benefit purposes. Make sure that you read everything in your notes before you send them to the DWP. It is easy to see only the parts that are helpful to you and to overlook the parts that the Department or tribunal may focus on because they are against you. 

Think widely when considering who to ask for a witness statement. They could be family, friends, neighbours, professionals such as a community psychiatric nurse, counsellor, social worker or support worker but could also be a work colleague, manager or someone who cleans for you.

Having a decision from ESA or universal credit that you have ‘limited capability for work’ or for ‘work-related activity’ is helpful but much better to have the evidence that this decision was based on. Call ESA on 0800-169-0310 or use your online journal to ask UC for a copy of the last assessment report. ESA generally post the report on the day you ask for it. Remember that you will probably have been assessed by ESA every two years or so even if you were not seen; another example of a paper assessment. Again, read it all before you send it in to make sure that the positives outweigh the negatives.

How long does a mandatory reconsideration take for PIP?

Expect to wait between a few and several weeks for the mandatory reconsideration notice, the next decision. Mel’s decision was issued a little over six weeks after the request went in.

What if I am still not happy?

The chances are that you have the same points on the mandatory reconsideration notice as you had on the first decision. We do hope that you did better than that but you should not give up if you seem to have made no progress. The same reluctance to believe you, preference to follow the opinion of the assessor and ignorance of the law will be apparent. You should not think that they are right just because two decision makers disagree with you. Get professional and experienced advice before you consider giving up and accepting the Department’s view. 

How to appeal a PIP mandatory reconsideration

This is set out in some detail in other articles on our website. Suffice to say that you should put in your appeal within the one month time limit that runs from the date on the mandatory reconsideration notice, if you possibly can. Do not give up just because the one month has passed. The law allows you to put in your appeal up to 12 months late but the greater the delay, the better your reasons for the delay will need to be. This 13 months is called the ‘absolute time limit’ and for what it is worth, we have never had a late appeal refused just for being late. Even the absolute time limit can be exceeded but only in exceptional circumstances. This is difficult and the client’s circumstances in our two attempts were not found to be sufficiently exceptional.