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. 

Should your PIP payment be backdated and will the DWP tell you?

Thousands of PIP claimants with mental health difficulties will have had their claims decided wrongly because they will have scored too few points for Activity 9 – Engaging with others face-to-face. This section of the form is headed ‘Mixing with other people’.

What has changed?

If the health professional and/or decision maker accepted that the claimant needed to be prompted/encouraged to be able to engage with other people, they would have been awarded 2 points for descriptor 9(b). In my experience, there is a good chance that even those 2 points were not awarded when they should have been (see below). The Supreme Court, the highest court in the UK, made a ruling in July 2019 that 4 points for descriptor 9(c) can be awarded for the need for prompting, an increase of 2 points. That descriptor reads ‘Needs social support to be able to engage with other people’. 

You probably know that at least 8 points are needed for an award of the standard rate of the daily living component and that 12 or more points are needed for the enhanced rate. You can see that a claimant who was wrongly denied those 2 additional points could have missed out on either the standard award or on qualifying for the enhanced rate instead of the standard rate. 

What is the DWP doing about it?

They are going to carry out an administrative exercise where they trawl through the decided cases to identify those who they believe would have been decided differently if the Supreme Court case of Secretary of State for Work and Pensions versus MM had been applied. You can search online for this 20 page decision if you like. It is interesting stuff but perhaps the highlights are in paragraphs 34/35 and 47/48. Where the Department change the decision on a case identified in the trawl, they will make backdated payments to the claimant. The Department is to adopt the date of the Upper Tribunal decision in MM, that came before the Supreme Court part, as the date from which this new approach to Activity 9 should apply, being 6 April 2016. That means that the trawl will look at decisions made between that date and 17 September 2020, which is when the Department say that they began applying the Supreme Court decision.

Should I sit back and wait for the DWP to review my case and pay me?

On past performance, no. I have been using the case of MM in tribunal appeals and reconsideration requests since it came across my desk in 2019 and have been taking it into account in the wording used in claim forms, trying to lead the health professional/decision maker in the right direction. Too many assessors appear unable or unwilling to test and assess the credibility of the claimants and may not ask the right questions anyway. They often dismiss the claimant’s evidence unless there is ‘further medical evidence’ (FME) to support it. 

For these reasons, there is a fair chance that a claimant who has problems in this area will have missed out not just on the 2 additional points but on the whole 4 points for this part of the test. You can see how 2 points for Activity 9, or the 4 points for the higher scoring descriptor, could make a huge difference to a claimant’s award. 

Does everyone who needs prompting to mix now get 4 points?

No, the Supreme Court said that it is about whether the claimant needs that social support, which they said can include prompting. That phrase ‘social support’ means, for this purpose, that to be able to engage with others, the claimant needs support to come from someone trained or experienced in assisting people to engage in social situations. Before the decision in MM, the thinking was that there had to have been ‘social support’, and quite close to the PIP decision date too, but the Supreme Court said that this was the wrong approach. There is a heading in the Supreme Court decision of “The qualitative issue” and they say that it goes beyond simply looking at who the prompting needs to come from; that it must be about the seriousness of the claimant’s problems in this area. So, it is not sufficient to explain that prompting from family and others familiar with the claimant has not been effective, the assessor/decision maker/tribunal must consider how badly the claimant is affected by their mental health condition. 

What can I do now?

If you just missed out on either an award or on the enhanced rate, and were awarded 2 points for Activity 9, Engaging with others, and, based on what you have read above, you believe that you should instead have scored 4 points, then you can ask the DWP to look again at your claim, referring them to the Supreme Court decision. There would be no point in doing this if the extra 2 points was only going to lift your score from say, 4 points to 6 points, as there would still be no entitlement.

Those who stand to gain most in arrears will be those who were awarded 6 or 7 points and who should have an award. Remember too that having an award of the daily living component can trigger entitlement to a severe disability premium in an ESA award. This is £66.95 a week at the moment. There are other conditions to be met but if you qualify, this would be backdated to the start of your PIP award. You may not get this automatically, so ask ESA once you have your PIP award.

I didn’t get any points for Activity 9 – Engaging with other people

If you feel that you missed out because, for example, prompting was required but this was not accepted so you scored zero, it depends on when the last decision was made. The time limit for requesting a reconsideration or appealing to a tribunal is one month. You can add a further 12 months, making 13 months, if you have a reason for being late. This is called the ‘absolute time limit’ but there is provision for going back beyond even this, but only in ‘exceptional circumstances’. You may have nothing to lose in applying for a reconsideration or appeal within the 13 months. If your claim is reconsidered, you are back in the system and will have a new appeal right of one month from the new decision. Backdating to 6 April 2016 will not be available though. Otherwise, it would be as case of making a fresh claim or a change of circumstances claim, if you already have an award.

It took the best part of 2 years but Mary eventually got the right award. At the claim stage, she had 8 points and 4 for mobility. The tribunal in Southampton allowed her appeal but Mary still had only the standard rate of both components so we challenged the tribunal’s decision on a point of law and the local judge gave us permission to appeal to the Upper Tribunal. They allowed her appeal, set aside the Southampton tribunal’s decision and directed that her appeal be re-heard by a different panel. We were delighted when this tribunal allowed Mary’s appeal and awarded her the enhanced rate of both components with arrears of about £6,200. More importantly, this gave her access to the Motability Scheme which will sort out the adapted car that she needs to get around.

Let us look at the process of challenging a tribunal’s decision. You will need the appeal papers so do not through these away in temper (we have known it to happen). You have one month from the date the tribunal’s decision was given or sent to you in which to request a statement of the tribunal’s reasons for their decision and I recommend that you also request a copy of the record of proceedings, the note of the evidence made by the judge. With an appeal heard by conference call, you will be sent a form to use to request a copy of the recording.

You were able to challenge the first decision and that made at the reconsideration stage just by saying that you disagree with it. The focus changes from these matters of fact to matters of law when it comes to challenging a tribunal’s decision. You need to find one or more errors of law in the statement of reasons. A short statement might be four pages and the longest we have seen was 19 pages. We will look at what can amount to an error of law and we have included paragraphs from current files to give you an idea of how we do it.

Any of these can amount to an error of law:

• If the statement shows that the tribunal has misunderstood the legislation, overlooks relevant case law or uses the wrong legislation.
• They must explain their decision, explaining how the evidence established the facts that they found and why those facts made it apply the law in the way that it did.
• The tribunal must decide what the facts are and must not take into account irrelevant facts.
• If the tribunal makes a decision that is not supported by the evidence, this can be an error of law, so it must not ignore or overlook evidence. The statement might show that they have misinterpreted evidence or that they took into account irrelevant evidence. The decision should follow logically from the evidence before them.
• A ‘perverse’ decision could be an error of law. This may initially seem an attractive option but bear in mind the legal meaning of the word. It would apply if the tribunal acted irrationally and in a way that no reasonable tribunal with the evidence it had before it and given the relevant law, could have come to this decision. 
• A breach of the rules of natural justice could also be an error of law. I would say that this does not apply too often; I don’t think I have either used it or seen it in an Upper Tribunal decision. A failure to follow procedure would be included, as would a failure to give the parties notice that it intended to take into account something not included in the appeal papers or raised during the hearing. It could include bias or not allowing a party to speak. Yes, we regularly hear this from clients but it is usually because a witness was not allowed to interrupt while the appellant was giving evidence. That would be normal and not an error of law, as long as the witness was given an opportunity to say what they wanted before the hearing ended.

It is not unusual for a tribunal to focus on the date of the decision and depending on how this is set out in the statement of reasons, this can be an error of law. This is how we expressed this in a current file:

2. The tribunal state that they must consider the appellant’s conditions and functioning at 7/11/2019, being the date of the DWP decision, and told her that this would be their approach (paragraph 26). They applied this reasoning at paragraphs 19 and 23 with their finding that the appellant had no diagnosed mental health condition at the time of the decision. Regulation 7(3) of the 2013 Regulations defines the ‘required period’ where entitlement falls to be determined, being a period of three months ending with the prescribed date together with the period of 9 months following this. We submit that the tribunal was in error of law in concentrating on the time of the decision in reaching its own decision on the appeal (paragraphs 25 and 26 of Upper Tribunal Judge Mark’s decision in PR v SSWP [2015] UKUT 0584 (AAC)), since they either misunderstood the legislation or overlooked relevant case law.

25. The required period is defined by regulation 7(3) where entitlement to PIP falls to be determined, the period of three months ending with the prescribed date together with, for present purposes, the period of 9 months beginning with the date after the prescribed date.    The prescribed date is defined by regulation 14 as it applies to the present case as the date of the claim or, if later, the earliest date in relation to which, if C had been assessed in relation to her ability to carry out daily living activities at every time in the previous 3 months it is likely that the Secretary of State would have determined that the Secretary of State would have determined at that time that she had limited ability or severely limited ability to carry out those activities.

26. It can be seen that in the present case the tribunal had to consider the position over any 12 months period commencing between 3 months before the date of the claim, i.e. 17 October 2013) and 3 months before the date of the decision (i.e. 5 May 2014).  The tribunal was therefore in error of law in concentrating on the time of the decision in reaching its own decision on the appeal.

Look also for what the tribunal do not say, what they did not consider:

The appellant described her walking as “very slow” (page 52), while the HCP described her pace as “slow” (page 72). The tribunal accepted that her walking was slow (paragraph 49) but made no finding on whether that slow pace would allow her to achieve any distance within a “reasonable time period”, as defined in regulation 4(4)(c). The tribunal relied on the appellant’s statement to the HCP that she could walk for one minute before needing to stop for a few minutes (Page 72) but made no attempt to see if the appellant was aware of how long a minute was. Average walking speed is considered to be 1.4m/sec. A person would cover 84 metres if walking for one minute at such a pace, whereas the tribunal reasoned that walking “slowly”, the appellant would walk “in the region of 40m”. We submit that this is further evidence of the tribunal not having considered what distance the appellant could achieve “within a reasonable time period”. We submit that the tribunal erred in giving inadequate reasons for their decision or in not making appropriate findings of fact.

An example from a different file:

When considering entitlement under Preparing food at paragraphs 25-29, the tribunal rely in part on the claimant’s ability to take a bus into town to buy food on most days and his evidence that he could make a meal from scratch on two or three days a week. We say that the tribunal erred in taking into account irrelevant evidence in inferring that, on most days, he would be able to cook himself a meal or have given inadequate reasons. In the alternative, we say that the tribunal have failed to apply or have misunderstood the “on over 50% of days” provision set out in regulation 7(1)(c).

There is no need to use the same language but I hope that these examples help by showing at least one way of doing it; it can be daunting to know where to begin when you look at a blank page. You will be able to see the regulations and the cases you see here by putting them into your browser.

The tribunal concluded that the claimant needs prompting to be able to engage with other people and did not dispute the 2 points for 9(b), awarded at the reconsideration stage (paragraph 43). The accepted that he finds mixing with other people very difficult and that it causes him considerable distress, leading to him not talking to people that he does not know (paragraph 44). The tribunal’s reasons for concluding that he does not need social support, so does not instead score 4 points for 9(c) are set out at paragraph 47. Most of the paragraphs following this appear to justify their decision not to award points for 9(d). We respectfully refer to the Supreme Court decision in SSWP v MM where the “qualitative issue” to be considered when deciding whether 9(b) or 9(c) applies in a particular case is discussed from paragraph 28. The Court said that it is not merely about where the prompting is to come from but that the seriousness of a claimant’s difficulties and limitations are to be considered in deciding whether the support needs to come from someone trained or experienced in assisting people to engage in social situations. Given the evidence that the tribunal had accepted and the clinical psychologist’s conclusions in the 2014 report (page 52), we say that the tribunal’s reasons for concluding that prompting would be sufficient are inadequate and that they have misunderstood the legislation or have overlooked relevant case law.

You have been through the statement of reasons and have found at least one something that you consider to be an error of law. Send this in or with a letter to the office that issued the tribunal decision, either by post or by email. A few weeks may pass but your application for permission to appeal to the Upper Tribunal will be considered by a judge. This will be done without a hearing so what you write needs to be clear and to stand on its own as you will not be there to explain further. 

That judge can make one of three decisions:

• You could have made such a good argument that the judge sees no need to send it to the Upper Tribunal. Instead, the law allows them to set aside the tribunal’s decision and direct that your appeal be re-heard by a different panel. 
• The judge could agree that arguably there is an error of law in the statement of reasons. They would give you permission to appeal to the Upper Tribunal (UT) and along with that grant of permission, you would get a form UT1 on which to formally appeal to the UT. 
• They may not accept that there is an error law in the statement of reasons, so they would refuse permission to appeal. That decision would also come with a form UT1 because this form can also be used to apply to the UT for permission to appeal. Yes, they too can grant this. 

If the first bullet point applies, then there will be a re-hearing so that you can put in additional evidence and legal argument. Remember that this second tribunal can make any decision it sees fit, which includes taking any or all points away, leaving things as they are or giving you exactly what you wanted. It will only take points away if it feels that the evidence points that way. It is not common for a tribunal to think that way but it happens. If it does feel that some or all points are in doubt, it must warn you and will often adjourn, either for a few minutes or to another day, so that you have the option of withdrawing your appeal and walking away with the points awarded at that point. 

Having permission to appeal (the second bullet above) does not mean that you must succeed with your appeal to the Upper Tribunal but it is a very good start. The Upper Tribunal will copy your permission request and the decision granting you permission to the DWP and require them to respond. That submission will say whether or not they support your appeal and more often than not, they do give that support. The Upper Tribunal judge does not have to agree with you or with what is included in the submission put in on behalf of the Secretary of State. That submission will be copied to you with a form on which you can comment. 

It is not all unusual for the local judge to refuse permission (the last bullet point) and you should not be downhearted about this. A judge will often use standard wording but if they have commented on the grounds that you used, you can make adjustments when you use the form UT1 provided to renew your application for permission, directly to the Upper Tribunal. The Upper Tribunal judge does on to give permission to appeal in the majority of my applications like this. I do not know whether what the UT judge says when granting permission gets fed back to the local judge who refused permission, but I doubt it. Once the Secretary of State’s submission and your comment form (on which you can just say that you have no observations to make), then your UT appeal waits for your judge to decide it. The UT1 gives you the option to request an oral hearing but I doubt that these are happening during the current COVID restrictions. The vast majority of Upper Tribunal appeals are decided on the papers, without the parties being present. In my 22 years, I have done only two oral hearings before the Upper Tribunal. I asked for the first one, many years ago with a client who suffered with OCD. It had taken he and I 14 hours to complete his DLA claim form. I thought that there was a legal point to be decided that would have wider application to others and it came down to whether the brain was an organ, for benefit purposes. Even if you ask for an oral hearing, one will only be granted if they agree that it is appropriate. I did find that oral hearing in London daunting. Upper Tribunal hearings are about matters of law, rather than matters of fact so the client was not present and the Secretary of State is represented by either a solicitor or a barrister. We lost that appeal but I read years later that the decision on whether the brain was an organ for benefit purposes was decided the other way, so the law changed, which happens. So, the client and I were on the right track but either I did not have the skills or evidence to persuade the judge or it was down to the judge.

The only other oral hearing was not because we asked for it but because the Upper Tribunal judge insisted on it, because he considered that there was a point of wider application. That hearing was in Cardiff and because of the unusual nature of the point on an ESA appeal, that the judge wanted the client there too. That appeal was allowed and the client went on to win when her appeal was re-heard by a different panel. Just now and then the Upper Tribunal judge will be able to substitute their decision for that of the first local tribunal because there is no need for further evidence to be given, but most successful Upper Tribunal appeals result in the first local tribunal decision being set aside with a direction that the appeal be re-heard by a different panel. That new panel can make what decision they like; they do not have to allow the appeal when the focus changes back to matters of fact. One current client, David, had this experience and, unusually, the Upper Tribunal has given permission to appeal a second time, so if that goes well, we are probably headed for a third hearing.

If you have an award of less than the enhanced rate of both components of PIP, then you might wonder if a change in your circumstances should be reported to the Department. Many awards of PIP are made for three years but they can be 4, 5, 10 years or ‘ongoing’, without an end date. You might wonder if it is a good idea to wait until a fixed period award ends or to open up the whole process by notifying them of a change of circumstances. The purpose of this article is to encourage you to think along the right lines if you find yourself in this situation.

What counts as a change of circumstances?

Medication 

A relevant change of circumstances would be one which was capable of affecting your entitlement, so we are talking about something that would affect the points that you should be awarded. Being prescribed different medication would not normally be seen as a relevant change as I cannot see how this alone would affect entitlement to points. Instead, look at why the medication has been changed.

You could have uncontrolled epilepsy and your specialist would like to at least reduce the frequency of seizures. I cannot put myself in the shoes of an epilepsy sufferer, or of any other debilitating condition; my daughter’s seizures are uncontrolled and a cluster was once the cause of her travelling to hospital by air ambulance, but this does not give me special insight into the life of a sufferer. My task here though is to be objective and give advice on how symptoms and changes in medication are viewed by the DWP and the law. All medication has side effects and epilepsy medication may well be worse than most, but even though the process of weaning off one and then increasing the dose of the new one has to be endured, I do not see this affecting entitlement to PIP, so I would not encourage you to report this process as a ‘change of circumstances’. 

I would be delighted to hear that any sufferer was no longer experiencing seizures, and when that became clear, this would be a relevant change of circumstances because it would affect entitlement, so it should be reported to the DWP. An increase in the number of seizures experienced must be devastating, I cannot begin to Imagine, but in my view, that increase is unlikely to affect the points that they should score, and therefore their entitlement to PIP. To take an extreme example, I would recommend talking to us if someone had moved from two seizures a year to an average of one a month. For someone with epilepsy, entitlement is based on risk and the need for supervision, rather than the functional impact of a seizure or the lengthy post-ictal recovery period. If memory and/or cognition were affected, this could feature in an appeal, but a tribunal would probably stop counting after reaching 12 points for the daily living component, avoiding consideration of the impact on memory or cognition. Whether an epilepsy sufferer has a useable warning of a seizure can affect entitlement, so take advice in that situation. 

Staying with epilepsy for a moment, a vital point to leave with you is that the assessors and decision makers are not good at assessing claims based on epilepsy. They will often get the mobility award right and award the enhanced rate, but they rarely assess the daily living component correctly, so again, get advice from a reliable source before you accept an award.

Requesting a copy of the full assessment report is always a good idea, unless you have been awarded the enhanced rate of both components or you are otherwise delighted with the award. Many people believe that the reasoning in the decision letter is the report but this contains only excerpts from a report that is normally more than 20 pages in length. You will not see it unless you ask for it and it can be most revealing. It is essentially split into three areas; where they took details of your conditions and how they affect you; the section that is supposed to be the history you gave about your ability to manage the 12 activities in the PIP test, so from Preparing food to Moving around (walking), and finally, the assessor’s choice of point-scoring descriptors (the statements that have points attached to them) and their reasoning. You are likely to find examples of mistakes, misunderstandings and reasoning that you disagree with. The point is that if, for example, the assessor relied on you being on a low dose of pain relief or anti-depressant, or on there being no specialist input for a relevant condition, and that has changed, then you may feel that they could see your entitlement differently if they looked at you now. 

New diagnosis

The law says that there does not need to be a diagnosis, that the issue is how you are affected but assessors and decision makers seem to be unaware of that case law or wary of applying it. If you suspect that your difficulties were not taken seriously for that reason or that is clear from the assessment report, and you now have a diagnosis that explains why you have been suffering, then you might feel that you would be assessed differently now.

Worsening symptoms/able to do less

Someone in this situation would understandably think that a change of circumstances claim would be a good idea. It certainly can be but such problems will not always lead to more points. Take Washing and bathing as an example; suppose that you scored 2 points for needing an aid or appliance for this activity, but in addition to needing a grab rail, you now need help to wash your hair as you cannot lift your arms, if you look at the test (see the score sheet that follows this article) you will find that the need for an aid and the need for help to wash your hair are both ways to score the same 2 points for this activity. This brings us back to what is a relevant change of circumstances and to answer that, you need to know where you should score points and compare this with where you did score points.

Do you risk losing points awarded last time?

The Department certainly has the power to leave things as they are, to award additional points or to take away some or all of your points. Generally speaking, this will only happen where the evidence points that way. A mistake made time and again is where someone believes that the existing problems and points are safe and ringfenced and they just focus on what has changed. This has led to some or all of their points being lost, where it need not have happened. You are starting with a clean slate and everything needs to re-stated and explained, not just the new problem or what has got worse.

Changes in the law

Not an obvious one but this may surprise you. I cannot think of a change to the PIP test but new decisions on PIP are made by the Upper Tribunal every week and some of these can have a significant impact. You will see from the following score sheet that there are just two descriptors in the entire test which have an odd number of points attached to them but you are no better off with 6 points or 7 – still no award, you need 8 points for an award. Similarly, neither 10 or 11 points will give you the enhanced rate; you would need the other odd point, which could make a huge difference. I mention this because your existing award could have been made before the assessors and decision makers began to properly apply the Upper Tribunal decision that scores 3 points under Washing and bathing. 2 points is a common award and the wording for the descriptor that scores 3 points has not changed; it is just that Judge Rowley clarified what the wording meant and how it should be applied. It does not matter whether your home has a bath, the issue is whether you could get in and out of a standard bath (without any aids such as grab rails, bath boards, steps, etc) without assistance from another person. If this describes you, then you ought to score 3 rather than the usual 2 points. If that takes you from 7 points to 8 and an award of standard rate, or from 11 to 12, then clearly that is relevant to you. You would probably need to justify your change of circumstances claim by saying that there had been a change in how a medical condition affects you.

What if my award was just wrong

It probably was wrong. I would say that with a large majority of people, someone experienced would be able to go through the test with you and point out where additional points should have been scored. Yes, that means that a lot of people who did not get an award or who were awarded standard rate, should have had an award or a higher award. As above, you would probably need to say that your needs had increased to have a change of circumstances claim carried out. Remember though that if less than 13 months have gone by since the date on the decision letter, then you may be able to get the decision changed right back to the date of claim, not needing to do a change of circumstances claim at all.