It is certainly possible to be eligible to claim PIP (personal independence payment pip) if suffering from a mental health condition such as depression or anxiety but it very much depends on how the mental illness affects you. No two people are affected in the same way but let us look at some of the possibilities.

Activity 1 - Preparing food

If a lack of motivation is a symptom of your depression, you could certainly score 2 points for the need to be encouraged or prompted to even begin the task. You probably know that PIP is a points-based benefit and that under each of the 12 headings, including Preparing food, there are statements known as descriptors, and if the wording in the descriptor fits you then you score the points that go with it.

The descriptor in this case reads "Needs prompting to be able to either prepare or cook a simple meal." Be prepared to explain what arrangements exist to get around the problem. It may be that there is someone in your household who does provide that encouragement, or perhaps this person does the preparing of vegetables and cooking for you.

Please do not make the mistake of simply stating that you don't do it and someone else does it for you. That is not the point; what you need to get across in the claim form/appeal is why you can't do it, on at least the majority of days, and why that help is provided.

The starting point is always the wording in the descriptor so if you believe that you should score these 2 points, the Department or tribunal needs to understand why you need to be prompted. Remember also that it can be an unmet need, so that if for example, you live alone and manage by having only cold food or heating up ready meals, or perhaps heating meals that are cooked by someone else and brought to you, then the wording in the descriptor can still apply so that you can score those 2 points.

Symptoms of anxiety could also allow a claimant to score points under this heading, again it very much depends on how the individual is affected. I cannot recall a client whose need for prompting/encouragement was as a result of their anxiety but this does not mean that it can't happen. The descriptor that would score 4 points instead of those 2 is 1(e) "Needs supervision or assistance to either prepare or cook a simple meal." We are talking here about someone who could both prepare and cook a simple meal (cooking on the hob and using raw ingredients) provided that they have someone with them to provide either supervision or assistance.

It is necessary to look at the meaning of those two words to make sure that the descriptor applies to you. Both words are defined in the legislation and it is these definitions that count, not necessarily what you or I might think. "Supervision" means the continuous presence of another person for the purposes of ensuring the claimant's safety. "Assistance" means physical intervention by another person and does not include speech.

A client whose husband was killed by a knife and whose resulting fear of sharp knives meant that they could not abide to use them is perhaps an extreme example of where assistance was required, in that case with the preparation of fresh vegetables. That is at least how we saw it but the tribunal did not award the 4 points and the case is currently on its way to the Upper Tribunal. It does not seem to matter how long I do this job, clients continue to present problems that are new to me and these problems provide convincing arguments for them scoring additional points.

A claimant's anxiety might give rise to a pronounced tremor, which might require either supervision so that the task can be carried out safely, or if it meant that either the preparation or the cooking element of the task could not be carried out and there was therefore a need for assistance from another person with that part of the task.

Upper Tribunal case law confirms that you can get to a point where the claimant is able to do so little that effectively they cannot do it at all, even with someone there to supervise or assist. The descriptor that would fit in those circumstances would be 1(f) "Cannot prepare and cook food." This descriptor scores 8 points and it is sometimes surprising just how big a difference it makes to the overall score when either 4 points or 8 points are scored for this part of the test.

"Risk" can sometimes be an issue and the Upper Tribunal case of RJ shed welcome light onto that issue. Three Upper Tribunal judges sat together to decide RJ and this means that the case carries a lot of weight. They looked at previously decided cases, considering the meaning of "likely", in the context of "in such a manner that it causes or is likely to cause" (harm"). They decided that "likely" was being used in the sense of "a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm".

This is the test when considering whether there are symptoms represent a risk when carrying out any of the PIP tasks, and whether you ought to be awarded points. You may have come across phrases such as "to an acceptable standard" and "within a reasonable time period" in your research so far. These phrases come from regulation 4(2A) which says that if a task within PIP can be achieved by the claimant, you have to go on to consider whether it can be achieved safely, to an acceptable standard, as often as reasonably required and within a reasonable time period.

The judges in RJ said that the aim of regulation 4(2A) is to protect people from harm being caused by individuals undertaking daily living or mobility activities and that this aim would be frustrated if individuals were expected to carry out activities where there is a real possibility of harm but where the risk falls short of being more likely than not. They looked specifically at Preparing food and said that "a person cannot be assessed as needing supervision to prepare food unless, with supervision, they can prepare food safely, to an acceptable standard, repeatedly and within a reasonable time period and so, amongst other things, they must be able to prepare food in a manner unlikely to cause harm to the claimant or another person in accordance with regulation 4.

This means that 1(e) for "Needs supervision or assistance" descriptor that scores 4 points is not the right choice where there is a "risk" of harm even if they are supervised. Therefore, the right choice in that situation is 1(f) "Cannot prepare and cook food", scoring 8 points. To give you an idea, I have seen tribunals award those 8 points where the client has unpredictable seizures.

In my experience, assessors and decision makers are less likely to understand the limitations imposed by depression and anxiety, less likely to believe the claimant and less likely to correctly apply the law to the facts that they do find. My opinion is that a claimant with mental health problems is more likely to have to appeal to get the right outcome.

Activity 2 - Taking nutrition

" Needs supervision to be able to take nutrition" will again score 2 points, as will the need for prompting. This is another area where the assessor and decision maker are quite likely to get it wrong. There is a tendency to think that if the claimant eats anything, then the box is ticked and no points should be scored but case law from the Upper Tribunal suggests that there might be some minimal level of food value necessary to constitute "nutrition". Left to their own devices, the claimant in that case was having only soup and coffee and sometimes a sandwich. I regularly come across claimants whose diet is limited to biscuits and chocolate unless someone intervenes.

Activity 3 - Managing therapy or monitoring health condition

The need for prompting or supervision to take medication will score 1 point 3(b), and this encouragement or prompting might be needed because of a reluctance to take the medication as prescribed or perhaps because they are forgetful, sometimes as a side effect of medication, but the need for prompting could also be linked to the risk of overdose. A need for someone to monitor the claimant's health condition could exist where they are unaware that they are becoming more unwell.

Activity 4 - Washing and bathing

"Needs supervision or prompting to be able to wash bathe" will score 2 points 4(c), and this appears to be the only descriptor relevant to depression and anxiety under this heading.

Activity 5 - Managing toilet needs or incontinence

It is worth remembering that a 'need' should score equally where it is unmet as when that need is met by another person. 5(c) "Needs supervision or prompting to be able to manage toilet needs" will score 2 points. Remember also that the phrase "to an acceptable standard" can be relevant to this part of the test. I have had just one client so far whose depression was such that they could not be bothered to clean themselves properly after using the toilet. They would not accept help from another person but they could not clean themselves to an acceptable standard either so that there was an unmet need for assistance. "Needs assistance to be able to manage toilet needs" scores 4 points.

Activity 6 - Dressing and undressing

6(c) "Needs prompting to be able to dress, undress or determine circumstances for remaining clothed" scores 2 points, as does the need for "prompting to be able to select appropriate clothing". The person may lack the motivation to get dressed or to change their clothes. For some people the problem is with getting undressed at the end of the day, needing someone's intervention to avoid them going to bed still dressed.

It probably will not come up to often but there is Upper Tribunal case law that says that where a claimant's medical condition causes them to hesitate and prolong the process of dressing, even where she was able to make a decision eventually, they should score points because they could not achieve the task "within a reasonable time period". The judge confirmed that hesitation in choosing clothes, even on the basis of the appearance presented, could be a reason to score points under Activity 6. That phrase "reasonable time period" is defined as no more than twice the time that someone else would take.

Activity 7 - Communicating verbally

The relationship between Activity 7 (communicating verbally) and Activity 9 (Engaging with other people face-to-face) has been looked at by the Upper Tribunal. Judge Hemingway accepted that anxiety caused by mental health difficulties can potentially lead to the scoring of points under Activity 7 so that the activity and its descriptors are not simply concerned with physical or sensory impairments to communication.

He said that if a claimant has difficulty in speaking as a result of anxiety, or perhaps some other mental health problem, the next question is what it is that causes that difficulty. Is it a fear of social engagement? Or is it something simply connected to the activity of communicating verbally? He said that it could be both but equally, it could be one or the other.

A claimant who is not able to communicate with strangers or those who are not well-known to them or where they are not able to communicate verbally when in the company of a large number of people, but where they are able to express themselves verbally when it is with someone who is familiar to them, the claimant is likely to score points under Activity 9 but not under Activity 7. Judge Hemingway went on to say that the claimant was so anxious that, not only were they impaired when it came to engaging with others but also impaired with respect to the function of communicating verbally, he might score in the both activities. The judge though this a most unlikely eventuality.

Activity 8 - Reading and understanding signs, symbols and words

The Upper Tribunal has decided that illiteracy is not relevant to this Activity unless it can be shown to derive from the claimant's mental or physical condition. Cases that have been brought where the illiteracy was from a failure to learn to read rather than any demonstrated relevant medical condition have therefore failed.

Activity 9 - Engaging with other people face-to-face

I come across many cases where the assessor and decision maker having incorrectly assessed claimants in this area. Things seems to go wrong for two reasons; firstly, they are often unwilling to believe claimants and secondly, they get the law wrong.

Assessors are used to assessing credibility when it comes to physical movement, commenting on whether, for example, they find someone's walking speed or a claimed limitation in the range of movement of a joint, or expressions of pain, but they seem to be unwilling to ask relevant questions and test the answers people give to allow them to assess whether the claimant is able to carry out the 3 parts of "engaging socially", to interact in a contextually and socially appropriate manner, to understand body language and to establish relationships.

I raised this concern at a forum where advisers and representatives were able to meet, albeit virtually, with the company that employs and trains assessors.

To their credit, the company recognised the problem and said that they are trying to address it. Hopefully I will live long enough to see these efforts bear fruit. The second problem is probably linked to the first since assessors almost always look at the wrong evidence when making their assessment. Case law tells us that "engage socially" means to interact with people in an appropriate manner and will require the claimant to understand body language and to be able to establish relationships.

When justifying their choice of descriptor under this heading, assessors routinely rely on how the claimant engaged with them and they will often comment on the contact the claimant has with family or with doctors or people in shops but this is not social engagement. Judge Rowley said in SF v SSWP that evidence that the claimant engaged effectively with the assessor, or that they could attend for hospital appointments, or take part in work-related group sessions does not meet the point.

9(b) "Needs prompting to be able to engage with other people" will score 2 points. 9(c) "Needs social support to be able to engage with other people" will score 4 points instead. The Supreme Court (the highest court in the UK) looked at this part of the PIP test in July 2019. The Court held that "prompting" could amount to social support, bearing in mind that the claimant has to need support from someone who is not just familiar, but who is experienced in assisting engagement in social situations.

They said that what brings the prompting within descriptor 9(c) is 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. They stressed the need to pay close attention to the words of the descriptor, the requirement for the claimant to need the social support. It can come down to looking at who has been encouraging the claimant to engage socially, mix with other people and make new friends, as well as looking at how effective those efforts have been.

Where friends and family have had little or no success, I have found tribunals ready to award 4 points, applying the Supreme Court decision in SSWP v MM. For a more extreme case, 9(d) "Cannot engage with other people due to such engagement causing either overwhelming psychological distress to the claimant; or the claimant to exhibit behaviour which would result in a substantial risk of harm to the claimant or another person" will score 8 points.

Activity 10 - Making budgeting decisions

Some explanation is required here. 10(b) "Needs prompting or assistance to be able to make complex budgeting decisions" will score 2 points. "Prompting" is defined as including explaining by another person, but in terms of depression and anxiety, clients I have seen have scored because they either lacked the motivation necessary to make these budgeting decisions, or the whole subject made them too anxious to approach the task. We also need to consider the meaning of "complex budgeting decisions" and this is defined as involving calculating household and personal budgets, managing and paying bills and planning future purchases.

As ever, the issue is not whether the claimant does this but why they would be unable to do it. Do not focus on who does it but think instead about when it started, why someone took over and what was going wrong before they took on the role. 10(c) "Needs prompting or assistance to be able to make simple budgeting decisions" would score 4 points but I cannot remember a client suffering from anxiety or depression scoring those 4 points since "simple budgeting decisions" is defined as involving calculating the cost of goods and calculating change required after buying something.

Activity 11 - Planning and following journeys

This is the first of the two mobility activities and since the second, Moving around, deals purely with the physical side of walking, it is unlikely to be relevant to someone suffering with depression or anxiety (see below). This is a complicated part of the test and partly because of those complications, the Department regularly gets it wrong. The standard law book for this area of law is called Social Security Legislation 2019/20, Volume 1 and it is issued to all tribunal members. It has over 1800 pages and 4 of them are devoted to Planning and following journeys.

As with all of these articles, what follows can be no more than a summary but I hope that it will prove helpful. 11(b) "Needs prompting to be able to undertake any journey to avoid overwhelming psychological distress to the claimant" scores 4 points, which is not enough for any award of the mobility component. I regularly see it wrongly selected by assessors and decision makers.

The important piece of case law is MH and this was another one decided by a panel of 3 Upper Tribunal judges. They said that this descriptor is appropriate where the claimant requires prompting to avoid overwhelming psychological distress before being able to embark on a journey. That phrase "overwhelming psychological distress" is clearly important; it is necessary to consider whether the claimant can embark on a journey/leave their home without being overwhelmed, unless prompted. Descriptor 11(c) reads "Cannot plan the route of a journey" and in terms of depression and anxiety, you would think that the most likely way to score these 8 points would be someone who lacks the motivation to carry out the task, but I cannot remember having success with this argument.

Bear in mind that planning the route of a journey could include reading a map, putting an address or post code into a satnav device, including a smart phone, or it could include planning a journey using train or bus timetables. Remember that this has nothing to do with their ability to actually make the journey; they could be planning a journey for someone else to take.

Descriptor 11(d) "Cannot follow the route of an unfamiliar journey without another person, assistance dog or orientation aid" scores 10 points and therefore gives an award of standard rate mobility. The case MH was decided in November 2016 and until then, anxiety was not thought capable of scoring these 10 points or the 12 points that go with 11(f) "Cannot follow the route of a familiar journey without another person, an assistance dog or an orientation aid". You will appreciate that 12 points would give someone enhanced rate mobility.

The judges in MH said that "only if the claimant is suffering from overwhelming psychological distress will anxiety be a cause of them being unable to follow the route of a journey". They said that the threshold is a very high one and commented on earlier Upper Tribunal cases saying that where those claimants were "anxious", "worried" and "emotional", this was not sufficient for those claimants to satisfy the terms of these two descriptors because they could in fact complete journeys unaccompanied without being overwhelmed. You can imagine that the Department tends to focus on the words "the threshold is a very high one". The word "overwhelming" is not defined in regulations or in MH. English law says that where a word is not defined, it takes its natural meaning.

"Overwhelming" is defined in the Oxford Dictionary of English as meaning 1) very great in amount and 2) (especially of an emotion) very strong. Look at whether the claimant's symptoms of anxiety are on a par with worried, anxious and emotional or whether their symptoms are much stronger than that. If so, then argue that the dictionary definition is met and that the person is indeed experiencing "overwhelming psychological distress" when following the route of a journey, unless they are accompanied by another person.

I frequently see assessors justify not awarding the 10 or 12 points for these descriptors saying that they saw no evidence of overwhelming psychological distress during the assessment. I point out to tribunals in my written submission that the claimant was not following the route of any journey when this observation was made. It is not necessary to think about the role of the accompanying person since case law says that they can be entirely passive, they do not need to be reassuring or distracting, for example. The only descriptor that we have not looked at is 11(e) "Cannot undertake any journey because it would cause overwhelming psychological distress the claimant" which scores 10 points.

Activity 12 - Moving around

I have not come across client suffering with either anxiety or depression who should score points under this heading. The law does recognise that someone with a psychosomatic condition, such that they believe that they are unable to walk, can qualify even though there was no physical reason that prevented them from doing so. The sole question was whether the belief, or the pain they experienced was real to them.

I have had people say to me that PIP is biased towards people with physical limitations. For the reasons set out above, I do not accept that view.

The steps involved in making a claim

• Get hold of a claim form
• Complete the form and send it in
• The assessment stage
• Receiving the decision on your claim

All being well, the decision is right and you have the award you should have. That does not always happen. Just on the off chance that you are not happy with the decision, you need to know that the following steps could be involved.

• Ask that your claim is looked again – a Mandatory Reconsideration
• Appeal to an independent tribunal if you are still unhappy
• Challenge the tribunal’s decision if you believe that they got it wrong

Let us break that down – getting hold of the claim form

The number to call depends on where you are; call 0800-012-1573 if you are in Northern Island but 0800-917-2222 anywhere else in the UK. Have your GP’s name, address and phone number in front of you as well as your bank details and National Insurance number. You will be asked if you have arranged for help in making your claim, so if you are going to have help, have their name, address and number with you. There is no doubt in my mind that you will are more likely to get the right award if you work with someone experienced and knowledgeable. Think how you will know what the right award is without having that help.

You can deal with this first stage using a textphone by calling 0800-012-1574, and if you cannot start the claim by phone, you also have the option of providing the required information in a short form, which you can request by writing to:

Personal Independence Payment New Claims, Post Handling Site B, Wolverhampton WV99 1AH

Completing the claim form

Essentially, get help – good quality help, so use the days before the form arrives to find that help. The form asks for details of health professionals who know how you are affected; remember that this is the key, how you are affected, not what is wrong with you. They include people such as occupational therapists, physiotherapists, social workers, community psychiatric nurses, counsellors and support workers. Remember though that they are unlikely to approach any of these as they prefer to rely on their own assessment of you. Do not rely on them asking for anyone else’s opinion of you, reports or GP notes. If you have any letters or reports that give information about how you are affected by your conditions, then take advice from the person helping you with the claim on whether they should be sent or not. Things like appointment letters say nothing about how you are affected, so there is no point in sending them. Two people with the same medical condition could be affected in quite different ways, which is why they ask that you do not send general information about your condition. I sometimes ask myself why a client has sent in some medical letters when I am brough in to help with an appeal. You could say that the Department should see everything, warts and all, but the fact is that some clients send in material that undermines their case because they could not see that. Take advice from whoever is helping you. If you have no choice but to do this alone, then read everything twice before you decide to send it in; once to make sure that it is relevant, so it tells the reader something about how you are affected by your condition and a second time from the Department’s point of view, looking for something that a negative thinker could latch onto as a reason not to believe what you have said in your form, a reason not to award points. Having said that, I cannot see why anyone would opt to do this without help; there is good quality help available without charge, and if the wait for that free help is too long, or you cannot get to them, then help is available on the basis that you pay affordable instalments until the claim is successful and you receive your arrears dating back to when you made the first call to PIP.

You need to know where you ought to score points; this is the only way for you to know what the assessor and Decision Maker need to understand if they are going to award those points. If the person you approach for help is not going to give you advice on which points ought to be awarded, walk away as this suggests that they do not know enough to help you. You can find useful information in my articles, PIP Descriptors. The form will have a date by which you should return it. If you can see that you are going to need more time, call them on 0800-121-4433 to ask for an extension. You can expect to be asked why you need more time so have an answer. Reasonable requests are usually allowed.

Sending it in

Send only copies of that supporting evidence, and put your name and National Insurance number at the top of each page, then send the whole thing off ‘signed for’, keeping a note of the Royal Mail tracking reference. Make sure that the Post Office reduce the cost of posting by the value of the pre-paid postage on the envelope that came with the form. 

The assessment stage

Ordinarily, I would suggest that you will almost certainly have a face-to-face assessment somewhere between 3 and 10 weeks after sending in the completed form. The assessor is unlikely to have any prior knowledge of your condition and while most assessors are qualified nurses, that title can cover a huge range of knowledge and experience. You could instead be assessed by a physiotherapist, a paramedic or an occupational therapist. For some claimants, that could be a good fit, but you can understand the concern of someone whose problems are partly or entirely based on mental health or autism, for example, when the assessor introduces themselves as physiotherapist. I do not recommend that you express that concern in the assessment as clients who have come to me to have problems sorted out have described obvious resentment on the part of the assessor when their ability to do the job is questioned. The Department would probably reassure you that the assessor is not there to examine or to diagnose or treat you, but simply to assess the impact of the person’s conditions, looking at the activities set out in PIP test, and that the assessor was a trained disability analyst. All of that is true, but I have seen enough reports that the system can be pretty broken. There are undoubtedly good and highly competent people out there doing assessments, but equally, there are assessors that should not be doing the job. It is a lottery and all that you and I can do is to prepare you for the assessment. Hopefully the person who is helping you with your claim includes that preparation as part of their service. If not, then I recommend that you read my article, Questions asked at PIP assessments. You might have to wait 2 to 10 weeks before you hear back from them.

The decision

You should have either your own list of which points you ought to be awarded, or the written advice of whoever helped you. Compare that with the points set out in the decision letter. If you have the award you set out to achieve, then very well done. Go back and have a look at the first couple of paragraphs and see how long your award is to run. A lot of awards are for three years, but awards of 4, 5 and 10 years are made. If it says that you have your award ‘for an ongoing period’, this means that there is no end date and you are likely to be left alone for around 10 years before they approach you to see if anything has changed. When deciding on the length of the award, the issue is whether they expect your symptoms/abilities to change, either way, and if so, within what time frame. You can expect them to invite you to make a renewal claim 3 to 6 months before any end date.

The wrong decision – mandatory reconsideration

If you are not happy with the decision, call them on 0800-121-4433 to request a copy of the assessment report; what you have in the decision letter are excerpts from a report of 28-30 pages. You will know much more about where things have gone wrong after looking carefully at the full report. 

My advice to someone at this stage in the process depends on what points they have scored. Where someone has scored no or very few points, I do not recommend putting effort or resources into a reconsideration. Even working together, the chances of getting from where they are, to where they should be would be remote. Better for that person to go through the motions and ask for the Department to look at the claim again. You might point out where the assessor’s thinking was wrong and you can supply additional information and evidence, but please do not say that the assessor has lied, no matter what the provocation. The assessor presumably has nothing to gain by lying on your report, so if it comes down to who to believe, then you are likely to come off second best as you do have something to gain from the claim process. Better I think to suggest that the assessor has misunderstood what you said or meant, or the report is mistaken. Look for examples of things that are just factually incorrect, not matters of opinion. Turn to the back page of the report and see if there is a gap between when the assessment was carried out and when the report was finished. Many are done on the same day but I have seen gaps of up to 14 days, which you could put forward as a possible reason for the assessor having got things wrong. 

Not far from the points you should have

If you are not too far from having the points you ought to have, then by all means put effort and resources into the reconsideration. It is worth trying to avoid the delay, stress and (potentially) expense of a tribunal appeal. You can do what I would do, I begin by going through the PIP test to see where additional points should have been scored, why you should have scored them and how strong a claim you have for those points, so what it is we are trying to prove. I would talk to you about possible sources of evidence to support that view, so medical evidence and witness statements from people who know for themselves how you are affected. I would look at the evidence you have but would gather more. Get hold of GP notes for say the last 18 to 24 months. See above for how you should assess that evidence before you send it in. Set out your reconsideration request in a letter, better I think than the form provided by the Department. Try not to focus on rubbishing the assessment report. I don’t think that you can succeed by just doing that. Instead, explain why you should have scored the points you are asking for under the different heading, Preparing food, etc. Explain why the evidence supports that and where you can, explain where the assessor went wrong. They may have based their opinion on a misunderstanding about your medication or specialist support. Perhaps they point to you being able to carry out some movement in the Musculoskeletal section that you say has been wrongly recorded, or which you could only manage with a great deal of pain, or you were not in fact asked to do. You have a month from the date on the decision letter in which to lodge your reconsideration request. If you can see that you will need more time, call them on 0800-121-4433 to ask for more time. You can expect to be asked why you need this, so have an answer in mind. A reasonable request is very likely to be accepted. Expect a decision on your reconsideration somewhere between a few and several weeks.

Appeal to a tribunal

You do not have the option of an appeal until you have been though the reconsideration process. You will need the date of the mandatory reconsideration notice when putting in your appeal, either online or using a paper form SSCS1, which you can find online. Your appeal needs to be with them within one month of the date on the mandatory reconsideration notice. There is a section on the appeal form for you to explain why you are putting it in late. Your appeal will still be passed by the tribunal office to the DWP, who have the option to object, but I have never seen them raise an objection with a reasonable reason given. The law allows an additional 12 months, so 13 months in all to what is called the ‘absolute time limit’. There is case law that allows even that absolute time limit to be breached, but only in the most exceptional of circumstances. Get experienced advice if you are in this position. Please see my article The PIP Appeal Process for all you need to know about doing an appeal. The time from putting in an appeal to having a hearing varies around the country but think in terms of 6 to 12 months.

Challenging the tribunal’s decision

Hopefully the tribunal will have found in your favour, but if not, then this need not be the end of the line. You should take a cold hard look at why your appeal was refused, and you might need help to be this objective. Maybe the tribunal was right and you are not entitled to any award or to more than the Department awarded. It is also possible that even though you should have had more, the tribunal were entitled to reach the decision they did because something you said to them undermined your case, or because they saw some piece of evidence that was wrong but again, it undermined your case and they chose to believe that rather than what you said. You can only challenge a tribunal’s decision on a point of law, not just because you think that they got it wrong, and not because you now have a powerful piece of evidence or a new diagnosis. You would begin by asking the tribunal office for two documents, a statement of the tribunal’s reasons for their decision, and a copy of the judge’s record of proceedings. This is the note of the evidence that was taken at the hearing. Your request for the statement of reasons must be made within one month of when the tribunal’s decision was handed to you/sent out to you. 

The alternative to trying to challenge the tribunal’s decision is to begin a new claim, but making a better job of it this time. I would recommend that you get help, especially if you did it on your own last time. You can do both of these; you can begin a new claim that will be based on how you/what you can do now, and at the same time pursue the arrears back to the date of the first claim. Remember though that if an award is made on the new claim, a new tribunal that re-hears your appeal would be limited to making an award from the date of claim to the date of the award on the new claim.

You will need to identify one or more errors of law in the statement of reason, on which to base an application for permission to appeal to the Upper Tribunal. This application needs to be made within one month of the letter that came with the statement of reasons. That process is outside the scope of this article. If I have not written that article when you look, please contact me.

DLA and Carers Allowance

Confusion sometimes arises because of the names of benefits, especially when we have the care component of disability living allowance (DLA) and carers allowance. There are still plenty of adults who have yet to be moved from DLA to personal independence payment (PIP), and there are two other groups of claimants who won’t be moved onto PIP as part of this ‘migration’. One of these groups is made up of those who are currently on DLA and were aged at least 65 on 8 April 2013. They cannot choose to claim PIP instead, even where this would be to their advantage. The other group are those DLA claimants who are under age 16; their DLA will come to an end at their 16th birthday and they will be invited to claim PIP instead. 

The only link between the care component of DLA and carers allowance, apart from the common use of the word ‘care’, is that the person with the disability benefit claim has to be on at least DLA middle rate care component before there is the option of someone claiming carers allowance for looking after them, so lowest rate care component is not a qualifying benefit for this purpose, and nor is even DLA Higher rate mobility component.

PIP and carers allowance

We still have a mobility component with PIP but the care component has been renamed the daily living component. There are just two rates of the daily living component, standard and enhanced; there is no equivalent of DLA lowest rate care component. Either rate of PIP daily living component is a qualifying benefit for carers allowance, allowing a claim to be made by the person providing care, but again, neither rate of the PIP mobility component will allow a claim to be made for carers allowance.

Someone receiving carers allowance does not affect the PIP that the person with the disability receives; you do not have to tell PIP that someone is going to claim carers allowance, or that such a claim has ended. It is important to make clear that if the person with the disability loses their award of PIP daily living component, this does affect entitlement to carers allowance. We have been calling that award of PIP the ‘qualifying benefit’ and if this ends, for any reason, then the person who has been getting carers allowance needs to tell their paying office of this change of circumstances because they no longer qualify for carers allowance. It does not matter if that PIP award ends because the disabled person has been in hospital for over 28 days, or if they have left the UK for too long, or if the decision to end the daily living component is being challenged or appealed to a tribunal. If there is no qualifying benefit in payment, there can be no entitlement to carers allowance. The carer is going to have a recoverable overpayment if the carers allowance office is not told promptly. If the DWP decide that the carer deliberately failed to disclose the ‘material fact’ of the qualifying benefit coming to an end, the risk is that criminal charges could be brought for benefit fraud, as well as the civil matter of the benefit overpayment. 

Choices to be made

This aside, you sometimes have to think whether it makes sense for anyone to make a carers allowance claim. This depends on what other benefits the disabled person is receiving. If they also receive income support, income-based jobseekers allowance (JSA) or income-related employment support allowance (ESA), then if anyone receives carers allowance, the disabled person will not be entitled to a severe disability premium (SDP). As this article is being written, the weekly rate of carers allowance is £66.15. A decision might be made that the carer should claim carers allowance, even though it will prevent the disabled person receiving £65.85 as an SDP. 

Other factors to consider

Things can get complicated and it would be sensible to explore the impact of the carer claiming carers allowance. There can be some interesting twists to consider. For example, if the disabled person gets an SDP as part of their other benefit, along with their PIP, just having that premium can protect them from being moved onto Universal Credit. Not too many people are better off on UC and once the move to that benefit has been made, there is no way back to the old benefit. There is no equivalent of the SDP with Universal Credit, so some people will lose out considerably. There are different ways to move onto UC; ‘natural’ and ‘managed’ migration, but the differences are outside the scope of this article. Depending on how a person is moved onto UC, there can be ‘transitional protection’ allowing them to keep the value of their SDP. Another factor that does arise is that carers allowance is classed as an ‘income replacement benefit’ and you can only receive one of these at a time. Another income replacement benefit is the state retirement pension. Where both are claimed, only the higher value income replacement benefit is paid, usually the state retirement pension. The person remains entitled to carers allowance but it cannot be paid. This can be important because the deciding factor is whether someone receives carers allowance, so a carer who gets retirement pension would remain entitled to carers allowance, even though it could not be paid. That entitlement is enough to trigger a carer element into the calculation of their pension credit, worth £36.85 a week. The disabled person would also keep their severe disability premium in this example.

I mention these examples to show that it would be worth exploring the options before you decide that someone is going to claim carers allowance. You must do what you think best, but go into it having done your homework.