Enhanced PIP Benefits
What is the enhanced rate?
You may have been awarded the standard rate of the daily living and/or mobility components of personal independence payment (PIP) and be wondering whether you should have qualified for the enhanced rate instead. You need to bear in mind that PIP is a points-based benefit and that to qualify for the enhanced rate of either part/component, you would need to score 12 or more points for that component.
I had an indefinite award of higher rate DLA mobility, so don’t I qualify?
My theory is that many people who were ‘invited’ to claim PIP when told that their award of DLA was to end made the mistake of thinking that the move to PIP would be a formality. They did not take advice on their entitlement or the differences between the two benefits and did not tell the DWP all that they needed to know. They approached the assessment in the same way and various sources put the number of people who lost their Motability cars after moving to PIP at over 100,000. That number does not include those who lost their top rate of mobility award but had chosen not to use the Motability Scheme.
The Government effectively raised the bar for getting the top rate of mobility when designing PIP, but it is not all bad news. Someone who was limited to less than 50 metres (half the length of a full-size football or rugby pitch/ the length of 5 full-size buses nose to tail) could expect to qualify for DLA higher rate mobility. DLA was interested in how far you could walk before you were in ‘severe discomfort’ to determine whether you were ‘virtually unable to walk’. To qualify for enhanced rate PIP mobility, based purely on physical problems, a claimant would need to be limited to less than 20 metres, so less than 2 bus lengths. An assessment that they can manage somewhere in the range 20 to 50 metres would score them 10 points, giving them standard rate.
What are they assessing for walking ability?
I consider that there are two answers to this. The law is the law, right? Yes, but … The assessor, decision maker and the tribunal should all be applying the same law and doing it in the same way but that is not what I find in practice. When helping a client with a claim, I nearly always have to advise them what I would expect them to get from the assessor/decision maker, and separately, what I believe a tribunal would award them, on the same facts. One reason for the difference is how one part of the law is applied; regulation 4(2A). If a claimant simply cannot do the task – Prepare a meal, dress, walk 20 metres, etc, then that is straightforward, but that regulation says that if they can do it (walk 20 metres in this case) then four more questions must be asked:
- Can it be done safely
- Can it be done ‘repeatedly’ (defined as meaning ‘as often as reasonably required’.
- Can it be done ‘to an acceptable standard’
- Can it be done ‘within a reasonable time period’ (defined as no more than twice the maximum time that a person without limitations would normally take).
You can see the relevance of some of these when assessing walking ability. The problem is that I have never seen an assessor or decision maker properly apply regulation 4(2A). Let us suppose that there are people out there who do apply it correctly but I would not come across their work as those claimants are more likely to be content with their award. I see assessors pay lip service to the above regulation, using phrases such as, “Therefore she would be able to mobilise 20 metres but no more than 50 metres repeatedly and reliably with the use of aids.” (Taken from Carol’s assessment report but where the tribunal awarded her 12 points for 1-20 metres in July 2020). Why do I go on about what assessors think? If you have ever seen a full assessment report (a form PA4), you will have seen that the second half of the report is where they choose a descriptor for each of the 12 activities that make up the PIP test; the point score depends entirely on the choice of descriptor and, from what I see, in only a very small proportion of claims does a decision maker choose different descriptors/points. I see it largely as a rubber stamping of the assessor’s choice, so that in the vast majority of the cases that come my way, the assessor effectively decides what award the claimant will have.
Let us look at how regulation 4(2A) should be taken into account. ‘Repeatedly’ can be quite important in a couple of ways. I do not see at as meaning whether a person can immediately turn around and walk another 20 metres and have not see a tribunal apply it in that way. Many claimants explain that they are unable to manage any walking a second time that day because of the after effects of either pain or fatigue and that must surely come within a reasonable consideration of ‘repeatedly’, but I have never seen an assessor or decision maker consider such evidence Even if they went on to explain why they were not persuaded, at least to show that they had understood the law and were applying it would be something. A claimant could produce additional evidence on that point at the reconsideration stage.
Some claimants experience considerable variations within days in their ability to manage tasks (walk 20 metres, bathe/shower, dress, etc). This variation could be because they have to wait for pain relief to kick-in or while they wait for morning stiffness to ware off or during the period following a seizure. There are two Upper Tribunal cases on this and they are discussed in the law book that is issued to all tribunal members. Search online for Judge Hemingway’s decisions in CE v SSWP (PIP)  UKUT 643 (AAC) and his decision in TR v SSWP (PIP)  UKUT 626 (AAC). Look in particular at paragraphs 35 to 37 in CE and paragraph 32 of TR. The point that Judge Hemingway made was that it is not reasonable to say that a claimant can carry out that task if there are periods, that are not momentary or insignificant, that occur on most days, when they cannot do what they might reasonably want to. See ‘as often as reasonably required’ in the bullet point above. The Judge noted that this view was supported by what the Government said in its response to the proposed PIP legislation, and by the PIP Assessment Guide provided to assessors by the DWP. Yes, they are told to apply this principle, but I have never seen it happen.
To an acceptable standard
Something else included in the PIP Assessment Guide is the instruction to consider the impact of carrying out the task. Assessors are directed to consider ‘what the effects of reaching the outcome has on the individual and whether the individual can repeat the activity within a reasonable period of time and to the same standard, adding that this includes consideration of symptoms such as pain, discomfort, breathlessness, fatigue and anxiety’. This wording taken from the 2016 PIP Assessment Guide appears at paragraph 12 of the decision by Upper Tribunal Judge K Markus QC in PS v SSWP  UKUT 0326 (AAC), also known as CPIP/665/2016. The Judge quotes from another decision and set aside a tribunal’s decision because it failed to consider matters such as pain and its severity, including the extent of any rests required by the claimant, since these are relevant to the question of whether a claimant can complete a mobility descriptor ‘to an acceptable standard’.
Within a reasonable time period
I regularly see assessors describe a claimant’s walking as ‘slow’ or even ‘very slow’ but I have never seen any comparison made with the pace of someone without limitations. In none of the reports that have crossed my desk have they made an attempt to apply that part of regulation 4(2A) or give an opinion that would allow a decision maker to apply it either. Poor.
Before leaving mobility, I would encourage anyone who believes that they ought to qualify for the enhanced rate to apply for a disabled parking badge. Many people believe that you need to have the award before you can apply but this is not always the case. The criteria seem to vary between local authorities but most will issue a ‘Blue badge’ if they are satisfied that the person has a permanent and significant restriction in their walking. ‘Permanent’ is presumably to exclude something such as a broken leg. You can often apply online so look at your local authority’s website. Otherwise, ask the switchboard to put you through to that department. Assessors and tribunals will often ask if you have one and will see it as a mark against you if the answer is no.
My reason for not writing here about Planning & following journeys is that I think that there will be relatively few claims where a claimant alone is going to add points under this heading, whether at the claim, reconsideration or tribunal appeal stages. I do not consider the DWP to be good at accurately assessing these needs and I recommend that you get experienced help if you think that you should score here. I do not think that there are straightforward strategies that I can put forward that are likely to help you to make a difference.
The ‘usual suspects’
When a client explains that they have been awarded the standard rate of the daily living component, the strong likelihood is that they have been awarded 8 points as follow:
- Preparing food 2
- Washing and bathing 2
- Managing toilet needs 2
- Dressing and undressing 2
It is also very likely that they have all been awarded for needing ‘an aid or appliance’. The question is how do you get from such a score to the 12 points needed for the enhanced rate? I do of course come across people who do not have a claim for additional points and I explain that, but a lot of clients do have a claim for them. The starting point is always to look at the descriptors in the test to see where you should have scored those points. You will see that under Preparing food, you would need to satisfy the DWP/tribunal that you need help from someone, whether to supervise or assist or to do the whole task for you. In my experience, you will do well to get 4 points from a decision maker; you are much more likely to get those 2 additional points from a tribunal, where there is a better understanding of the law and where you are more likely to be believed. I have only ever seen the 8 points awarded by a tribunal, usually to a client suffering with ‘uncontrolled epilepsy’ (ie, they have seizures).
I do not find assessors/decision makers very willing to award the 2 points within Taking nutrition for the need for either food to be cut up for the claimant or for the claimant to need ‘an aid or appliance’ such as adapted cutlery. If you believe that you should have those points, bear in mind that an inability limited to cutting meat is not enough. Talk to your physiotherapist or GP about whether the problem you have with your hands would warrant adapted cutlery – they might say or write something helpful. It often makes sense to have an occupational therapy assessment but most clients do not think of the option. An OT can suggest aids or appliances that could make everyday life easier or restore some independence. Their assessment can also be useful as independent evidence of your needs and limitations. You may be able to add your name to the waiting list for an assessment on your local authority’s website but if not, call them as you do not need to be referred.
There are only two parts of the test where an odd number of points can be scored. Scoring 1 point for Managing treatment will get you nowhere unless you also qualify for 3 points for Washing & bathing so that you need both to progress towards your target of 12 points and the enhanced rate. That single point for descriptor 3(b) is not easily awarded though. The most common reasons clients have for claiming it are the need to use something to make sure that medication is taken properly, such as a Dosette box, a phone alarm to remind you or something like a ‘Pill Bob’ to help you get tablets out of their blister packs. I emphasise ‘need’ because that is what you have to show; it is not enough to have the aid or state that someone does this for you. It can be helpful if your GP is aware of your difficulty. Where the problem is a poor memory, assessors and tribunals often ask if you have been referred to a memory clinic and take a negative view if not. Managing with the use of an aid such as a Pill Bob might make it easier to persuade an assessor/decision maker/tribunal that such a need exists.
To score more than the ‘basic’ 2 points for Washing & bathing is usually only possible if you can show a need for assistance to get into or out of a bath (3 points) or assistance to wash part of the body between the shoulders and waist. That wording is important as showing a need for help to wash hair is only another way to score the 2 points that you already have, as you will see if you take my advice and look at the precise wording of the test. To be fair, I find that assessors and decision makers are in general quite willing to award the 3 points for descriptor 4(e). Explain which part of the task you cannot manage or need help with – getting over the side, lowering yourself into the bath or getting back up to your feet. It does not matter if your home does not have a bath, the issue is whether you would need such help. For the same reason, it does not matter if there is no one to provide that assistance; as the claim form makes clear, they want to know about help that you get and help that you need but do not get – the descriptor wording is key and it says needs. The Government would have used the words Has assistance…. or Uses an aid…. if that is what they had meant. I have not seen points awarded for an inability to wash your back but if something like a limited range of movement in one or both shoulders prevents you from reaching across your body to wash the other upper arm or shoulder, then you could be awarded those 4 points instead of the basic 2 points. Can you wash your right upper arm with your right arm?
It is not, in my opinion, easy to score more than 2 points for Dressing & undressing. It will usually be fairly obvious when someone “Cannot dress or undress at all”, scoring 8 points. The only other score above the basic 2 points is “Needs assistance to be able to dress or undress their upper body”, for which 4 points are awarded. You will have fair idea of whether this wording applies to you. If you scored no points for this part of the test, consider whether you need help or an aid with clothes such as socks. It does not matter that you have given up wearing socks because of your symptoms – it is about need.
Activity 7, Communicating verbally, looks mainly at whether you can speak and hear. I see forms where claimants describe not wanting to speak to people or problems with word-finding, perhaps because of ‘brain fog’, but these are not what the test is looking for. The bar is set low and if you are capable of getting across that there is a fire and that the fire exit is over there, then you are unlikely to score.
Reading and understanding what you have read, covered by Activity 8 also gets misunderstood. Needing reading glasses will not score, nor will needing a magnifier to read very small print. Having dyslexia can be relevant, depending on how bad it is. One descriptor refers to ‘complex written information’, which does not mean something like an insurance policy or the terms and conditions sent by your bank. That phrase is defined as something that would need two sentences or one long sentence to convey. Remember too that the wording is Reading and understanding; there is no mention of retaining what has been read. Case law makes it clear that an inability to read will only be relevant to the test if the person could not have learned to read, perhaps because of problems with thinking, not because they did not learn for some reason.
I do not find that assessors or decision makers will readily award points for Engaging with others face to face, partly because of what I see as a lack of understanding of what the law requires them to consider, but also because of a reluctance to believe claimants. To score 2 points for “Needs prompting to be able to engage with other people” is good going at the claim or reconsideration stages. An assessor (or even a tribunal) might ask whether you could ask in a shop where something could be found, or whether you would respond if a neighbour said Hello, or how you would react if someone in a waiting room spoke to you. They will often comment on how you engaged with the assessor, even though the Upper Tribunal have specifically said that this is not relevant. The issue is your ability to engage socially, defined as interacting in an appropriate manner, contextually and socially, to be able to understand body language and to be able to establish relationships. You are up against this misunderstanding about what is relevant, but even if you should score these points and explain why your mental health condition has led to you becoming isolated from others, the chances are that you will not be believed. Consider what evidence you might use to support what you say. Is there mention of the problem in your GP notes, preferably from before you put in your claim? Would family, neighbours, former friends or work colleagues provide a statement that included this information? I once took a statement from the owner of the client’s local shop to help make this and other points.
This brings us to the last daily living component Activity, Making budgeting decisions. I think of this as another fairly uphill struggle, whether trying to persuade an assessor, a decision maker or a tribunal. The wording is important, remember that someone will score if they have difficulty in making decisions about money so it is not about the practical tasks involved. Someone who is visually impaired and who might need support with those practical tasks need not score if their thinking ability is unaffected. Look at the descriptor wording; it refers to “complex budgeting decisions” and “simple budgeting decisions”. The first is defined as managing and paying bills, budgeting and planning future purchases. It is not about understanding complex terms and conditions in a banking or insurance document and it is not about an inability to use a price comparison website. Someone is likely to score these 2 points because they have a problem with thinking or if depression prevents them from getting to grips with such decisions. The main reason for the points not being awarded seems to be a reluctance to believe the claimant, coupled with an inability on the part of the claimant to satisfy them that there is a genuine problem. See above for suggestions of ways around the second problem. ‘Simple budgeting decisions’ (where 4 points are available) are about calculating the cost of goods and the change they should receive. My personal view is that the questions that have been asked by assessors, and which I have heard asked by tribunals can be too simple, such as how much change from £5 when the goods cost £3.50. This leaves out the calculating the cost of goods element. It may be a question of interpretation but personally, I think a better approach might be to add the cost of say, a sandwich and a drink, and how much change they would expect. The Upper Tribunal has confirmed that the ability to make complex budgeting decisions is a proper Activity for a claimant who is 16 or 17 years old. The fact that they may have no bills to pay or have no need to budget, as such, is not relevant. I have seen claims where important information was left out just because of age and where the assessor did not ask relevant questions for the same reason.