Personal Independence Payments & Your Mental Health
Personal independence payment (PIP) is the disability benefit for working age people, replacing disability living allowance (DLA). There are still many people who have yet to move from DLA to PIP, and some of these would be better off moving voluntarily, rather than waiting to be moved by the DWP. This is because some people would get a better award with PIP than they could ever get with DLA. There are exceptions to the basic rule that 64 is the maximum age for beginning a claim for PIP, and people who have recently had an award of the mobility component of DLA have protection.
There is no doubt that DLA and PIP are very different benefits, and quite a few clients have said they thought that PIP is less well suited to claimants with mental health problems. It is arguable that those whose claim is based on the need for supervision have a less obvious route into the benefit, and we think it more important than ever that professional help is sought with the claim form. You need to know where the Department is coming from, and it can certainly help to have a good understanding of the case law on PIP, since this has improved the position of claimants with both mental health and physical problems and many clients have a mix of the two.
Mental health is such a broad term and, if we are using it to separate those claimants who have purely physical problems, then it will include those affected by conditions such as Asperger’s, depression, cognitive limitations, anxiety, PTSD, OCD, psychosis, personality disorders, agoraphobia and ADHD, to mention just a few. It will be seen that the limitations experienced by people suffering from such a wide range of conditions will be hugely different.
Important to keep in mind what regulation 4(2A) has to say about all the Activities in the PIP test, that a claimant is to be assessed as satisfying a descriptor in the test only if they can do the task safely, to an acceptable standard, repeatedly and within a reasonable time period. Worth pointing out that ‘repeatedly’ here means as often as reasonably required; and that a ‘reasonable time period’ means no more than twice the time needed by someone without limitations. That is what the law says, and it is on page 765 of the standard work on this area of law, but we have yet to see either an assessor or a Decision Maker apply that part of the law. If the matters in regulation 4(2A) are important to your claim, then sadly, you are likely to have to see your claim through to tribunal appeal to get what you should have. It can perhaps be seen from this that although a claimant should be able to have confidence in the face-to-face assessment and decision-making for PIP, and conclude that if they did not get the benefit, or got less than the enhanced rate of both the daily living and mobility components, then this must be the right award for them, claimants cannot, in our experience, have that certainty.
Let us look at some of the ways in which mental health problems can be relevant to the PIP Activities. The Upper Tribunal considered a claimant whose dyslexia was such that he could not read or tell the time. The Secretary of State challenged a tribunal finding that 4 points were scored under Preparing food because he needed assistance to read recipes, instructions on packages and to set a timer. The UT judge sent it back for a re-hearing, saying that the effect of an inability to read and tell the time may vary according to the limitations that it imposes on the particular individual, and that careful and detailed findings of fact as to the effect on the particular claimant would be required. The possibility of an award for such difficulties was left open, and it will depend on the individual. Where there are issues with concentration and memory, the Decision Maker may opt for descriptor 1(c), Cannot cook a simple meal using a conventional cooker but is able to do so using a microwave (2 points), but if there is a higher scoring descriptor that also fits, then that is the one that should apply. For example, 1(e) refers to the need for supervision or assistance to either prepare or cook a simple meal, worth 4 points. The law also says that a claimant could hardly be said to able to cook a meal using a microwave if he does not possess a microwave.
With Taking nutrition, lacking the motivation to eat is probably the most common way to score points. In the case of SA, the Upper Tribunal considered the case of a woman who had a loss of appetite and lacked the motivation to either prepare food or to eat it. She was encouraged to eat, when that encouragement was available to her and otherwise, lived on soup and coffee and sometimes a sandwich. The judge said that for the days when no encouragement was available, her diet was not to be regarded as satisfactory. “Nutrition” is not defined in the regulations, but this decision suggests that there might be some minimal level of food value necessary for it to count as nutrition.
It may be that with Managing therapy or monitoring a health condition, you might not be aware of a worsening of your symptoms, or the issue maybe you forgetting to take your medication as you should. A need to set phone alarms or to use a compartment box so that you tell if you have taken a dose, both count as aids, or you may have your own system. Memory and concentration problems are covered, but so are steps taken to make sure that you do not take more than you should.
With Washing & bathing, the encouragement needed to deal with a lack of motivation would certainly count. We have had clients with OCD who needed reassurance that they could stop washing, and without this input, would carry on, to their detriment, such as their skin being affected. Remember also that where the problem is not resolved even with that reassurance, the person should still score points.
There will sometimes be a need for input either with Managing toilet needs or with incontinence, where the issue is a lack of cognitive ability. We saw above that where the person does their best, but cannot do as good a job is needed, points can be scored because the task cannot be achieved to an acceptable standard. Unmet needs count just as much as met ones, but with many of these issues, you may well have to appeal to a tribunal to get the points that you should score.
A lack of motivation can score points with Dressing & undressing, whether the issue is dressing or undressing at the end of the day. Putting on clothes from the previous day is also relevant; as with all these problems, they must be as a result of a medical condition for them to count. The Upper Tribunal have said that where as a result of her medical condition, a claimant took a long time to choose, this could count and score points.
The Upper Tribunal have also accepted that mental health difficulties can lead to the scoring of points under Communicating verbally. The judge went on to say that where a claimant has difficulty in speaking as a result of anxiety, or perhaps some other mental health problem, it must be asked what it is that causes that difficulty; whether it is a fear of social engagement or something simply connected to the activity of communicating verbally.
With Activity 8, Reading & understanding, illiteracy has been held not to be relevant, unless it can be shown to be due to the claimant’s mental or physical condition.
Engaging with other people face to face regularly features in claims and appeals for people with mental health conditions. We have seen no end of assessment reports justify scoring no points for this part of the test, saying that the claimant engaged with them and/or engages with people in shops or at medical appointments. This is simply wrong; the law says that this Activity is testing the person’s ability to engage socially, meaning to interact with people in an appropriate manner, and it will require them to understand body language and be able to establish relationships. The Upper Tribunal have said that the sort of interaction that the DWP take into account does not meet the point. A judge pointed out that a brief conversation about the weather with a stranger would not, as a matter of ordinary language, be establishing a relationship. The need for encouragement or prompting will score points, but the need for ‘social support’ will score more. This is defined as support from a person “trained or experienced in assisting people to engage in social situations”. The Upper Tribunal have said that it will suffice if the person assisting does so in light of experience only of that particular claimant, so that family and friends can count. The social support need not be provided at the time of engaging face to face, but can be the use of strategies provided by counselling beforehand, but without which the claimant would be unable to engage with other people. Remember too that it is the need that scores points, so that an unmet need is also relevant.
The phrase “simple budgeting decisions” used in Making budgeting decisions are those relating to calculating the cost of goods and the change that should be received after buying something. “Complex budgeting decisions” means being able to calculate a personal or a household budget, to be able to pay bills and plan for future purchases. Remember that what is being tested is the ability to make decisions, so that sensory or physical limitations do not count, and nor will a lack of familiarity with budgeting. It was held by the Upper Tribunal that even a 16 year old claimant suffering with ADHD should be assessed on his ability to make complex budgeting decisions, including the need to prioritise certain expenses, as opposed to spend his money impulsively on something else.
Claimants with mental health problems can potentially score mobility points under the various parts of Planning & following journeys. Descriptor (b) says that 4 points are scored where there is a need for prompting to undertake any journey to avoid overwhelming psychological distress, but a mobility of at least 8 points is needed for an award, so if no points could be scored for physical problems, then there would be no entitlement to the mobility component. Remember that “prompting” is defined as reminding, encouraging or explaining, so that more limitations are relevant than might first appear. An inability to plan the route of a journey could be as a result of anxiety, a lack of motivation or a cognitive deficit, for example. The need for someone to be with you when going somewhere is addressed by descriptors (d) and (f). The latter applying to familiar journeys, and the former to following unfamiliar journeys. The issue of whether anxiety was capable of scoring points for this section of the test was settled by the decision of a panel of three Upper Tribunal judges in MH v SSWP. Essentially, they said that for the two descriptors that refer to the need for another person to be with you, the words “overwhelming psychological distress” are to be read into them, so that “anxious”, “worried” and “emotional”, used in earlier decided cases were not sufficient, since those claimants could in fact complete journeys unaccompanied without being overwhelmed. They said that the bar is a very high one. Those words “overwhelming” and “overwhelmed” are not defined in the regulations or in MH, so they take their ordinary meaning. The Oxford Dictionary of English defines “overwhelming” as 1. Very great in amount and 2. (especially of an emotion) very strong. We have seen examples of PIP appeal bundles, which many tribunal panel members will take as gospel, saying that the wording does not apply to that Appellant because they were not overwhelmed. We say that this guidance to tribunals is wrong. It has also been held that a claimant whose psychosomatic condition caused her to believe that she was unable to walk, even though there was no physical reason that prevented her from doing so, can qualify. The only question was whether that belief, or the pain that she experienced, was real to her.
We hope that we have shown how you might score points for mental health problems within the PIP test. We believe that it makes sense to get the claim right, so advise on getting professional help with your form. An experienced adviser will be able to tell you what award you should expect at the claim stage, and what could be achieved on appeal, where the quality of decision making is that much better.