PIP Articles

PIP payments backdated

18/11/2020 // by DC-ADMIN

PIP payments backdated

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.

Challenging a PIP tribunal decision

31/10/2020 // by DC-ADMIN

Challenging a PIP tribunal decision

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:

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.

How to do a PIP reconsideration

31/10/2020 // by DC-ADMIN

How to do a PIP reconsideration

You might find yourself having to do a PIP reconsideration request without professional help and this piece is intended to guide you.

First steps

Call PIP and ask them to send a copy of the full assessment report – what you have in the decision letter is made up of excerpts from that 20+ page report and you should see the full report so that you can comment on it.
If you have had an assessment on another benefit, such as ESA or universal credit, then ask them for a copy of that assessment report as it might contain findings that would be helpful to you as evidence. You might have a letter confirming that you have passed that test and even that you have been put in the support group/have ‘limited capability for work-related activity’ but it is the findings that supported that decision that could be far more helpful.
If you have come unstuck on being moved from DLA to PIP, think how long ago you were assessed and if you suspect that the DLA assessment might have useful findings, then ask for a copy. It is more likely that any assessment for DLA will have been carried out by a doctor, which could help to counter what the PIP assessor has said. There was also a greater chance with DLA that the Department would have requested evidence from your GP, so you could ask for the evidence they used to make the DLA decision.
Ask your GP surgery for a copy of your records going back to the start of the previous year. You are entitled to these records without charge.

Don’t just put such evidence to one side to be sent in without looking carefully through it. See later for advice on this.

Go through the test

I strongly recommend that you go through the test and decide where you should have scored points (which individual descriptor), making a note of why you should have scored them. Click https://www.legislation.gov.uk/ukdsi/2013/9780111532072/schedule/1 (please make nice link button) and scroll down to Part 2 where the full test is set out. Part 1 is where Parliament defined many of the important words and phrases used in the test. A look through Part 1 now would make sense so that when you are going through the test to see which descriptors you should have scored points for you can refer back and check that you are getting it right. For example, when looking at Preparing food, unless know that “cook” means heat food at or above waist height, you might think that you should have scored points because of the problems you have when using the oven.

Alright, you have been through the test and you know where you should have scored points and why. How are you going to prove this?

Sources of evidence

These can include medical and non-medical evidence, so think about:

Who has seen for themselves how you are affected? Think about family members, friends, neighbours, colleagues, anyone who has relevant knowledge. Don’t worry that they only know about some of the things that you want to prove. Some clients suggest only one such person but other files have five or more. A statement would begin, “I Joe Bloggs of (address) make this statement in connection with the disability benefit claim made by my friend, Mary Smith.” I like to use separate paragraphs for each topic. In most cases, you will get more relevant statements by asking questions around the test activities you say are relevant and then make up a draft statement for them to add or make changes to. The statement should be signed and dated.
GP records can be very helpful but it is important that you make sure that they are going to be supportive before you send them to the DWP. You are looking for two things are you go through them; for things that are supportive of what you are saying AND for entries and letters that undermine what you are trying to prove. I would not send an incomplete set of pages where they are numbered as I would suspect that you had left out something negative, if I was them. I have done appeals where it was hard to understand why the client had already sent in some of the medical evidence as it was against them, but they apparently hadn’t seen it. It is not unusual for there to be a mix of helpful and unhelpful entries so you might have a decision to make about whether to use the records or hold them back.
Look at the assessment reports from other benefits and see if they contain findings relevant to what you are trying to prove. Sometimes I would use them if they did little more than show that the assessor found you to be a credible witness.
You might have an occupational therapy report or an occupational health assessment. Your local authority might have decided that you should have a disabled parking badge, which could be relevant to your PIP claim.

I am not a big fan of letters written by GPs to support benefit claims. You are likely to be charged for one and they often do no more than list your diagnoses and medication. Even where they do include an opinion, my personal view is that they carry rather less weight than a letter or report written for medical purposes. Look at it from the position of the DWP Decision Maker or the tribunal; how valid is the GP’s opinion on what you can do in the kitchen, when bathing, dressing or even walking outside? Will what they do write about such tasks have come only from what you have told them? There will be exceptions and your doctor might have personal knowledge from their own observations but this ought to be in your surgery records.

Don’t worry if some of this evidence reaches you after you have had to put in the reconsideration request, to comply with the one-month time limit; you can always send it in separately with a very brief covering letter.

The PIP assessment report (PA4)

I urge you not to accuse the assessor of lying, regardless of how you really feel. Better to explain how they misunderstood what you said or point out factual errors. Even this is only worth doing where it is relevant to something you are challenging. Have a look at the end of the report to see when work on it was completed. I have found gaps between this date and the date of the assessment of up to 14 days. Such a gap can be put forward as a possible reason for the (relevant) errors or misunderstandings that you refer to. The first half of the report is supposed to be the history that you gave to the assessor while the second half is where they select a descriptor for each activity and explain their choice. Look at both as you may want to comment in your reconsideration request. The decision maker will generally want to accept what the assessor said and you will try to give them a reason not to. You may find that the assessor’s conclusion is based on a misunderstanding of what you said, or their reasoning in the second half of the report could be flawed. For example, you might want 3 points for needing assistance to get in or out of a bath (descriptor 4(e)) but what you said about this need has not been considered when they justify their choice. They are employed to express an opinion, whether you agree with it or not. They have a right to explain why they do not think that you need the help that you described but it must be wrong of them to ignore it.

The reconsideration request

I would rather write a letter than use the available form. Keep it relevant and as brief as you decently can. I don’t doubt that the Decision Maker is a busy person and I do not want to irritate them. You could begin with something like,

This reconsideration request is in respect of the decision dated …………. I consider that I should have had awards of (for example) the enhanced rate of both components of PIP, for the reasons set out below.

1(e) Needs supervision or assistance to either prepare or cook a simple meal

Then explain why you need someone there to provide that assistance, having looked up the meaning of “assistance”, of course. It is not good enough to state that someone else does it for you; the issue is why you could not do it, or what would/could happen if you did.

What is missing?

This piece is intended to help you make a workmanlike reconsideration request. What I cannot do is to pass on all the benefits of my 22 years of experience. I believe that I have a fair idea of the meaning given to words and phrases that are not in Part 1, given to us by Upper Tribunal judges, or those of the Court of Appeal and the Supreme Court. I may not be able to remember it all but I know where to find it. Where I am relying on part of one of these decisions, I can include the relevant passage in the reconsideration request and provide a copy of the full decision in case they want to read more.

I am probably better able to assess the strength of your claim for the points that you want but if you have scored very few or no points at all, do not be put off but be realistic about what can be achieved at this reconsideration stage. I don’t see the point in putting this sort of effort in with such a score. You may as well just ask them to look at the decision again, get the reconsideration done and focus your efforts on an appeal to an independent tribunal, where you are much more likely to succeed.

I wish you well

PIP payments backdated

By DC-ADMIN | 18/11/2020

Challenging a PIP tribunal decision

By DC-ADMIN | 31/10/2020

How to do a PIP reconsideration

By DC-ADMIN | 31/10/2020

Enhanced PIP Benefits

By DC-ADMIN | 31/10/2020

PIP Claim – Change of Circumstances

By DC-ADMIN | 06/08/2020

What other benefits can I claim with PIP?

By DC-ADMIN | 06/08/2020

What illness qualifies for PIP?

By DC-ADMIN | 06/08/2020

PIP & ESA appeal over 29 months

By DC-ADMIN | 06/08/2020

PIP for Depression and Anxiety

By DC-ADMIN | 18/05/2020

PIP Appeal in Sutton

By DC-ADMIN | 28/04/2020

Enhanced PIP Benefits

31/10/2020 // by DC-ADMIN

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.

Repeatedly

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) [2015] UKUT 643 (AAC) and his decision in TR v SSWP (PIP) [2015] 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 [2016] 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.

PIP Claim – Change of Circumstances

06/08/2020 // by DC-ADMIN

PIP Claim - Change of Circumstances

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. For example, if the doctor was looking for something that will better control your epilepsy and reduce the number of seizures you have, then I would not see that as a change worth telling the Department about. If that medication stopped the seizures altogether, wonderful news and if the medical advice was eventually that the risk of seizures had gone away, then that would be relevant. Looking at the reverse, an increase in the frequency of seizures probably would not be relevant unless that increase was huge, as I cannot see that an increase would affect the entitlement to points.

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.

What other benefits can I claim with PIP?

06/08/2020 // by DC-ADMIN

What other benefits can I claim with PIP?

Personal independence payment is one of the most useful benefits out there. Getting it does not depend on having paid enough in National Insurance contributions. It is not mean-tested, meaning that you will not be asked how much you are earning or have in other benefit income, and your savings or capital have no relevance either. You can work full-time, part-time or be too unwell to work.

Benefit combinations

One of the few benefit combinations that does not work is PIP and retirement pension, but even this is only a problem with a new claim for PIP, not because having the state retirement pension itself is a problem, but because you could not generally make a new claim for PIP if you are old enough to have the pension. There is no problem with entitlement to PIP continuing past retirement age, so If you have your PIP award, and you continue to meet the conditions for it, you can keep it till any age.

Getting extra in other benefits, just from having PIP

Plenty of people do not realize that you can have a sickness benefit such as employment and support allowance (ESA), and receive PIP as well. This applies to both the contribution-based ESA that you earn with the National Insurance contributions that you have paid, but also applies to the income-related (means-tested) ESA. Not only can you have PIP and ESA at the same time, but just having an award of PIP can increase the amount of income-related ESA you are entitled to. Apart from the basic amount of £73.10 a week (2019/20), having an award of standard rate PIP daily living component will add a ‘severe disability premium’ of £65.85 a week to the calculation of your needs. Disability benefits such as DLA and PIP are then ignored as income for ESA purposes. If you have enhanced rate daily living component, rather than standard rate, you get an extra £16.80 a week in the form of an ‘enhanced disability premium’. These are not always added automatically as the ESA and PIP systems do not always talk to each other, so you may have to tell ESA about your PIP award. There are exceptions to you getting these premiums, such as someone receiving carers allowance for looking after you, or you having a ‘non-dependent’ living with you, but the detail of these exceptions are outside the scope of this short article, so be sure to take advice.

There are similar premiums to be added to pension credit and income support, so if you have a PIP award, make enquiries about your own circumstances. There are sometimes choices to be made about who gets what within your family or carer set up, and the wrong choice can cost you a lot of money over a year, so do take advice from a competent generalist adviser.

CHANGE OF CIRCUMSTANCES - Disability Claims

Industrial injuries

It may not be obvious, but someone who has an accident in the course of their work, or who contracts an occupational disease because of the work they do, their work environment or the tools that they use, can claim a ‘no-fault’ benefit called industrial injury disablement benefit, as well as perhaps making a civil claim for damages against their employer, if there was negligence involved. That person can also claim the disability benefit personal independence payment. Perhaps not surprisingly, having satisfied one part of the DWP that you have significant problems, can make it easier to satisfy another part of the Department.

Tax credits

You may be asking where PIP fits in with the ‘disability’ part of working tax credits. For you to get the ‘disabled worker element’ of working tax credits, £3,165 a year (2019/20), personal independence payment would count as a ‘qualifying benefit’. Again, PIP itself is not counted as part of your income for tax credit purposes. People have written chapters in books about the workings of the tax credit scheme, so it is definitely outside the scope of this article.

Carers Allowance

I regularly come across confusion about carer’s allowance and the care component of disability living allowance, and this then extends to the daily living component of PIP. Let us be clear, DLA care is/was paid the person with the care needs, and the same applies to the daily living component of PIP. Carer’s allowance can be paid to the person who provides the care. You can have a situation where someone who receives PIP because of their limitations also qualifies for carer’s allowance. There does not need to be a clash here, but the Department can be expected to be sceptical. If for example, you provide supervision, guidance or encouragement, that can be done in spite of physical restrictions you may have. For there to be a possible carer’s allowance claim, the person with the care needs must be on a ‘qualifying benefit’. Either rate of the daily living component will do, but neither rate of the mobility component will help here.

I think that it was US General H Norman Schwarzkopf Jr. who talked about the things that we know, the things that we don’t know, and the things that we don’t know that we don’t know. If this article serves to alert you to things that you did not know that you did not know, but can make further enquires about, then it will have served a useful purpose.

PIP payments backdated

18/11/2020

Challenging a PIP tribunal decision

31/10/2020

How to do a PIP reconsideration

31/10/2020

Enhanced PIP Benefits

31/10/2020

PIP Claim – Change of Circumstances

06/08/2020

What other benefits can I claim with PIP?

06/08/2020

What illness qualifies for PIP?

06/08/2020

PIP & ESA appeal over 29 months

06/08/2020

PIP for Depression and Anxiety

18/05/2020

PIP Appeal in Sutton

28/04/2020

What illness qualifies for PIP?

06/08/2020 // by DC-ADMIN

What illness qualifies for PIP?

I am often asked whether having a particular medical condition means that they are entitled to personal independence payment (PIP). It is a very understandable question, but unfortunately, I see it as the wrong question. There are medical benefits, but PIP is not what one of them. If you take industrial injury disablement benefit (IIDB), which can be paid for industrial diseases, you could say that a starting point is to have a particular medical condition, but even here, the work you have been doing has to be one in the list included in the law, so the claimant might have had exposure to particular substances or the use of certain types of equipment. Tick both of those boxes and you still come to the assessment part of looking at how the symptoms impact on the ability to function.

Claiming without a diagnosis

The position with PIP is different; the law says that you don’t even have to have a medical diagnosis. With the appeal I was preparing yesterday, the consultant uses the phrase ‘medically unexplained’. Claiming PIP without a diagnosis can be challenging as I would expect a reluctance on the part of the assessor, Decision maker, and quite possibly a tribunal, to accept what you are saying; people like labels. The fact is though that the law says that no diagnosis is needed, so you just need to know where to look for this when it comes to an appeal.

Qualifying for PIP

If it is not about having a diagnosis on a list somewhere, what do you have to show? PIP is all about how you are affected, rather than what you have got. You can imagine two people who are both suffering from arthritis, but they are affected very differently. One is still able to function while the other is crippled by it. One can shop, perhaps look after children and/or work, while the other cannot manage any everyday personal tasks without using things to help them, or being helped by carers, family or friends. Remember too that PIP assesses you with your medication; it does not look at how you would be if you did not have it. You might have asthma, but PIP will assess you very differently if your symptoms are managed by medication. Clients will sometimes explain that they have a life-threatening condition or they have an organ might go pop at any time. PIP pretty much does not care. Entitlement to PIP is about the wording in the test; the 10 daily living activities and the 2 mobility activities, and importantly, whether the way in which you are affected fits the wording in the statements, what they call descriptors, within those 12 headings. Sometimes, the impact of symptoms on a client’s life can be considerable, but their problems do not fit the wording in the test, so they do not score points. PIP is not a subjective benefit; it is not a case of looking at their lives as a whole and the way in which the illness or disability has stopped them doing what they used to do. It is an objective test; it is a points-based benefit, so if you score enough points, you qualify for an award. Too few points and there is no award, however much anybody might empathise with your circumstances.

Claiming when not expected to live

The only exception to the above is that if a claimant has been given less than 6 months to live, and a form DS1500 has been completed by a doctor to confirm that, then they are fast-tracked to an award of enhanced rate daily living component, without any consideration of how they are affected by the condition, or a need to score points. Even these people have to qualify for the mobility component in the same way as any other claimant though.

Can I assess my own entitlement?

It is unlikely that you would be reading this if you did not have problems, and I understand your need to know whether you should be claiming PIP or not. Some people get through to me by mistake, believing that they are calling the Department. They were going to ask PIP if they should claim. I see this as a bad idea as, to my knowledge, they are not geared up to advise on this. Given how regularly they get decisions wrong, and routinely apply the law incorrectly, you should look elsewhere for an answer.

Where to go might depend on where you are and what services are in your area. You can get an idea by looking at the test (Stewart, the same link you used in Article 9, please) and seeing which of the PIP test activities are relevant to you, then looking down the descriptors under each heading and adding up the points you think you should score. Remember that even if more than one descriptor applies to you under a heading (Preparing food, Engaging with others, etc), you only get the points for the higher scoring descriptor. For example, you might look at Preparing food and say that you need a seat because you can’t stand for long enough – 2 points for needing an aid; but because of your ADHD, you are easily distracted, as well as being impulsive, so have a history of leaving food to burn – 4 points for supervision. You only get the 4 points, not 6. You need at least 8 points for a component to get an award. Between 8 and 11 points will get you standard rate, and a score of 12 or more points qualifies for the enhanced rate. Self-assessing in this way is unlikely to give you an accurate score. I mean you the reader no disrespect when I say this; it is just that you need to know what the law says words and phrases used in the test mean. Some are defined in Part 1 of the Regulations – see the link above, but a knowledge of Upper Tribunal case law would be needed to accurately assess your entitlement.

Advice centres and charities

If the person you see at an advice centre or charity knows what they are doing, you can get excellent help from here. I see nothing wrong with you asking what experience the person has, such as how long they have been advising people about PIP, what training they have had and whether they have represented at appeals. You are going to decide whether to claim, and you need to know what award you should have. There can be no guarantee that the assessor and Decision Maker will get it right when processing your claim, so you will rely in part on what advice you get at the start, when deciding whether to accept the Department’s decision or challenge it, including whether to appeal to a tribunal. The better the advice you get now, the better choices you are likely to make during the process. An award of PIP can be worth between £1,200 and over £7,700 a year. A lot of awards are for three years, so that could be £23,200 or more at stake; you may decide that it makes sense to get good quality advice

Law centres and legal help

You can find good quality help in the not-for-profit and professional sectors. Equally, going to a Law Centre or a firm of solicitors does not guarantee that you will talk to someone who has the right knowledge and experience, so ask. If your polite enquiry about this seems to cause irritation or offence, then I would walk away.

Just do it

You could just apply, with suitable help, of course. Yes, an experienced adviser could ask a few well-aimed questions and tell you whether you would be wasting your time with a claim, but more questions would usually be needed to tell you what award you should have. I would go through the test, asking very much the same questions as if I was helping by completing the form with them. There is an argument for saying that you may as well fill the form with them. That way you will pretty soon find out whether to file the form away or finish it and send it to PIP. It is rare for someone to go to this trouble only to find that there is no entitlement. You may be able to agree with your adviser that if there is no claim worth sending in, then they will make no charge for their time.

What illnesses qualify?

This is where we began, but you will have gathered that this is perhaps not the right question. Mental health, learning difficulties and physical problems can all be relevant to PIP. Many disabilities are invisible, so don’t let that put you off. Variable symptoms can be tricky to assess and describe, but it just makes it more important to find that good quality help. Fatigue seems to come up more than it used to, and the limitations that this can bring can be more difficult to get across on the page.

You are at least as likely to underestimate your entitlement to points in the PIP test as you are to overestimate it, so don’t put off applying for another day. Call them on 0800-197-2222 to get a form sent out to you. This personalised form, with your name, address and NI number, will take days to arrive, so start looking for help and advice while you wait.

PIP for Depression and Anxiety

18/05/2020 // by DC-ADMIN

PIP for Depression and Anxiety

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.

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How long does it take to claim PIP?

28/04/2020 // by DC-ADMIN

How long does it take to claim PIP?

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.

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Does Carers Allowance Affect PIP?

28/04/2020 // by DC-ADMIN

Does Carers Allowance Affect PIP?

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.

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