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.