PIP Supersession Requests

We are regularly approached by clients who ask if they can challenge decisions when they are well out of time to ask for a reconsideration or put in an appeal. The ‘absolute time limit’ for taking these steps is 13 months, twelve months on top of the basic one-month limit.

Essentially, the only option is an ‘any time’ revision, also known as a ‘specific grounds’ revision. If the decision maker can be persuaded that one of the specific grounds applies, they will make a new decision, and whether they agree with you about your entitlement or not, that new decision carries its own right to challenge; you are back in the system.

If the decision maker does not accept that a specific ground applies in your case, they will consider themselves unable to revise and you will be notified that your application for a revision has been refused. That refusal can be appealed, provided that the tribunal accepts that a specific ground did apply and that the decision you were challenging could have been revised. We can help you with this.

So, what are these specific grounds? 

There are specific grounds that are not relevant to PIP or this article, such as the ground affecting sanction decisions, which we will not deal with here. For our purposes, we are looking at official errors; or, decisions where there was a mistake about material facts or the decision was made in ignorance of material facts.

What can amount to an official error?

Since we are interested only in PIP, the error must have been made by a DWP officer, or the person who carried out the assessment (the HCP). Clients read about important decisions such as those made by the Upper Tribunal in MH or RJ, or by the Supreme Court in MM and for understandable reasons, they ask if they can re-open their case, believing that their decision was made in accordance with these new decisions. Not the case, sorry, you will not succeed if all you are saying is that the decision was shown to be wrong in law by a later decision. You could however point to how that later decision is relevant to you and ask that your case is reviewed, what the DWP would call a ‘supersession’.

• If the decision maker in your case had specific evidence that was relevant to your claim but failed to take it into account, that could be an official error. It is enough that this evidence raised a strong possibility that you were entitled.
• Similarly, if evidence was held by the DWP but it was not available to the decision maker, that could be an official error.
• If your decision maker did get the law wrong, that could be an official error, but bear in mind what is said above about later decisions.
• An unasked question can count as an official error. It needs to be something relevant to the decision on your claim and which it was reasonably obvious that they would need an answer to. You can see the sense of keeping a copies of all your claim forms, and of requesting a copy of the full assessment reports as looking through these and any supporting evidence that was sent in would be part of our work.
• If no reasonable decision maker could have made the decision made in your case, having established the facts, then this could be an official error. Essentially, the question is whether the decision maker exercised ordinary prudence, care and diligence. Not an easy ground to show but we would consider it.

Guidance given to decision makers

A decision maker should make decisions in accordance with the law and will often turn to ‘Advice on Decision Making’ (ADM), provided to them by the Department. You can use it too, just search online. The advice on any time revision is as follows:

A3103 In considering whether a decision was based on an official error, DMs should note that:

1. An official error refers only to a clear mistake of fact or law arising because an officer has failed to make a decision or take an administrative act that was required under social security legislation. The officer must not have been acting in a private capacity, for example giving advice to a neighbour.
2. The official error must have made the appropriate decision wrong
3. The error must lie in the decision and not merely in the circumstances surrounding the issue…..

10. An error law by a decision maker is an official error.

You can probably see differences between what the ADM has to say and what we have set out above in the bullet points. Our content has been gathered from previous Upper Tribunal cases but you can see how potentially difficult it can be to persuade a decision maker that you have made out a ground for an any time revision if they have the ADM open next to them. Bearing in mind what is said above about being able to appeal to a tribunal a refusal to carry out a revision, that the tribunal will need to accept that a specific ground was made out, so that the original decision could have been revised, we believe that it makes sense to get competent advice right from the start of such a piece of work.

Can a tribunal decision be challenged out of time?

Not using an any time revision, no. However, tribunal decisions concerning PIP can be superseded if:

(a) there has been a change of circumstance (see regulation 23 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013);

(b) the Secretary of State has received new medical evidence (regulation 26);

(c) the “loss of benefit” provisions of the Social Security Fraud Act 2001 apply (regulation 28);

(d) they were made under section 26(4)(b) of the Social Security Act 1998, which relate to “lookalike” appeals (regulation 31(b)); or

(e) they were made in ignorance of, or based upon a mistake as to, some material fact (regulation 31(a)).

Bear in mind that the above are the mechanisms for changing an award made by a tribunal. You can see how they can be used to disturb a tribunal award when a renewal or change of circumstances claim is made, or if the DWP decide that a claim was made fraudulently.

What would I stand to gain if I was successful with an any time revision?

Purely as a guide, let us look at someone receiving 5 years’ arrears in different circumstances.

Someone who missed out on an award of the daily living component, because they scored fewer than 8 points, but who should have had the standard rate (between 8 and 11 points), would stand to receive around £15,000.

If they should have had the enhanced rate, scoring 12 or more points, then those arrears would instead be £23,000.

Moving from standard to the enhanced rate would give them £7,500.

For mobility, a move from no award to one of the standard rate would produce arrears of around £6,000.

Especially with claims based on mental health, they could instead be looking at going from no award to the enhanced rate. Five years arrears would give them £16,000.

A move from standard rate to the enhanced rate of mobility would produce arrears of around £10,000.

In summary, there is no reason to assume that your old decision cannot be looked at again and potentially be changed. You will see from the above that the any time revision provision is not an easy way around being out of time to challenge a PIP decision, but it should be considered. If you find yourself struggling with the complexities of the provision, we can help. We do not recommend that anyone makes a claim without getting competent advice and support, and we certainly believe that your chances of succeeding with an any time revision request will be greater if you have that professional input.