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Failure to invite for review PIP claimant with 3 year award - dealing with period between expiry and new claim
Hi all,
I have a client who had a 3-year enhanced/enhanced PIP award made by tribunal for the period Feb 2018 to Feb 2021 (tribunal was in Nov 2018). Prior to that, he had another enhanced/enhanced award, which the DWP had withdrawn on review leading to that appeal.
Client needs help to manage money and had not noticed that his award had stopped as his mother had not been able to visit and go through his finances during lockdown. I had assumed that he had failed to return an award review form, and asked to revise what had been assumed to be a decision that he had failure to provide relevant information and make a new claim in the alternative. This was not until December 2021, when they approached us.
Needless to say, the new claim has been refused and following MRN there is still no award, so we are appealing again. However, the MRN explains no AR1 was ever sent out - the DWP just allowed the tribunal’s award to end. So as it stands, whatever the result of the new appeal, he will have no PIP (or SDP) entitlement for the March-December 2021 period.
Does anybody have any experience of this? I cannot see there would be a legal basis for a tribunal to backdate to expiry of the previous award, but it seems outrageous that they have failed to call him for review (clearly it would be different if it was 2 years or less, but that’s not the case here). As 1) it seems to be a failure to follow departmental policy (though I have struggled to locate a precise ADM for it) 2) the letter confirming implementation of the tribunal award, ought to have contained the usual ‘We will contact you after X to make sure you are receiving the right level of PIP’. There seems to be this slight distinction in treatment of awards made by the DWP and by the FTT.
Obviously the tribunal stands in the shoes of the decision maker but if it’s considered a new claim then I can’t see a way of getting round reg 27 of the Claims and Payments Regulations which would seem to limit any possible backdating from a strict legal perspective.
I planned to make a complaint, but the amount of loss would of course depend on the result of the appeal on the new claim, but it seems unfair if my client loses out financially when he has not been sent any notification of his award ending. I would appreciate if anyone can share any experience of similar.
Many thanks in advance
Alex
He was sent notification of his award ending with his uprating letters and the tribunal decision.
PIP used to maintain a discretion whether to review “short term fixed period awards”, awards of 3 years or less, and I always advise people to keep an eye out for the Ar1 at the 6 month mark. They’re under no duty to review a fixed period award. However, bearing in mind reg 15 he might be able to secure the date of claim back to when the previous award ended
Hi Dan
Thanks a lot for the steer on reg 15, which I’d managed to avoid in all cases up to this point! This should be sufficient to deal with the grievance so thank you for that.
Just on principle on reviews though, to my mind it looks like a short term fixed period would be limited to 2 years and below as set out in the ADM:
P2063 When deciding the duration of a fixed term award1 of PIP the DM should look at all the evidence
and facts of the case, including the advice from the HP. There will be two types of fixed term awards
1. short fixed term awards, which will be for a minimum of 9 months and a maximum of 2 years or
2. longer fixed term awards, where the DM will set an expiry date 12 months after the date on which the
claimant is due to be referred to the HP for a review
In practice it feels like a two-tier system as if the DWP are making a 3 year award then they appear to need to set a review date (and therefore give an AR1), but seem to take a different position where the FTT has found in claimant’s favour.
Best wishes and thanks again
Alex
Given what appears to be 2 short awards so far I’d also be focusing your appeal on a much longer award length.
Thanks Mike - it looks in fact like the first award (double enhanced following the first HCP’s recommendation), was made for two years for the very reason that in the HCP’s view the client’s conditions were chronic and likely to deteriorate! Something about the road to hell being paved with good intentions…
Worst justification for a short award I’ve read for some time.
Hi, I’ve had this thread highlighted to me via a recent inquiry.
My reading of PIP reg 15 -
https://www.legislation.gov.uk/uksi/2013/377/regulation/15
- is that while it allows for the relaxation of the 3-month backward/9-month’s forward tests it doesn’t provide for the backdating of the PIP claim.
Am I reading it wrong?
Hi, I’ve had this thread highlighted to me via a recent inquiry.
My reading of PIP reg 15 -
https://www.legislation.gov.uk/uksi/2013/377/regulation/15
- is that while it allows for the relaxation of the 3-month backward/9-month’s forward tests it doesn’t provide for the backdating of the PIP claim.
Am I reading it wrong?
No, that’s correct. It provides a slight relaxation of the retrospective required period. There’s no provision for backdating.
Wasn’t this the policy they didn’t follow: https://www.gov.uk/government/news/coronavirus-update-benefit-reviews-and-reassessments-suspended ? I know they had a wobble with whether it applied to tribunal decisions (but I thought resolution of that was accepted it did).
The failure to follow that policy in this case might be a public law wrong (so threat of JR) but your problem there is time limits- arguably 3 months from when they did not extend it?
Thinking separately: he potentially had until March 2022 to make a late application for supersession of the FTT award that ran to Feb 2021- grounds for supersession are change of circumstances, his health has continued to be this bad so now clear he will continue to meet the conditions for longer and award should be extended. You might be able to argue that some correspondence that he or you had with DWP in that period should have been treated as such an application.
M
Thanks Elliot and Martin.
Hi, I’ve had this thread highlighted to me via a recent inquiry.
My reading of PIP reg 15 -
https://www.legislation.gov.uk/uksi/2013/377/regulation/15
- is that while it allows for the relaxation of the 3-month backward/9-month’s forward tests it doesn’t provide for the backdating of the PIP claim.
Am I reading it wrong?No, that’s correct. It provides a slight relaxation of the retrospective required period. There’s no provision for backdating.
Hi Elliot - thanks for this - I’d prematurely jumped to the wrong conclusion about how the provision operates. Would you be able to give an example of this provision would apply, by any chance? I’m struggling to fathom the sort of situation where shifting the prescribed date to the end of the last claim is going to provide more leeway.
I can see how it would help the prospective part of the required period if there was an improvement of health so that they wouldn’t have 9 months going forward, but struggle to see how it would be the retrospective period being RELAXED by shifting the prescribed date.
Many thanks in advance
Alex
Wasn’t this the policy they didn’t follow: https://www.gov.uk/government/news/coronavirus-update-benefit-reviews-and-reassessments-suspended ? I know they had a wobble with whether it applied to tribunal decisions (but I thought resolution of that was accepted it did).
The failure to follow that policy in this case might be a public law wrong (so threat of JR) but your problem there is time limits- arguably 3 months from when they did not extend it?
Thinking separately: he potentially had until March 2022 to make a late application for supersession of the FTT award that ran to Feb 2021- grounds for supersession are change of circumstances, his health has continued to be this bad so now clear he will continue to meet the conditions for longer and award should be extended. You might be able to argue that some correspondence that he or you had with DWP in that period should have been treated as such an application.
M
Hi Martin, thanks as always for the insight.
Agree that JR is a bust but may put in a complaint regardless.
Think the latter may be doable as we’d basically put in an MR against what had been assumed to be a closure for failure to provide information. If there was nothing in fact to MR then I can hopefully spin that this should have been taken as a supersession request rather than a ‘ghost’ MR. Hadn’t thought of being able to supersede from 13 months after end date of the tribunal’s award - may need to get onto the next super supersession session!
In terms of practicalities, the appeal against the new decision is awaiting a bundle. Does the late supersession argument need to catch up or can it just be deployed in the tribunal?
That is
1) would need to make this argument to the DWP and go through a separate process for challenging that if refused, or
2) can I just put/highlight previous letters before the tribunal and submit that stepping into the DWP’s shoes this year, with broadly similar health conditions, the decision that ought to have been made on this claim was a late request for supersession of the previous tribunal decision?
Really grateful for any help you’re able to give.
All best,
Alex
Hi Elliot - thanks for this - I’d prematurely jumped to the wrong conclusion about how the provision operates. Would you be able to give an example of this provision would apply, by any chance? I’m struggling to fathom the sort of situation where shifting the prescribed date to the end of the last claim is going to provide more leeway.
I can see how it would help the prospective part of the required period if there was an improvement of health so that they wouldn’t have 9 months going forward, but struggle to see how it would be the retrospective period being RELAXED by shifting the prescribed date.
The usual rule is that the conditions of entitlement need to be satisfied for the three months prior to the date of claim or, failing that, the award will begin three months after they do in fact meet those conditions. The ‘relevant date’ for the purposes of the retrospective required period is either the date of claim or such later date as may apply.
The effect of reg 15 is that a reclaim based on the same facts within 2 years of entitlement ceasing shunts the relevant date for the purposes of the retrospective required period back to the end of their previous award. Which is a fairly roundabout way of saying that they are exempt from it.
This is unlikely to be of much use in a typical case, because if the claimant has had the condition for at least two years then they are not likely to be overly concerned about the three month rule.
However it could have relevant e.g. in a case where someone suffers a relapse of a mental health condition or similar, as they would be able to rely on the final three months of the earlier award to satisfy the retrospective period condition on the later claim even though there was an intervening period where they would not have qualified.
So it is a fairly niche provision.
Hi Elliot - thanks for this - I’d prematurely jumped to the wrong conclusion about how the provision operates. Would you be able to give an example of this provision would apply, by any chance? I’m struggling to fathom the sort of situation where shifting the prescribed date to the end of the last claim is going to provide more leeway.
I can see how it would help the prospective part of the required period if there was an improvement of health so that they wouldn’t have 9 months going forward, but struggle to see how it would be the retrospective period being RELAXED by shifting the prescribed date.
The usual rule is that the conditions of entitlement need to be satisfied for the three months prior to the date of claim or, failing that, the award will begin three months after they do in fact meet those conditions. The ‘relevant date’ for the purposes of the retrospective required period is either the date of claim or such later date as may apply.
The effect of reg 15 is that a reclaim based on the same facts within 2 years of entitlement ceasing shunts the relevant date for the purposes of the retrospective required period back to the end of their previous award. Which is a fairly roundabout way of saying that they are exempt from it.
This is unlikely to be of much use in a typical case, because if the claimant has had the condition for at least two years then they are not likely to be overly concerned about the three month rule.
However it could have relevant e.g. in a case where someone suffers a relapse of a mental health condition or similar, as they would be able to rely on the final three months of the earlier award to satisfy the retrospective period condition on the later claim even though there was an intervening period where they would not have qualified.
So it is a fairly niche provision.
Many thanks, Elliot - had not been thinking about on/off conditions
Best wishes