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Judge states 50% rule does not apply to PIP.
This appeal has already beet to the UT once. At the start of the hearing last Thursday, the judge said the “round rule” does not apply to PIP as it does in ESA. I asked him for clarification. Did he mean the 50% rule. He just repeated the “round rule” does not apply to PIP. I said I disagreed with his opinion. Not surprisingly the appeal was lost.
Does anyone have any idea if the “round rule” could mean anything else, please?
Obviously, I am requesting the statement of reasons and record of proceedings. However, I believe I might have grounds of procedural error. What do others think?
I’ve never heard that phrase. The only thing I can think of is that the judge is saying that the dicta laid down in the Moyna case in the House of Lords’ judgement, i.e. the “throughout a period” interpretation doesn’t apply to PIP because of the 50% rule
As with Nevip, I haven’t heard anyone refer to a “round rule” in any benefits context and a forum search on this site suggests that the term has never been used by any of us before this thread.
The context you are referring to maybe suggests that the argument was about whether descriptors apply in variable cases if they can properly be said to apply to a claimant “in the round” or if you have to perform a strict mathematical analysis of what happens >50% of the time..
If thats the case then it would seem that the judge was (correctly) saying that the ESA-style “in the round” thinking does not apply to PIP and that the mathematical approach does.
I can’t really think of what else he could mean
As with Nevip, I haven’t heard anyone refer to a “round rule” in any benefits context and a forum search on this site suggests that the term has never been used by any of us before this thread.
The context you are referring to maybe suggests that the argument was about whether descriptors apply in variable cases if they can properly be said to apply to a claimant “in the round” or if you have to perform a strict mathematical analysis of what happens >50% of the time..
If thats the case then it would seem that the judge was (correctly) saying that the ESA-style “in the round” thinking does not apply to PIP and that the mathematical approach does.
I can’t really think of what else he could mean
Come to think of it, he did mention Moyna but this was in relation to ESA and DLA. Therefore, a claimant, who has the problems for the majority of time, e.g. 4 days out of 7. But not necessarily 24 hours of that day passes the test?
[ Edited: 24 Sep 2016 at 10:45 am by Terry Craven ]
If you meet a descriptor for >50% of days in the required period you qualify. Per Judge Hemingway if you satisfy the descriptor for a more than trivial part of a day you meet it for the whole day (http://www.rightsnet.org.uk/welfare-rights/caselaw/item/claimant-can-satisfy-pip-descriptors-if-they-only-apply-for-part-of-the-day)
So if you are affected for (say) 1 hour per day, 4 days per week you score the points. If you are affected 24 hours per day, 3 days per week you don’t. It is the days that are important more than the hours.