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Migration to PIP from DLA - ?discrimination

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Lucy@Barrow
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Our client reported a change in circumstance for DLA in February 2014 then entered the process to be assessed for PIP.  He received his decision yesterday that he has been awarded enhanced rate daily living and enhanced rate mobility PIP.  His award letter states that his DLA will cease on the 16/09/14 and his PIP will commence from the 17/09/14.  Under the rules of DLA any award arising from a change in circumstance would be backdated to the date the DWP were notified of the change – indeed the assessment of the client is based on their condition on the day that they reported the change.  However, under the rules for PIP it appears that ‘If you make a claim for PIP your DLA award continues until a decision is made on your PIP claim.  Your DLA award then ends 4 weeks after the next DLA payday after the decision is made on your PIP claim, whether you are awarded PIP or not. If you are entitled to PIP your entitlement starts from the day after your DLA award ends’ (taken from CPAG pg 608)  This occurs despite that fact that they are taking in excess of 6 months to make a decision regarding entitlement to the benefit.

In the case of our client this means that he will continue to receive DLA Low rate Care and low rate mobility until 16th September (£43.10).  His PIP will then become payable the following day at the rate of £138.05 per week.  Due to the decision not to allow the award to be backdated he is missing out on backdated benefit worth £3038.40.  Additionally his mother has lost the right to claim a backdated payment of the severely disabled child element which has again left them out of pocket (this is worth in the region of £772.00).  This is even more absurd when you consider if he had made a new claim for PIP in February (i.e. was not in receipt of DLA already) he would have been entitled to a full backdated payment to the date of claim regardless of how long it had taken to make a decision.

Does anyone else have any experience of this?

It seems quite clear in the extract from CPAG that it is the date of decision but surely the date of decision should be the date the circumstances were reported as changing and not a date in the dim and distant futture when a decision is finally made regarding entitlement?

I would be really interested to know if anyone is taking any action in regards to this and, if so, how successful they have been.

Thanks

Daphne
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unfortunately that is correct the way the legislation is written - see discussion thread here -

http://www.rightsnet.org.uk/forums/viewthread/6464/

it has been raised with the DWP by a number of people/organisations including Macmillan I think but to no avail so far

Paul_Treloar_CPAG
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In written answers in the Commons, Mark Harper has stated in response to the issue of delays in PIP assessments:

1 Sep 2014 : Column 49W Mr Harper: DWP does not operate a blanket approach to compensation. Claimants who consider their assessment has been delayed by Atos or Capita should in the first instance take this up with the relevant company, who each have their own complaints process. If the complaint cannot be resolved, complainants will be signposted to DWP’s independent complaint tier, the Independent Case Examiner (ICE). If the ICE upholds the complaint, they will recommend redress for any impact on the complainant, in line with DWP policy on:

Financial Redress for Maladministration

This would be the Financial Redress for Maladministration policy that is nowhere to be found on the Gov website now would it?

AdviceShop
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Mac@Barrow - 28 August 2014 11:02 AM

Our client reported a change in circumstance for DLA in February 2014 then entered the process to be assessed for PIP.  He received his decision yesterday that he has been awarded enhanced rate daily living and enhanced rate mobility PIP.  His award letter states that his DLA will cease on the 16/09/14 and his PIP will commence from the 17/09/14.  Under the rules of DLA any award arising from a change in circumstance would be backdated to the date the DWP were notified of the change – indeed the assessment of the client is based on their condition on the day that they reported the change.  However, under the rules for PIP it appears that ‘If you make a claim for PIP your DLA award continues until a decision is made on your PIP claim.  Your DLA award then ends 4 weeks after the next DLA payday after the decision is made on your PIP claim, whether you are awarded PIP or not. If you are entitled to PIP your entitlement starts from the day after your DLA award ends’ (taken from CPAG pg 608)  This occurs despite that fact that they are taking in excess of 6 months to make a decision regarding entitlement to the benefit.

In the case of our client this means that he will continue to receive DLA Low rate Care and low rate mobility until 16th September (£43.10).  His PIP will then become payable the following day at the rate of £138.05 per week.  Due to the decision not to allow the award to be backdated he is missing out on backdated benefit worth £3038.40.  Additionally his mother has lost the right to claim a backdated payment of the severely disabled child element which has again left them out of pocket (this is worth in the region of £772.00).  This is even more absurd when you consider if he had made a new claim for PIP in February (i.e. was not in receipt of DLA already) he would have been entitled to a full backdated payment to the date of claim regardless of how long it had taken to make a decision.

Does anyone else have any experience of this?

It seems quite clear in the extract from CPAG that it is the date of decision but surely the date of decision should be the date the circumstances were reported as changing and not a date in the dim and distant futture when a decision is finally made regarding entitlement?

I would be really interested to know if anyone is taking any action in regards to this and, if so, how successful they have been.

Thanks

Hi

We have had the same issues up here and are looking into it. I also feel it is discriminatory and we are looking at a possible challenge to the PIP Regs (Reg 16 of the PIP Transitional Regs I think) due to this.

I feel that proceedings could have been lodged a while ago against the Regs, but Macmillan and others who “expressed concern”, for reasons only they know, have never done so!

Peter

Paul_Treloar_CPAG
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alex paul - 04 September 2014 09:58 AM

Hi

We have had the same issues up here and are looking into it. I also feel it is discriminatory and we are looking at a possible challenge to the PIP Regs (Reg 16 of the PIP Transitional Regs I think) due to this.

I feel that proceedings could have been lodged a while ago against the Regs, but Macmillan and others who “expressed concern”, for reasons only they know, have never done so!

Peter

The problem that we’ve come up against in looking at how to challenge the transitional regulations is that it seems impossible to arrive at a solution that doesn’t potentially impact in a negative fashion on claimants who end up with a reduced or removed entitlement to PIP when making the transition from DLA, and who could thus end up being saddled with potential overpayments as a result.

Lucy@Barrow
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We are now finding that those who are currently in receipt of DLA and are then entitled to increase because of DS1500 are having to wait for approximately 8 weeks longer than the anticipated 10 working days due to the above rule.  In recent weeks we have had a client die before the PIP is paid - this seems grossly unfair. I understand that there is scope to address this by arguing that the claim was never made etc as per previous threads but none of this alleviates that fact that the client has been denied the benefit that they needed prior to death.

I understand the need to protect those who are found not to qualify under the PIP rules Paul but surely the current regs could be brought in line with the DLA regs, as arguably those that do qualify are entitled to similar protection.  If an over payment does occur it can be very strongly argued that it is not recoverable (or certainly not at the levels that might be requested) due to the length of time that it has taken for the decision to stop the benefit.
Under all Social Security Benefits the client only has to pay back an amount if they are found to have misrepresented or failed to disclose a material fact.  As there would have been neither of these I struggle to see how a recoverable overpayment would have occured given that the client notifies in a timely manner and it is the delays by the DWP that have caused the overpayment?

I also wonder whether there may be some form of age discrimination given that those 64 and under reporting a change in circs will get moved from DLA to PIP (and be disadvantaged) but those already in receipt of DLA but above this threshold will continue to be assessed for DLA and benefit from the rules regarding backdated increase etc?

Paul_Treloar_CPAG
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We can still ask the DWP/government to do something to sort out this situation Lucy/Mac, either by amendment of the regulations and an undertaking that no-one negatively affected is penalised on the grounds you identify, or ask them to agree to making extra-statutory payments to compensate people who lose out through the transitional regulations as they stand. What we, at CPAG, cannot do is try to run a test case for an interpretation of the regulations as being ultra vires or similar if, as a result of a decision being taken, other people could lose financially from that same test case decision, which would be a possibility on the basis of how we have looked at the legislation so far.

Thus, encouraging your own organisation to continue to lobby government on the issue, and working through other bodies such as the Disability Benefits Consortium to put collective pressure on, and highlighting the effect of these rules with MP’s such as Dame Anne Begg, chair of the Work and Pensions Committee, as I did last week (and as I emailed you last week to let you know), are all ways to try and ensure the problem is resolved properly.

Lucy@Barrow
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That makes sense Paul and see why it is a virtually impossible situation for a Test case.  It is important that we all continue to try to influence change as much as possible. There is the possiblilty of a news article in the next week or 2 so we are definately continuing to lobby on this issue. Also, our MP has confirmed that he will take some action in respect of this as well so here’s hoping!

Lucy@Barrow
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see following link for article published by Disability News Service regarding this issue

http://disabilitynewsservice.com/2014/09/benefit-claimants-missing-out-on-thousands-in-transfer-from-dla-to-pip/

Tom H
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There’s arguably a flaw in the PIP Transitional Regs.

Reg 20 applies only where a person notifies the SOS of a change of circs.  However, change of circs for these purposes is defined in Reg 2 as follows:

” “change of circumstances” means a change of circumstances which a person might reasonably have been expected to know might affect the continuance of that person’s entitlement to disability living allowance (by ending entitlement to one component or both components or resulting in entitlement to one or both components being at a different rate”

The above definition does not include the words “but for these regulations” so unless those words can be read into the definition, Reg 20 would not appear to apply. 

A change of circs, whether a worsening or improvement in needs, cannot possibly cause entitlement to a DLA component to either “end” based on the DLA test or be"at a different rate” precisely because of the effect of the Transitional Regs, ie such change can only lead to an award of PIP or no award of PIP.  It follows that a claimant could not reasonably be expected to know that the “continuance” of his/her DLA entitlement might be affected unless s/he knew that his/her notification of change of circs would, at the point it is made, be treated as an application for PIP.  The fact experienced advisers including myself did not, until this and other threads raised it, realise the effect of Reg 20, suggests that claimants could not reasonably be expected to realise it either.  Consequently, the change of circs would not fall within Reg 2 of the Transitional Regs making Reg 20 inapplicable and the normal change of circs legislation, ie section 10 SSA 98 and Reg 6(2) D&A 1999, applicable.

The one thing that might put a claimant on notice is any letter advising them of future PIP changes for existing DLA claimants.  These have been sent out to many people but I’m not sure whether they clearly address the point that a change in needs will be treated as a claim for PIP rather than a change for DLA.  I doubt it because people in our area have received such letters and they are not subject to re-assessment/self selection, ie they cannot be invited to claim PIP and must apply for DLA supersessions instead. 

Edit: Only way to test the argument would be to appeal, at very least, the decision ending DLA.

[ Edited: 16 Sep 2014 at 04:16 pm by Tom H ]
Dan_Manville
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You beauty. I’ve been meaning to have a good hard look at that for a while and we’re waiting on Counsel’s opinion on exactly this question!

Nice one Tom.

Tom H
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Further thoughts on this.

Whilst it may be legally valid, it’s still odd that a claimant’s knowledge of how a change of circs might affect his/her DLA is made the justification for assessing him/her, instead, under PIP once the change has been notified. 

If the definition of change of circs is legally valid, there’s perhaps a public law or Equality Act challenge.  The SSWP has to make sure that there’s sufficient info published to make people aware of the “relevant date” specified for their area – see Reg 2(4) Trans Regs.  Presumably, that’s to allow claimants to make an informed choice about whether to apply for DLA supersession (ie, by notifying a change of circs before the relevant date) or PIP (ie, after the relevant date), or to stick with the DLA they’ve got.  Is a PIP postcode map apparently available online only “sufficient” in this regard?  Reg 2(4) above gives the SSWP discretion to decide the manner in which the relevant date is published, eg internet, but that is subject to the information still being “sufficient” for its purpose.  And does the definition of change of circs above promote a claimant’s making of an informed decision or actually frustrate it, eg by suggesting that the change of circs is still assessed under the DLA test when it clearly isn’t?
   
If the definition of change of circs is effective, I think most people who contact Blackpool with new information about their condition are going to be found to be notifying a change of circs.  In fact, I think it’s difficult in the context of DLA to provide info neutrally, ie without at the same time considering whether it “might” affect your continued entitlement.  After all, the threshold “might affect” is a low one.  And the context is obviously different to, say, B v Sos where a claimant could be expected to neutrally declare info and leave it to the DM to worry about how it might affect their benefit entitlement.

Certainly those who attempt to apply for DLA supersession after the relevant date will be caught as they wouldn’t be applying unless they felt their entitlement “might” go up, even though they couldn’t be sure it would.  And it’s hardly a co-incidence that the DWP have published in the PIP toolkit a sample DLA annual uprating letter which as well as listing things the claimant must notify,  also states that such notification “might” affect entitlement.  The claimant is, therefore, likely to be found to be making a qualifying notification of change of circs.  Nevertheless, I think Blackpool helpline staff may have to record, where it isn’t obvious, why they think the claimant can reasonably be expected to know the information s/he’s providing might affect their continued DLA entitlement.  Otherwise, it’d be open to a claimant who wasn’t successful with PIP to appeal the subsequent decision that ends his/her DLA award.  S/he would obviously have to play her/his part and explain why they’d phoned Blackpool. This thread demonstrates the scope for misunderstandings in dealings with DWP.  Probably only will occur in a small number of cases but it would be interesting to see how a helpline adviser ascertained how the claimant reasonably knew that DLA might be affected under the DLA test when the same adviser would know fine well that it was all hypothetical as the DLA test was now obsolete for that claimant.  Such prompts as “you’ve read your DLA annual uprating letter and understand that your DLA might be affected by the notification you’re making today” would be verging on the unethical (it “would” be affected; no “might” about it).

When I phoned Blackpool the other day to notify a change of circs and trigger a PIP invite they advised me that the client had to phone the PIP new claims line (also based in Blackpool I understand).  No great loss to him as he was, following my advice, making an informed choice to claim PIP regardless.  Then a colleague had the same experience.  It’s not clear whether Blackpool are worried about people later appealing DLA as above by challenging their statuses as “notified persons”, ie those sent PIP invites after being regarded as having notified a change of circs, or whether some on the helpline are just lazy.  But the effect of their advice is to make the claimant a “voluntary transfer claimant” for whom the proper meaning of “change of circumstances” is irrelevant. 

What has been the experience of those in areas where the relevant date was some time ago?  Newcastle’s was only 26 Jan 2015.

[ Edited: 13 Feb 2015 at 04:04 pm by Tom H ]
zoeycorker
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Don’t know if anyone else has got clients who have received invitations to apply for PIP from DLA yet but a tenant of mine in Sheffield aged 80(!) has. He’s on indefinite DLA for mobility and has received a letter today telling him he needs to apply for PIP.
Poor soul is in a right state!

Tom H
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A rising 80s invite:)

Given we’ve only very recently become a re-assessment area, the unfairness of the Regs’ failure to backdate PIP or, at least, increase DLA from the date the change of circs was notified is becoming more apparent.  I cannot believe they chose not to exempt special rules’ cases in particular.

I think the point I made earlier about the definition of change of circs possibly allowing a loophole isn’t going to be successful.  On reflection, they had to pick some trigger for transferring people and if they’d made knowledge that you’d be invited to claim PIP that trigger then far fewer people would have satisfied the definition.  Because the enabling power, Sch 10 WRA 2012 is so widely drafted the Regs’ definition of change of circs is almost certainly legal.  Once you accept that then any argument about a claimant losing the opportunity to make an informed choice between sticking with DLA or risking PIP falls away too as, of course, once a change of circs occurs it’s obligatory to notify.

One possible challenge to the refusal to backdate DLA for those claimants who attempted to notify a change of circs but who were, instead, directed by Blackpool to phone PIP new claims is to argue that Reg 20(2)(a) is inapplicable as none of its paras (3), (4) or (5) apply for the following reasons:

• (3) is n/a because the absence of a PIP invite means the person was never a “notified person”

• (4) is n/a because the person was not a “transfer claimant” when they notified the change of circs (they became one later, ie a voluntary transfer claimant, but by then they’d already notified the change of circs)

• (5) is n/a because the only inference that can be drawn from the fact that Blackpool did not send out a PIP invitation is that it did not consider Reg 3(5) Pip Trans Regs applied.  That wouldn’t alter the fact that the claimant had attempted to notify what they thought was a change of circs which could represent a supersession application.

Para (5) is carefully drafted and may cover mistakes where the Dept should have sent an invite but did not but there seems nothing to lose running the above argument.  The question would be whether they could rely on their own wrong in not sending a PIP invitation should a claimant challenge their failure to issue a DLA supersession decision.

Edit: However, an appeal against PIP would not appear to allow that type of challenge, nor the type of challenge mentioned in my last post, ie whether a claimant reasonably might have known the info being notified might affect DLA entitlement.  That’s because by, in effect, revoking all provisions of the SSA98, Reg 20(2)(a) prevents an appeal under section 12 SSA against the ending of the DLA (it’s not completely clear, despite PIP being a “relevant benefit” under the SSA, whether that appeal right is restored re the PIP decision itself for the claimants affected).

At para 23 of CE/783/2014 the 3 Judge Panel of the UT stated that it might have been prepared to hold that the ESA conversion decision was, in effect, a supersession decision of the existing award of IS had it not found that a right of appeal against the ESA conversion decision offered adequate redress for any issues surrounding the ending of the IS.  However, in the present situation, the option of describing the PIP conversion decision as a supersession of the DLA is expressly excluded by Reg 20(2)(a) above given its revocation of section 10 SSA.

Even if Parliament can be assumed to have accepted that the revocation of a DLA supersession during conversion is within the scope of sections 92 and 93 of, and Sch10 to, the WRA 2012 (and whilst that might not be a big “if” I think there’s sufficient doubt to still make it an “if”, eg, is it “appropriate” for the replacement of DLA with PIP that carers be denied CA due to the DLA claimant being denied the chance to get MRC?) is Reg 20(2)(a), nonetheless, ultra vires due to the “finality argument” that was unsuccessful in CE/783/2014?  If there are, as I mentioned above, some issues affecting DLA entitlement for which a PIP appeal cannot offer redress, then given the DLA award is final under section 17 SSA (or at least was when it was made - section 17 also apparently revoked for DLA by Reg 20) and cannot be terminated by supersession, again due to Reg 20, it appears the latter may be ultra vires.  The UT in CE/783/2014 accepted the force of the claimant’s argument that Parliament would not have consented to an Act, made subsequent to the SSA, that permitted the making of regs that would remove the right of appeal under the SSA (para 19).

Although the finality argument was unsuccessful in CE/783/2014 itself, the UT cautioned against regarding its decision as laying down a general rule:

“However, as we have indicated, to preserve the finality of an existing decision subject to an existing right of appeal similar regulation-making powers or regulations might, in another context, be construed more narrowly or to a different effect than we have considered necessary or appropriate in the present case.” (para 24)

I think there’s a chance that PIP might be that other context.  If Reg 20 is ultra vires, whether it’s possible to strike it out only for the, probably small, number of cases likely to be affected or whether it affects all conversions is another matter best answered by a public law lawyer.

 

[ Edited: 23 Feb 2015 at 09:41 am by Tom H ]
shawn mach
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This from Hansard earlier in the week:

Neil Coyle (Bermondsey and Old Southwark) (Lab):The Department is responsible for providing support to some people who, sadly, are at the end of their lives and have a prognosis of six months or less to live. Will the Minister update the House on progress to remove the 28-day waiting rule for terminally ill people who are transferring from the disability living allowance to the personal independence payment?

Mr Duncan Smith:May I write to the hon. Gentleman about that? We are considering that issue but have not quite made a decision, so I will provide a full answer in due course.


http://www.publications.parliament.uk/pa/cm201516/cmhansrd/cm160201/debtext/160201-0001.htm#1602018000411

 

1964
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‘Not quite made a decision’...?  Run that one by me again- how difficult can it be for Heaven’s sake?

That man never fails to amaze and astound.