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DLA to PIP with a missed medical

Redscooby
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Welfare Benefits at Mary Ward Legal Centre, London

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Hello there

I’ve just had a call from a case manager at PIP stating that when a claimant misses a medical and good cause is not accepted they have to wait on the medical before their DLA is paid.  My client did not receive her Atos appointment letter and her DLA payments stopped on 05/01/16. 

The PIP case manager stated that DLA is only reinstated when they have messed up; ie there has been a procedural error.  He said that it was PIP policy but could not tell me the relevant PIP guidance etc.

Just checking to see if this is true as we were given different information from DLA, ATOS and PIP.

MikeMay
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Advice Session Superviser, Citizens Advice North Yorkshire

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Not sure of a Reg necessarily covering this but I had a similar case and asked for the contact history so they could evidence informing the client of the assessment. This was sent and the claim was re-started pending a further medical although they insisted on an MR, citing the failure to contact. It seems to be largely discretionary but I say this late on a Friday and without looking it up. It’s worth noting that the contact history in this case did show that a letter had been sent but as no recorded delivery it is not proof of receipt and they backed it up with one unanswered phone call. I’m sure you’ll receive more helpful replies than this.

Peter Turville
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Redscooby - 05 February 2016 03:33 PM

 
The PIP case manager stated that DLA is only reinstated when they have messed up; ie there has been a procedural error.  He said that it was PIP policy but could not tell me the relevant PIP guidance etc.

Interestingly we have been given a similar ‘explanation’ by a CM today (in our case the issue was failure to return the PIP2 within the 1 month time limit).

I am assuming yours is a DLA to PIP migration?

Failure to attend and good reason are set out in PIP Reg 9 & 10 and PIP(TP)Reg 13. If the DWP do not accept ‘good reason’ then DLA is terminated under TP Reg 13(1)(a)or(b)(i). I am struggling to see what the practical difference is between a decision under (a) or (b) - may be the difference between attending an assessment / returning PIP2 and a requirment for any other reason to attend a DWP office / supply any other type of information?

If the DWP did not accept ‘good reason’ for failing to attend then DLA will stop. This is an challengable decision (and claimant should also make a new claim in case good reason is notaccepted at MR/appeal?). I don’t see where ‘DWP messed up’ (‘official error’ as described to us) comes into ‘good reason’.

In our case DWP extended the time limit for return of the PIP2 and client now has an appointment for an assessement (so they have accepted client complied with the requirements) and at the same time are arguing that he did not comply and have made a decision to stop DLA under TP Reg 13(1)(a).

PIP CM’s appear to be entering the world of Kafka frequently inhabited by HMRC decision makers!

Redscooby
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Welfare Benefits at Mary Ward Legal Centre, London

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The plot thickens - the CM has now said that the decision that was made not to accept her reasons for non attendance that was initially refused was changed when the client contacted them and gave favourable evidence.  However they cannot reinstate the DLA as there has been a decision to stop it and that “there is no provision in law” to reinstate DLA.  Also the client requested a MR but that as she has been referred for an assessment due to the good cause being accepted the MR will stay as an outstanding dispute until a decision has been made on PIP….............I am definitely in an episode of the twilight zone and my client is feeling suicidal.

Redscooby
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Forgot to add the guidance the CM gave which I haven’t looked at yet is DM Guidance Chapter 5 “Transitional provisions” and PIP Reg 13 (2) & Reg 17 (2)(b).

Peter Turville
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[in haste]

I would argue that if they have revised the PIP Reg 9 decision and accepted good reason they must also revise the decision to terminate DLA under TP Reg 13 - in effect the ‘negative determination’ under PIP Reg 9 has been ‘unmade’ for the purposes of TP Reg 13.

Looks like you also have an interesting legal challenge! I suggest that the MR must proceed and should not be ‘stayed’ pending the outcome of the assessment.

If a challenge is successful any award of PIP should be made from the date DLA was stopped TP Regs 13(2) & 17(3)(a) - but that does not assist claimanst in the short term.

Maybe the real issue is that having terminated DLA there is no administartive way of re-instating it due to limitations of the IT?

[ Edited: 5 Feb 2016 at 04:56 pm by Peter Turville ]
Redscooby
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The guidance is:

Negative determination is revised or successfully appealed
P5055 Where for any reason an assessment determination is made on a claim by a transfer claimant because
1.
the negative determination is revised or
2.
there has been a successful appeal
and if the result of that determination is that PIP is awarded1 then P5063 applies. PIP will be backdated to the day after DLA ceased2.
1 PIP (TP) Regs, reg 13(2); 2 reg 17(2)(b)
P5056 Where P5055 applies and the claimant is successful, they shall be treated as if they had been entitled to PIP from the day after the DLA terminated1.
1 PIP (TP) Regs, reg 13(2) & (3)