× Search rightsnet
Search options

Where

Benefit

Jurisdiction

Jurisdiction

From

to

Forum Home  →  Discussion  →  Disability benefits  →  Thread

escalation numbers for PIP?? and thoughts please

LJF
forum member

Benefits caseworker - Manchester Citizens Advice Bureau

Send message

Total Posts: 143

Joined: 12 July 2010

anyone have these?
asked for an urgent call back twice and still not had it
thanks in advance

if anyone would like to cast their thoughts in the meantime -
cl migrated from DLA to PIP - missed medical as housebound - appealed - accepted good cause - sent back to ATOS to arrange medical - we sent GP report that he needs home visit - however severe MH problems and potentially aggressive so ATOS refused to visit at home but he cant come to them - they invited him for medical - which he missed - it has been sent back to DWP 4 weeks ago and still sat on someones desk and nobody ring me back and client threatening suicide.

he cant go to them, they wont go to him, ATOS said cant make decision off paper as not enough evidence as he hardly goes to GP, DWP just seem to make a decision refused as no good cause to miss medical.

should I be fighting for them to actually make an entitlement decision, but the claim form alone would lead to an award but they have no evidence to back this up - but even if they refuse it at least we have a decision about entitlement that we can appeal (rather than just good cause for medical appeal). not that I know what this will achieve as he wont go to a tribunal hearing either - maybe they could do a phone hearing though?

thanks

Benny Fitzpatrick
forum member

Welfare Rights Officer, Southway Housing Trust, Manchester

Send message

Total Posts: 627

Joined: 2 June 2015

Hi Linzi!

Try escalating it through his MP. That usually seems to get a response, even if it’s just the usual rush to avoid accountability!

Daphne
Administrator

rightsnet writer / editor

Send message

Total Posts: 3537

Joined: 14 March 2014

Hi Lindsay

I’ve emailed you the most recent list of escalation numbers I have for PIP - hope they’re of some use.

Daphne

Tom H
forum member

Newcastle Welfare Rights Service

Send message

Total Posts: 783

Joined: 23 June 2010

If the DWP have once again found that the client does not have good reason for missing the medical, the question that arises is: is that not an entitlement decision in itself?

Section 80(5) of the Welfare Reform Act 2012 authorises the making of regulations to provide “for a negative determination to be treated as made if a person fails without a good reason” to, eg, attend a consultation. (my emphasis).  Section 80(6) then goes on to define “negative determination” as a determination that a person does not, in effect, score enough points and/or doesn’t satisfy the 3months and 9 months tests.  In other words, a standard determination that a person doesn’t qualify for Pip.

The regulation made under section 80(5) is, as we know, Reg 9 Pip Regs 2013 which is as follows:

(1) Where it falls to be determined whether C has limited ability or severely limited ability to carry out daily living activities or mobility activities, C may be required to do either or both of the following–

(a) attend for and participate in a consultation in person;

(b) participate in a consultation by telephone.

(2) Subject to paragraph (3), where C fails without good reason to attend for or participate in a consultation referred to in paragraph (1), a negative determination must be made. (my emphasis)

(3) [provides that adequate notice of the consultation be given to the claimant]

The use of the word “may” in Reg 9 above obviously indicates that neither form of consultation is mandatory, otherwise it would have said “must”.  It also seems that the effect of the word “either” in the same reg is that a DM could insist on attendance in person, although there may be Equality Act implications if consideration is not given to whether a telephone consultation on its own would suffice. 

In any event, I think Reg 9 does not do what section 80(5) requires.  Under the latter, the person is deemed to have failed the assessment rather than, as Reg 9 suggests, having actually failed it.  Section 80(5) is obviously correct.  A tribunal applying Reg 9 in the way that section 80(5) requires might feel its jurisdiction is limited to considering whether there was a “good reason” for the failure to attend, even if it would have been willing to hold on the evidence before it, eg GP report, Pip2 and/or client’s oral evidence on the day that the client scored sufficient points to be awarded Pip.  In other words, because the decision under appeal only treats the claimant as if they’d failed the assessment, the tribunal cannot decide whether they “actually” fail or pass it.

However, I think a tribunal that did so restrict its jurisdiction may err in law.  The tribunal has exactly the same powers as the DM who makes the decision under appeal - R(IB) 2/04.  Now, obviously, the fact a tribunal is being asked to consider a failure to attend appeal means the individual DM has either not even considered whether the appellant qualifies on the available info or, if s/he has considered it, they’ve concluded that the claimant wouldn’t qualify.  Hence the need for a consultation in his/her view.  However, the correct question, applying R(IB) 2/04, is whether a DM could make an entitlement decision without requesting a consultation, not whether the individual DM did so.  And the fact Reg 9 does not make a consultation mandatory suggests a DM could indeed do so.  Consequently, a tribunal would have jurisdiction to do the same.  That doesn’t, of course, mean that it would be compelled to make an entitlement decision, ie whether the claimant scores sufficient points.  It might agree with the DM, for instance, that there was insufficient information to enable it to decide and, therefore, restrict itself to whether the claimant had good reason. 

I think the DWP’s defence against the above argument would be that the DM who decides whether a consultation is needed under Reg 9(1) above is not the same DM who makes the subsequent negative determination under Reg 9(2).  Consequently, the latter DM would be bound by the earlier decision of his colleague that a consultation was needed and, therefore, applying R(IB) 2/04 so would the tribunal.  Consequently, the tribunal would lack jurisdiction to re-visit the question of whether a consultation was, in fact, necessary in the first place. I don’t think that’s right.  DM2 must be able to overrule DM1, whether in reality s/he ever chooses to do so.  That’s simply because the outcome decision under appeal that embodies the negative determination under 9(2) must also include the determination under 9(1).  The latter is not a determination against which no appeal lies.  The word “must” in 9(2) would be relevant only if a tribunal found a consultation was necessary.  I could be wrong.

But if I’m right there are, obviously, implications for the constitution of the tribunal, ie a medical member would be required if the issue about entitlement was raised as part of the failure to attend appeal.

In the present case, I’d appeal the negative determination based on the failure to attend and, if the claimant is simply unable to attend the tribunal and a telephone hearing isn’t possible, I’d submit that the tribunal hear the case on the papers and, first, consider whether there is sufficient info to make an entitlement decision.  If so, then it should make that decision which would dispose of the appeal.  If the tribunal feels it hasn’t enough info then it should be invited to consider the good reason argument, although I appreciate that winning the appeal on that basis just puts you back to square one.  Although, you could ask the tribunal in that event to direct that the DLA be re-instated immediately including backdating on the grounds that a negative determination is needed to stop the DLA under the Pip Transitional Regs 2013 and such a determination cannot, under section 80(5) and Reg 9 above, be made where the claimant has been found to have good reason.

[ Edited: 26 Sep 2016 at 10:05 pm by Tom H ]
BC Welfare Rights
forum member

The Brunswick Centre, Kirklees & Calderdale

Send message

Total Posts: 1366

Joined: 22 July 2013

I would suggest that Atos needs to adapt its policy as a reasonable adjustment to fit around this client’s need. If that means a home visit with a Police Officer in tow (or preferably some other means of ensuring the safety of its staff) it really shouldn’t be beyond its wit to arrange that…

MaggieB
forum member

Dorchester CAB

Send message

Total Posts: 271

Joined: 11 October 2010

Daphne, we’ve always been told there are no escalation numbers for PIP, indeed I was told this last week by partnership manager… would you be able to email them to me. Thanks

Daphne
Administrator

rightsnet writer / editor

Send message

Total Posts: 3537

Joined: 14 March 2014

HI Maggie - I’ve sent you what I have but I think they are quite out of date

Mike Hughes
forum member

Senior welfare rights officer - Salford City Council Welfare Rights Service

Send message

Total Posts: 3138

Joined: 17 June 2010

Two pronged approach for me, possibly three.

1) Appeal the determination. I agree with Toms analysis.

2) This is an EA 10 challenge. Once EA 10 is raised with ATOS they need to come up with one of the legitimate exemptions as to why they can’t do a home-visit as a ‘reasonable adjustment’. As other contractors do so then it can’t be cost. Indeed, hard to think what it could legitimately be. Actually sending a letter before action based upon advice re: EA 10 should kick them into gear.

3) MP - hmm. Varies in my experience. Depends in part on the extent to which your MP is pro welfare reform (they’re all for it. “Something needs to change” don’t you know) but it’s the extent that matters. Also depends on DWP reaction. I’ve had too many cases where the intervention of an MP has resulted in a case slowing down because of the need to grab relevant documents and create a dummy file, and, all that results is a nice letter to the MP which treats them like a child; spends a lot of time explaining conditions of entitlement and ends with them explaining why they’re right anyway.

1) and 2) get results. 3) may do so.