Dodgy grounds for triggering a migration from Indef DLA to PIP ?

I have just picked up a case at SSCS1 appeal stage. Client was on High High DLA and condition worsened yet further so he thought he had to inform the DWP. He did this and they promptly triggered a migration to PIP. He had a home based assessment and was awarded ERDL and SRM (both rates upheld at MR). Now appealing loss of ERM and Mobility Car.
I am awaiting medical evidence and full papers to assess and advise but do we have any grounds to challenge the original decision to trigger the PIP migration in the first instance ? He was already on High High so reporting a worsening would not arguably have given any grounds to assume that there was a change in his entitlement (unless of course he said something in the phone call that lead the DWP advisor to think otherwise).

As far as I understand it, once a claimant has put their above the parapet (as it were) by notifying a change of circumstances, then a migration to PIP is automatically triggered.

As we know the points system for PIP means that those who are restricted by physical health problems with their mobility will often struggle to convert HRM to ERM.

I hope you can get good medical evidence for your client.

The problem you may have is that there may have been a ‘change in condition’ which itself could be grounds for possible supersession.

To trigger the conversion there has to be information that would lead someone to believe that there would be a change in component; see reg 2(1) of the transitional provisions; where your client was in receipt of a max award and indicated he was worse that should not have triggered the conversion.

Now reg 21 of the transitional provisions extinguished the right of appeal against the suspension of DLA however it doesn’t extinguish the right of appeal against the termination of the award as required by reg 17 so on my reading there’s jurisdiction for an appeal Tribunal to reinstate the old DLA award on appeal.

To my mind the ERDL and SRM (based on moving around 20-50 metres) confirms that there was no change in his condition - both reflect the HRM/HRC award of DLA - the only change is that because it was assessed under PIP and the moved goal posts this has denied him ERDL and hence his right to continue on Motability (as it has for so many people) So the award in itself could arguably ‘prove’ that there was no change in condition to justify triggering PIP in the first place. I wonder if I should request the recording of the telephone call that triggered all this, would it be likely to be available ?

Jol - 20 May 2015 11:07 AM

Looking at Reg 3 of the PIP(TP) Regs, does paragraph 3(1) not give the DWP carte blanche to invite a person to claim PIP instead of DLA whenever they choose and without reason or justification? So even if a migration was incorrectly triggered in the first instance, the DWP could simply rely on the powers in para 3(1). I may well be wrong, but my reading of this paragraph suggests it does give the DWP very broad powers.

Cheers

Jol

reg 3(5) tells us that on notification of a change of circs the Sec State must invite a person to claim PIP. That compulsion overrides the discretion at reg 3(1). It would be rendered otiose if you read it the other way round.