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Forum Home  →  Discussion  →  Disability benefits  →  Thread

PIP and declaring disability to employer

Cathy Wells
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Advice Worker, Agnes Smith Advice Centre, Oxford

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Hi all, I’d be grateful for some help with this.  My client is reluctant to claim PIP because he thinks his employer will be notified if PIP is awarded.  I’ve never heard this before and I don’t think it’s actually true, as I can’t find any information on it, but just want to check this out before advising him on it.  He’s heard or read somewhere that the DWP/HMRC/someone routinely notifies all employers of this as a matter of course, and I just don’t see how it can be true, but just want to check I’ve got my facts right.

Also (and this is possibly more of an employment matter, but I’m hoping someone knows about this) it is correct that a PIP/DLA award means that the claimant *has* to state that they are a person with a disability when applying for jobs, rather than it being up to them whether or not to declare it?  Would it be a disciplinary matter if someone did not declare that they had a disability and then it came to light for any reason that they were on PIP/DLA?

I don’t really need advice on the general pros and cons of declaring disability to an employer, as my client has already made his own decision on this, but I’d be really grateful for info on the two practical issues above.

Thanks in advance for any info.

Cathy

1964
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Deputy Manager, Reading Community Welfare Rights Unit

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Can’t help on your second question, but I am quite certain the DWP don’t notify employers when PIP is awarded. Leaving everything else aside, there’s no question on the PIP claim form about employment so the DWP would have no way of knowing if a PIP applicant is employed anyway.

Surrey Adviser
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Benefits and debt adviser - Esher CAB, Surrey

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I’ve no definitive answer to your second query but it seems to me this is not necessarily a matter of whether an applicant for a job gets PIP/DLA.  Clearly, if there is a specific question on an application form about health etc. issues, or one asked at interview, the applicant could be at fault if it is not answered correctly. 

Also, even if the issue is not raised specifically the applicant could be at fault for not declaring any health issue which it should be obvious to a reasonable person would impact on ability to do the job they are applying for.  (To take a somewhat extreme example if someone suffers from vertigo & has a fear of heights to apply for a crane driver’s job without declaring it would not be reasonable.)

My own view would be that forcing an applicant to declare receipt of PIP/DLA could be seen as disability discrimination so I suspect it is not the case, but others may well know better.

Jon (CANY)
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Welfare benefits - Craven CAB, North Yorkshire

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Historically, the definition of ‘disability’ in employment law is not directly tied to any social security definition. As I recall, one of the justifications for making PIP a 12 month assessment period was to sort of bring it into line with the employment definition, but they are still two distinct and different tests. If a DLA award was all it took for someone to be owed a duty under the Equalities Act or the old DDA, then employment tribunals would have fewer hard decisions to make. If the employer’s question is simply “are you disabled?”, with no specific query on conditions or functional limitations, then I would think it just depends on (a) whether someone views themselves as disabled or not, and (b) on whether they think that’s any of the employer’s business.

Quoting from this Equality Act 2010 Guidance:

The definition of disability set out in the Act and described in this
guidance is the only definition relevant to determining whether
someone is a disabled person for the purposes of the Act. References
to ‘disability’ or to mental or physical impairments in the context
of other legislation are not necessarily relevant but may assist
adjudicating bodies when determining whether someone is a disabled
person in accordance with the definition in this Act.

In any case, there are now very restricted circumstances in which potential employers are allowed to ask about health/disability issues, under the new Act. I can’t really see where any of them would include asking about DWP benefit awards. There’s a lot of info on equalityhumanrights.com on this. Or see this pdf guide.

nevip
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Welfare rights adviser - Sefton Council, Liverpool

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Unless allowed by statute (not the case here) it would be a breach of confidentiality at common law for the DWP to do this and is actionable for a civil claim for damamges. 

On the second point, if it came to light that the person’s disability interfered with the ability to do his job then, subject to the employer’s Equality Act duties, the employer has a right to constructively dismiss him.  It would be highly unusual if the non disclosure of receipt of DLA/PIP, in itself, was a disciplinary matter. 

WillH
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I don’t think constructive dismissal is what is meant here (that is when someone is put into a position such that they have no choice but to resign).

It’s possible a capability dismissal might arise. But yes, that would be subject to Equality Act provisions requiring an employer to make reasonable adjustments, and not to directly discriminate. Indirect discrimination may also be unlawful, depending on the reasons for it.

In any case, no the DWP don’t tell employers about receipt of DLA/PIP, and as stated above, if they did that would be absolutely unlawful.

Don’t know the client’s circumstances but could be losing out on a lot of money (possibly WTC as well?)

Mike Hughes
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“My client is reluctant to claim PIP because he thinks his employer will be notified if PIP is awarded… He’s heard or read somewhere that the DWP/HMRC/someone routinely notifies all employers of this as a matter of course, and I just don’t see how it can be true, but just want to check I’ve got my facts right.

Is there a routine declaration to an employer? I suspect not. However, DWP do regular data cross matching exercises with large employers across the UK. That will involve disclosure of such things as receipt of ESA, Industrial Injuries and DLA/PIP to the individuals involved in that specific exercise. Confidentiality will obviously be essential but who is to say that’s how it works in reality. I’ve certainly come across people in employment whose right to DLA was challenged because they had not declared to DWP they had started work. Of itself it’s not a relevant change of circs. but again, in reality… suspension of award during investigation followed.

So, do they do it routinely? In the sense of “every case” then no. In the sense of “routinely” in a targeted manner then, yes, absolutely. Is “every case” likely to be the case in the future? I would think so. Right now however, it is not and your client has little to worry about. In any event it’s irrelevant to employers unless it affects a tax code; suggests fraud etc.

“... it is correct that a PIP/DLA award means that the claimant *has* to state that they are a person with a disability when applying for jobs, rather than it being up to them whether or not to declare it?  Would it be a disciplinary matter if someone did not declare that they had a disability and then it came to light for any reason that they were on PIP/DLA?”

You have no obligation to declare receipt of DLA/PIP and none to declare a disability. There is an expectation you would declare a full medical history and sanction if you don’t at the discretion of the employer (some would dismiss; some would enter a disciplinary process; some would think “what can we do to help?”; some would think “Equality Act”). However, capability is an issue that only arises once all other aspects have been explored (in theory at least).

It is symptomatic that most posters here have gone to capability first and qualified it with reference to the Equality Act rather than the other way round. That speaks very much to how most employers behave in practice despite their good words etc. It’s only fair to point out that many union reps. seem equally ignorant on such matters, which I find both terrifying and depressing.

Disability is a protected characteristic and, certainly at the application stage, it is often very much a positive to declare it. The law exists as it does because not everyone feels that way or wishes to declare their disability. Peoples views of that also change over time. The law also accommodates that at present. 

nevip
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http://www.dwp.gov.uk/docs/information-sharing.pdf

And disclosure has to be for a specific reason laid down in law, such as the prevention of crime.  In other words, it has to be more concrete than “we think he ought to know”.

Mike Hughes
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nevip - 22 April 2014 01:49 PM

http://www.dwp.gov.uk/docs/information-sharing.pdf

And disclosure has to be for a specific reason laid down in law, such as the prevention of crime.  In other words, it has to be more concrete than “we think he ought to know”.

The local authority bit of that speaks for itself really.

As far as “specific reason” is concerned then how specific is “fraud or error”? That pretty much acts as a justification for any disclosure as far as I can see.

nevip
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The issue of prevention of crime is largely about public authorities sharing information with each other and public authorities being allowed to access information privately held, such as bank account details, in order to prevent the defrauding of the public purse.  After all it’s not the DWP’s specific concern, and none of its business either, whether someone is withholding information from his boss about his personal circumstances (or even lying to him).  The entire nation would be under state surveillance otherwise and the HRA right to private life wouldn’t be worth the paper it’s printed on.  I’m not aware of any legislation that allows the DWP to give a person’s private information to a private body without their consent.

Mike Hughes
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nevip - 22 April 2014 02:14 PM

... The entire nation would be under state surveillance otherwise and the HRA right to private life wouldn’t be worth the paper it’s printed on.  I’m not aware of any legislation that allows the DWP to give a person’s private information to a private body without their consent.

Do you want to rethink that :)

So, this morning I left the house and was on CCTV after I turned the corner until I got to my bus stop. My smart pass will have logged which stop I got on at and it’s pretty obvious where I get off as you could deduce that from my Twitter feed and indeed my job title on here. Back on CCTV the moment I got off the bus and that continued even once I’d entered the workplace. Using my ID pass to get through the door will have clocked where I was and at what time. Then I logged on my PC and the really intense surveliiance begins :)

I’d say the entire nation is under state surveillance and yes that does raise fundamental HRA questions. Legislation isn’t necessarily needed to give private info. Meta data is given away all the time and goodness knows there’s enough literature out there explaining how individuals can be extrapolated out of that. I know you mean something slightly different but nevertheless… the claimant in this case has little to worry about on one level but, on another, we all do…

 

nevip
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Hi Mike

Yes, I know.  I was thinking along those lines as I was typing.  It would be more appropriate to substitute “DWP” for “state”.