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Forum Home  →  Discussion  →  Disability benefits  →  Thread

DLA to PIP and a missed medical - MR requested and good cause accepted but DLA payments not reinstated

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JPCHC
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I’ve seen that this issue has come up before so just wondering whether anyone has had any joy getting DLA payments reinstated? This client should have a decision on his PIP shortly but I’m interested in what you think about their view they can’t pay. 

My colleague had spoken to the Case Manger who just said the client had been referred for another assessment but they wouldn’t make a decision on the MR until their was a PIP decision…


I’ve pasted below the response from the Complaints Resolution Team. 

“Apologies the first email was sent in error.

As stated in my second email although we have accepted good cause and have reopened the Personal Independence Payment (PIP claim) and are currently considering the case to make a decision on PIP entitlement, we are unable to reinstate Disability Living Allowance (DLA).

We can only reinstate DLA if there has been a procedural error. Unfortunately there have been no errors on this case and the Personal Independence Payment (Transitional Provisions) Regulations 2013 Reg 13, have been applied correctly.

I can confirm that once a decision has been made, if Mr X is entitled to PIP, his award will be backdated to the day after his DLA was terminated.

I appreciate that this may be a disappointing decision, however the Regulations have been applied correctly and Mr X should receive a decision on his PIP claim shortly.

I hope this explains the current position of the claim and the Regulations followed.”

Mr Finch
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We’ve had the same issue and I disagree with the DWP’s reading of it.

The relevant part of regulation 13 requires that ‘a negative determination is made.. under regulation 8’. A negative determination can only stand if there is no good cause. If good cause is later accepted, that determination falls away and the termination of DLA should also be revised with it, as the necessary conditions for such a termination are no longer met.

Colin Hannon
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Hi , I am dealing with a case currently which is a similar scenario to your case , the client has chronic & severe MH issues , received a letter from PIP stating he failed to attend a PIP assessment , they also text him to prompt him . Neither any appointment letter nor text was received . Have agreed to reopen PIP claim and have issued the client with a new PIP assessment , but the decision to reinstate the clients DLA is pending a decision , after ringing DLA for the umpteenth time I was also told unless there was a DWP procedural error the DLA is unlikely to be reinstated ? 

It’s obvious the DWP will say by sending a letter and reminder text they have followed procedure , but I disagree , the client is well known to the DWP and so is the clients historical MH problems . Surely safeguarding comes into it so why no telephone call or visit which is the guidance for ESA ?
I am quite happy to take this to tribunal but in the meantime I have a client 10 weeks short of middle rate care & low rate mobility , now getting buy on food bank vouchers . Let’s work together on this issue and go for goal

Pete C
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Mr Finch - 25 November 2016 09:18 AM

We’ve had the same issue and I disagree with the DWP’s reading of it.

The relevant part of regulation 13 requires that ‘a negative determination is made.. under regulation 8’. A negative determination can only stand if there is no good cause. If good cause is later accepted, that determination falls away and the termination of DLA should also be revised with it, as the necessary conditions for such a termination are no longer met.

I succeeded in using this argument at an appeal about two weeks ago but the DWP have asked for an SoR,

Watch this space….......

Dan_Manville
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I had one of these over the summer; I agree with Mr Finch’s analysis.

PIP even told me that DLA would go back into payment; instead they backdated the PIP.

Pete C
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I have just heard that DWP are sending my case to the UT, with any luck the local judge and the UT will see the poor foundation for DWP’s views and reject the application- I’ll update as and when I hear anything.

bristol_1
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What do we think about when the client is already on PIP and misses a medical - and good cause is accepted on MR - and the claim is sent back to the assessment provider - should payments of PIP also be reinstated at the previous rate until a further decision on entitlement is made?
Correction - this does appear to be happening in practice.

[ Edited: 8 Mar 2017 at 09:25 am by bristol_1 ]
Pete C
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I have just had a letter to say that permission to appeal has been granted to the Secretary of State.

The UT are saying that the decision was not reviewed at this stage as it was arguable that it was not Parliament’s intent that Regs 13 &17; would operate to disentitle a claimant from getting DLA after the ‘good cause’ decision has been overturned.

In my view this is correct, if Parliament had wanted these Regs to operate in that way then they could have included something to that effect in the regulations- it is after all a fairly typical and predictable scenario that a Good Cause decision might be overturned by a Tribunal.

The fact that they did not include anything or later amend the regulations seems to me to indicate that they had no intent that they would have the effect that the Secretary of State feels they have.

It remains to be seen what the Secretary of State’s response will be. I would hope they might do the decent thing and concede that their interpretation of Regs 13 &17; is not supported by the actual wording of the Regulations.

Pete C
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A quick update. My client has just rung me to say that they have had a letter from DWP to say they are not pursuing the appeal and will pay arrears of DLA into her account tomorrow.

roe
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We should appeal these decisions as we are receiving more and more where Case Managers are making the decision without reviewing. A decision is not made on DLA claim but on the PIP claim and they are hiding behind the “procedural error”

Dan_Manville
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Bump

I don’t suppose anyone got the case ref for Pete’s case? We’ve got another one that’s likely to go to the wall.

Cheers

neilbateman
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Pete C - 24 April 2017 08:39 AM

A quick update. My client has just rung me to say that they have had a letter from DWP to say they are not pursuing the appeal and will pay arrears of DLA into her account tomorrow.

It looks like the DWP realised that given the UT’s comments, they were likely to not only lose, but end up with caselaw which shows that all their standard practice to date was unlawful.  Sometimes it’s good that they seek leave to appeal!  Pride before a fall.

I did have one of these cases myself, but as the period involved was just six days and I had almost immediately got in a new claim to safeguard the client’s position.  Good cause was later accepted and DWP wrongly awarded PIP for that period, it was just the difference between six days’ PIP SR mobility and HR DLA mob, we are appealing the PIP decision itself rather than argue about £30.86.

Mick Quinn
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Dan Manville - 27 November 2017 11:15 AM

Bump

I don’t suppose anyone got the case ref for Pete’s case? We’ve got another one that’s likely to go to the wall.

Cheers

I could use Peter’s ref as well coz PIP are still playing stupid burgers

Paul_Treloar_AgeUK
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Pete has left the forum for the moment.

Pete at CAB
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Paul_Treloar_AgeUK - 27 November 2017 05:14 PM

Pete has left the forum for the moment.

Hi all, i’m back again in my new job .Unfortunately the case file for that particular appeal is with my previous employers and I no longer have access to it. I think that Neil may have it right, the DWP took it no further because of the risk that precedent might be set. As there was no precedent then the case ref probably wouldn’t be of much use anyway

Regardless of precedent the argument is pretty straightforward. It wasn’t my idea at all,it was posted somewhere else on Rightsnet (I expect Daphne can find it) and I just put it in at the end of the hearing, the judge had a look at the regs and agreed with my submission

Stuart
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Judge Mesher has confirmed in a case published today that DLA can be reinstated where good cause is accepted for failing to attend PIP transfer medical -

‘Since the decision disallowing entitlement to PIP has been set aside, the basis for the application of regulation 13(1)(a) of the Personal Independence Payment (Transitional Provisions) Regulations 2013 (see paragraph 10 above) falls away, because there is no longer a negative determination under regulation 9(2) of the PIP Regulations in existence. It is perfectly clear from the terms of the notification letter of 22 July 2016 that the Secretary of State’s decision covered both PIP entitlement and the termination of entitlement to DLA. The claimant’s appeal against that decision must therefore be regarded as covering both those aspects of the decision. Accordingly, my substituted decision sets aside the termination of entitlement to DLA after 9 August 2016. Payment of the amount due under the existing of award of DLA from 10 August 2016 onwards must now be made unless and until either that award terminates under its own terms or is brought to an end by supersession, a PIP assessment determination is made (regulation 17 of the Transitional Regulations), another negative determination is made or there is a failure to comply with some other requirements (regulation 13(1)).’ (paragraph 37)

https://www.gov.uk/administrative-appeals-tribunal-decisions/om-v-secretary-of-state-for-work-and-pensions-pip-2017-ukut-458-aac

[ Edited: 14 Dec 2017 at 10:22 am by Stuart ]