Deterioration

I am very aware that tribunal’s cannot take into account any change of circumstances which occurs after the decision date.
However - I am currently helping a client who as severe mental health problems.  She uses art as therapy and had been using her DLA to fund a studio space.  On migration to PIP all of her disability benefits stopped, and she can no longer afford the studio.  Her mental health has subsequently deteriorated to the extent that whilst she did have an open appointment with the Community Mental Health team, she now has daily visits from a CPN.  In this case, the deterioration is specifically linked to the fact that her DLA was providing her with the funds to afford therapy for her condition.
Is there any caselaw around taking into account the fact that the disability benefit may be paying for care/therapy, and the need to look what the claimant’s situation without the benefit being in place?

No, because there’s no requirement that they look at the claimant’s situation without benefit being in place.

Sounds like a new claim to me unless, within the required period, she had improved and on more than 50% of the days during the RP her health was poor. If she was well during the RP it’s broke biscuits.

Thanks Dan

I originally saw her just after the decision when her DLA was still in payment - and even then I think that she should have scored enough points to qualify.  Unfortunately the medical evidence from her CPN is all about how much she has deteriorated since the decision and I was trying to find a way of making it still relevant to the appeal.

However I am going to do a new claim as well - just to cover all bases.

I have quite a few clients with MH problems currently on MRC/LRM DLA awards where at the moment I expect them to be entering a cycle of refused PIP (which usually also means loss of SDP) - income reduces c.£130pw a week - they are unable to manage on this much reduced income and their MH deteriorates - new claim made for PIP which is awarded - client’s condition stabilises but return to beginning of the cycle when their award is reassessed.

If I’m right in this expectation then either the government is going to end up spending more on the extra costs of hospital treatment/CMHT engagement than they are going to save on the PIP cuts or the already stretched MH services are going to really reach crisis point as they start having to deal with a whole demographic who had previously been stable for a long time. Not to mention the impact on the well-being of these very vulnerable people.

The closest I’ve come to the OP situation was a client in supported housing who was claiming that he was independent with his ADLs. Prior to entering supported housing he led an extremely chaotic lifestyle, was self-neglecting and certainly would have qualified for PIP. My argument was that the tribunal should treat the general support provided by the housing provider as counting for prompting for the various areas that client had previously not been managing. Similar kind of argument to the recent ones re the supervision descriptors where there is a general need for supervision. Client won his appeal but I did not attend and it was not clear whether the tribunal accepted this argument or accepted the alternative suggestion that client may be underestimating the amount of direct prompting that he needed.

The short term savings from the removal of her disability benefits v the long term costs of increased input from the CMHT is precisely the conversation I have just had with her CPN.  Years spent getting her out of psychiatric units and stabilised in the community undone in the space of a one hour ‘assessment’.

Think you’re whistling in the wind to some extent with this one I’m afraid. Just as there are no strictures or requirements about actually spending DLA/PIP specifically on care and support services (hence why your client could use it to pay for studio space), there isn’t any provision within the regulations, let alone caselaw that I am aware of, to establish entitlement in this way.

You need to go back to the descriptors and see whether you can construct the basis of an award based on her mental health condition at the date of the refusal. I’m presuming from what you’re saying, the original PIP refusal is being challenged now?

That being said, I would also flag up an ESA client I had who was moved from support group to WRAG and who subsequently was required to attend JCP for WFI’s and who was then arrested and banned from said JCP offices due to his mental health difficulties. We were able to argue at Tribunal that the episodes at JCP demonstrated the risks of his being required to simply attend WFI’s as proof as to why he should be placed back in SG under reg.35. Difference scenario, I accept, but it does semonstrate how subsequent events can be used to illustrate prior risk if you see what I mean.

Further, as the required period is 3 months back and 9 months forward, her subsequent deterioration might provide an avenue to explore whether you could show she reaches the 50% benchmark for certain descriptors perhaps? This would be a more appropriate way to proceed in my opinion and is given some support by [2015] UKUT 584 (AAC) (para’s 26 and 27)

Was the CPN involved before the deterioration or are they a recent addition?

Whoops, sorry but just seen that I’ve repeated a lot of what other people have said, I’d written a reply and then had to go to a meeting.