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PIP review award ended by supersession
Cl awarded SR Daily Living award from September 2015 to December 2018. DWP notified her of award review in December 2017. Cl completed AR1 ticking boxes to state no change or condition worsened and added some further information re her needs. Cl attended assessment and subsequently received decision that her award had been ended. She has had MR refused and appealed.
Appeal submission by DWP states: “In this case the HP medical report identified an improvement in the claimant’s condition such that she is not entitled to the DL component… Pursuant to this decision, in determining the ground for supersession and the effective date, the DM had the option of seeking to identify a change of circumstances which the claimant should have notified. However as the evidence didn’t suggest there would be an easily identified change the DM decided not to investigate and instead used the report as grounds for supersession.”
The implication seems to be that cl ought to have notified them of change of circs and had DWP identified one she might be liable for o/p or even fraud?? The report effectively rejects cl’s statements and medical evidence as to her condition and HP believes she can carry out all activities. Comment for activities scoring points before are all in similar form: “-Although needed to use an aid or appliance to be able to either prepare or cook simple meal in previous PA4 and stated harder in the AR1. -MSO showed no restriction to upper limbs and lower limbs -Informal observations show she sit and stand unaided, no physical impairment -On social history she drives a manual car which support adequate strength in hip and knee movements to be able to access the oven safely”. The car is cited for almost all activities.
Is it worth arguing in submission that the supersession was improper given that the DM has just disregarded without giving reasons cl’s AR1 and previous report finding cl had needs and qualified for PIP? Can I argue that the second HP report is just another opinion and not medical evidence? Alternatively do I just go for reasons for points to be scored on activities?
I recently cited CPIP/2621/2016 (which itself is based on old case law) at tribunal recently with no problem, where at paragraph 14 it says the following:
“it was not enough simply to assume that the appearance of a new PIP assessment report provided an automatic ground for supersession of the original awarding decision under regulation 26(1) of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment Support Allowance (Decisions and Appeals) Regulations 2013 (SI 2013/381; “the D & A Regulations”). It could not simply be assumed that the second PIP assessment report in some way trumped the first PIP assessment report e.g. by virtue of being more recent. The Appellant as a matter of justice was entitled to an explanation as to why his award had been terminated ahead of time – see R(M) 1/96
and SF v Secretary of State for Work and Pensions (PIP) [2016] UKUT 481 (AAC) at paragraph 21.”
Thanks very much for the authority.
I’m just wondering whether I do cl any favours with this approach given the original award ends on 2 December 2018. The assessment has taken place and if we appeal on the activity points and the tribunal finds cl qualifies they can make an award with a new end date. If I run the improper supersession successfully they can just leave the original award running. In the latter case DWP could presumably either just sit back and allow the original award to expire leaving cl to apply again or initiate another review. Either way this would result in another assessment?...
I’ve found Tribunals to be very receptive to supersession arguments, but I have met Judges who have simply left the original decision in place, and others who have extended the original award period to enable a new claim to be made.
To be honest, I’m not sure which is the legally correct approach.
I normally make a note of the original expiry date and discuss making a further claim on a case by case basis, with reference to the likely hearing date.
I’ve also noticed in more recent appeal bundles a far more concerted effort to justify supersession, so perhaps DWP are beginning to notice how many appeals are being lost.
Sorry just a quick further question. Office policy is not to attend appeals but offer to draft a submission which is what I’ll be doing for this client. If I start with the invalid supersession argument should I then argue particular descriptors etc. (in the alternative or as a further issue or an invitation to tribunal to consider?) If she wins the first and they agree to look at merits but then conclude she does not score points could they refuse to reinstate the original award?
the tribunal judge may make findings which demonstrate that a change in condition has in fact occurred and this would necessitate a normal pip tribunal assessing the relevant descriptors. in these cases I make a sub as you suggested - comment on the invalid supersession (this reinstates the previous award which may come to an end soon so worth checking as a new claim may be required if argument succeeds) - then list which descriptors are in contention.
best of luck.
Thank you for very helpful advice.
I’ve found Tribunals to be very receptive to supersession arguments, but I have met Judges who have simply left the original decision in place, and others who have extended the original award period to enable a new claim to be made.
To be honest, I’m not sure which is the legally correct approach.
I have argued in other threads that this entire “invalid supersession” argument is both wrong in law and detrimental to the interests of claimants generally but evidently the point is not going anywhere any time soon and I have sworn off the topic…
However, if it is correct that a Tribunal can just set aside a supersession as invalid, then it follows that the original decision stands and the Tribunal can’t just extend it to allow another claim to be made.
To extend the award, the Tribunal would need to conduct a supersession - but the very heart of the argument is that it was inappropriate to supersede. You can’t have your cake and eat it too.