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PIP awaiting Tribunal date / new Adult Disability Payment claim
I have a client who is waiting for a Tribunal date for PIP and has asked about claiming ADP (Scotland). Can he make a claim for ADP and if Tribunal make PIP award first then he could withdraw ADP claim? But if ADP was awarded before Tribunal date would he let DWP know so that PIP was only awarded up to ADP date? He’s concerned about reduced income and unsure of how long Tribunal date will take and then possibly having to start a new ADP claim then and wait another few months for that decision.
[ Edited: 20 Jan 2023 at 11:53 pm by AdviceShop ]Yes, the practical execution of events might be a bit different (e.g. SSS will likely vanish the ADP claim, rather than your client having to withdraw it), but the overall outcome will be similar to what you described.
Whether it is of any particular benefit depends how close you are to the hearing, the closer you get this will become more of an admin hurdle with less benefit.
EDIT: There’s also a worst case scenario where ADP is refused or awarded at a lower rate than PIP.
[ Edited: 23 Jan 2023 at 10:58 am by Va1der ]EDIT: There’s also a worst case scenario where ADP is refused or awarded at a lower rate than PIP.
I don’t think it will make a difference if the ADP application is refused (as there will then be no ADP award to interfere with any PIP entitlement), but I can see the problem if ADP is awarded at a lower rate
EDIT: There’s also a worst case scenario where ADP is refused or awarded at a lower rate than PIP.
I don’t think it will make a difference if the ADP application is refused (as there will then be no ADP award to interfere with any PIP entitlement), but I can see the problem if ADP is awarded at a lower rate
It’s not about the fact of no ADP award being made, its the fact of a decision being made that has refused entitlement.
EDIT: There’s also a worst case scenario where ADP is refused or awarded at a lower rate than PIP.
I don’t think it will make a difference if the ADP application is refused (as there will then be no ADP award to interfere with any PIP entitlement), but I can see the problem if ADP is awarded at a lower rate
It’s not about the fact of no ADP award being made, its the fact of a decision being made that has refused entitlement.
Yes, but can a decision to refuse ADP interfere with a decision on PIP? (other than being indicative?)
Yes, but can a decision to refuse ADP interfere with a decision on PIP? (other than being indicative?)
That’s the bit I’m not so sure about. Do the Scottish benefits have their own act/regulations for C&P and D&A?
Admittedly I hadn’t given this that much thought.
Tribunal can’t overwrite a new PIP decision. Doesn’t seem very political for them to effectively overwrite an ADP one.
Yes, but can a decision to refuse ADP interfere with a decision on PIP? (other than being indicative?)
That’s the bit I’m not so sure about. Do the Scottish benefits have their own act/regulations for C&P and D&A?
Yes: Social Security (Scotland) Act 2018
and regs for ADP:
The Disability Assistance for Working Age People (Scotland) Regulations 2022
Yes: Social Security (Scotland) Act 2018
and regs for ADP:
The Disability Assistance for Working Age People (Scotland) Regulations 2022
Thanks.
Para.10 of Sch.2 to the Regs says this:
Effect of determination on entitlement to Personal Independence Payment
10. Where a determination is made under paragraph 9(1) that the transferring individual is entitled to Adult Disability Payment, the transferring individual’s entitlement to Personal Independence Payment will cease on—
(a)the date their entitlement to Adult Disability Payment begins, or
(b)where paragraph 11 applies, the date their entitlement to Adult Disability Payment would have begun had paragraph 11(2) not applied to set an earlier date of entitlement.
which would back you up - it would only be an actual award of ADP that could interfere with an existing PIP award, which I find slightly strange but there you go. Unless there are other provisions that I have missed?
This is interesting.
The reason why a decision on a second PIP claim takes priority over an FtT decision on an earlier PIP claim is because the effect of s.17 SSA is that the SSWP decision on the second claim attracts finality. This does not seem to be a consideration in relation to the Scottish benefits and there doesn’t seem to be any equivalent. Instead, the position under s.27 SS(S)A is that a later determination of entitlement for a period (however arising, presumably) will override an earlier determination in relation to that period.
Beyond that, the general position under reg 4 ADP Regs seems to be that a PIP award is to be preferred to an ADP award, in that a person who is entitled to PIP is excluded from being awarded ADP. That is subject of course to the transitional provisions in schedule 2 of the ADP Regs (dealing either with people who are given notice of transfer or who report changes in circumstances) and to reg 52 which deals with people moving to Scotland, but none of that really seems to apply to this situation.
I think that the position might therefore be that the FtT dealing with the PIP award can just ignore the ADP angle entirely. If ADP is refused, the refusal doesn’t attract finality or curtail the FtT’s jurisdiction and if ADP is awarded, then the effect of reg 4 would be that any award of PIP would disentitle the appellant to that ADP. That would mean that PIP would go into payment, ADP would end and the transitional process would need to be followed.
But what do I know? I don’t deal with Scottish cases and have no real familiarity with the legislation so could easily be missing something.
What would happen in terms of recovery of an ADP award, if there’s an overlapping PIP award after a hearing?
I guess it would be irrecoverable under s.64 SS(S)A.
So, stars aligning, there’s a financial incentive to claim ADP while awaiting a PIP appeal.
I shuffled through the notes from the ADP national engagement sessions and found that I’d asked SSS these questions then (I think it was around the same time I asked a similar question to OP on here). SSS didn’t provide a meaningful answer (I don’t think they understood the question).
If the stars do align in this way I suspect a practical step from SSS would be to delay making a decision on an ADP claim until the tribunal makes it’s decision, but I don’t know if they have powers to stay a decision like this?
I’m just speculating, this is way past my understanding.
Beyond that, the general position under reg 4 ADP Regs seems to be that a PIP award is to be preferred to an ADP award, in that a person who is entitled to PIP is excluded from being awarded ADP. That is subject of course to the transitional provisions in schedule 2 of the ADP Regs (dealing either with people who are given notice of transfer or who report changes in circumstances) and to reg 52 which deals with people moving to Scotland, but none of that really seems to apply to this situation.
I think that the position might therefore be that the FtT dealing with the PIP award can just ignore the ADP angle entirely. If ADP is refused, the refusal doesn’t attract finality or curtail the FtT’s jurisdiction and if ADP is awarded, then the effect of reg 4 would be that any award of PIP would disentitle the appellant to that ADP. That would mean that PIP would go into payment, ADP would end and the transitional process would need to be followed.
But what do I know? I don’t deal with Scottish cases and have no real familiarity with the legislation so could easily be missing something.
I’m not sure that a PIP award is to be preferred to an ADP award - the provisions in Reg 4 of the DAWAP Regs that someone cannot be entitled to ADP if in receipt of PIP are mirrored by s 77(4) of the Welfare Reform Act 2012 - (someone cannot be entitled to PIP if already in receipt of ADP)
This makes me think that if ADP is awarded first, the Tribunal should only award up to the date the ADP begins. As to what would happen if the Tribunal are not aware of the ADP decision and made a decision that PIP entitlement continues after the ADP award date? I’m not sure
As far as I know DWP and SSS do communicate so hopefully someone (DWP/appellant?) would tell the Tribunal about the ADP.
What our understanding is, would be that if ADP is awarded whilst PIP appeal hearing is awaited and if the appeal is successful then PIP would only be up to the date of award of ADP. I have seen in submissions that PIP are aware that there is ADP interest so there is communication. I have also seen client’s reporting change in circumstances and the transfer to ADP is started rather than a review of PIP and ADP will then consider the change in circumstances. We advise that should PIP come into payment prior to ADP determination then client can withdraw ADP claim.
Two of my clients that started the appeal process due to no award but also claimed ADP were awarded ER both for ADP!
I’m not sure that a PIP award is to be preferred to an ADP award - the provisions in Reg 4 of the DAWAP Regs that someone cannot be entitled to ADP if in receipt of PIP are mirrored by s 77(4) of the Welfare Reform Act 2012 - (someone cannot be entitled to PIP if already in receipt of ADP)
This makes me think that if ADP is awarded first, the Tribunal should only award up to the date the ADP begins. As to what would happen if the Tribunal are not aware of the ADP decision and made a decision that PIP entitlement continues after the ADP award date? I’m not sure
I can see the argument for an FtT which is aware of the ADP award not to make a PIP award for that same period, but I think its a result of comity rather than any legal necessity in doing so. Arguably the ADP award is a circumstance post-dating the decision which ought not to be considered.
I suppose if the FtT did make an award covering the same period as the ADP award then it would be open either to the DWP to supersede the FtT decision and remove the PIP entitlement on the basis of s77 but it would be equally open to SSS to re-determine and remove the ADP award under reg 4 ADP Regs (or for both of those things to happen if you are unlucky). There doesn’t seem to be any obvious tie-breaking provision as to which one prevails.