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AA claimed while PIP appeal ongoing
my client has an ongoing PIP appeal, waiting for a hearing date, he now tells me he has claimed AA as he has passed pension age, AA has been awarded, what will happen re the PIP claim, if he wins his PIP appeal ??
Any PIP award can be paid up to the date of the AA award and then stops.
so if the Tribunal awarded enhanced mobility for example, it would only be paid up to the AA award, my client would then lose out on potential mobility award as there is none with AA !!!
Afraid so, sec.17 of the Social Security Act 1988 applies which says any decision made will be final and as the PIP decision relates to a period before the date of the AA decision, the AA decision making the award is the final operative decision for your client.
oh dear !!!
I think s.17 is not in play here- for that to bite then there would need to be a rule in PIP legislation which means a person is not entitled to PIP for any day when they are entitled to AA.
But there isn’t.
As with most pairs of benefits like this the exclusion works one way round only: entitlement to PIP excludes entitlement to AA but not the other way around.
So there is no equivalent in PIP legislation of s.64(1)-(1A) SSCBA 1992 (which stops someone getting AA where PIP awarded).
We have dealt with cases like this before - the FTT can make whatever award it wants. The DWP can then amend the AA award and treat it as paid on account of PIP etc.
Martin
ok Martin, I am advising my client to carry on with his PIP appeal as the hearing date is close anyway, I thought I saw something in CPAG that says if you get PIP mobility but not care you can also get AA , so both can be paid together, it implied you can’t get AA and PIP care components together,
its a mess anyway , if only clients would ask before they start banging in claims for benefits it would make life easier.
I think s.17 is not in play here- for that to bite then there would need to be a rule in PIP legislation which means a person is not entitled to PIP for any day when they are entitled to AA.
But there isn’t.
As with most pairs of benefits like this the exclusion works one way round only: entitlement to PIP excludes entitlement to AA but not the other way around.
So there is no equivalent in PIP legislation of s.64(1)-(1A) SSCBA 1992 (which stops someone getting AA where PIP awarded).
We have dealt with cases like this before - the FTT can make whatever award it wants. The DWP can then amend the AA award and treat it as paid on account of PIP etc.
Martin
Blimey, thanks for that Martin.
I think s.17 is not in play here- for that to bite then there would need to be a rule in PIP legislation which means a person is not entitled to PIP for any day when they are entitled to AA.
But there isn’t.
As with most pairs of benefits like this the exclusion works one way round only: entitlement to PIP excludes entitlement to AA but not the other way around.
So there is no equivalent in PIP legislation of s.64(1)-(1A) SSCBA 1992 (which stops someone getting AA where PIP awarded).
We have dealt with cases like this before - the FTT can make whatever award it wants. The DWP can then amend the AA award and treat it as paid on account of PIP etc.
Martin
Can I just check so I am absolutely clear on this Martin, in the situation you describe, once the PIP award is made by FtT, the AA award is terminated as basic condition of entitlement is no longer satisfied and so the PIP award continues in payment regardless. Does this happen routinely or does it require negotiation with DWP/
I think I was getting confused about reclaims for the same benefit and if I am correct in the above, it would be very useful to let our advisers know about this. Thanks.
it would be very good if the DWP do follow this line, I am also interested in the cpag advice that AA and DLA can both be paid, the AA for care and the DLA for mobility, still lots to learn on this stuff even though i\ have been doing it ofr ages !!!
I think s.17 is not in play here- for that to bite then there would need to be a rule in PIP legislation which means a person is not entitled to PIP for any day when they are entitled to AA.
But there isn’t.
As with most pairs of benefits like this the exclusion works one way round only: entitlement to PIP excludes entitlement to AA but not the other way around.
So there is no equivalent in PIP legislation of s.64(1)-(1A) SSCBA 1992 (which stops someone getting AA where PIP awarded).
We have dealt with cases like this before - the FTT can make whatever award it wants. The DWP can then amend the AA award and treat it as paid on account of PIP etc.
Martin
Can I just check so I am absolutely clear on this Martin, in the situation you describe, once the PIP award is made by FtT, the AA award is terminated as basic condition of entitlement is no longer satisfied and so the PIP award continues in payment regardless. Does this happen routinely or does it require negotiation with DWP/
I think I was getting confused about reclaims for the same benefit and if I am correct in the above, it would be very useful to let our advisers know about this. Thanks.
Resurrecting this and answering Paul’s question which I did not spot before (someone just emailed me re this thread so thought would complete here as well).
Paul- basically this is how it should work:
1. The DM or Tribunal who decides the PIP revision request (or appeal) is free to make an award for whatever period they want (they are not limited by any subsequent award of AA as there is nothing in PIP law that says such a limitation exists).
2. The DM will then need to revise the decision given in respect of AA so as to remove it (as it should not have been awarded as the claimant was entitled to PIP and s.64(1) to (1A) of Social Security Cotibutions and Benefits Act 1992 says one cannot get AA if entitled to PIP. The revision would be on ground of mistake of fact (PIP entitlement existed).
3. The DM can possibly treat AA paid as paid on account of PIP claimant should have been getting (and just pay the difference)- see Case 2 of reg 5 of the Social Security (Payments, Overpayments and Recovery) Regs 1988.
4. If AA not decided by time PIP is resolved then the AA claim would simply be refused (as conditions in s.64(1) to (1A) not met).
That is how it should work and what the law provides for. DWP may not take that approach - I have seen one case where the PIP award was time limited to day before AA started. That was challenged on basis award of AA was irrelevant to end date for a PIP award.
As this is the correct law then there is no “negotiation” with DWP- just challenge their decisions and get them or FTT to apply the law. You can’t negotiate a statutory rule (sorry this last bit is just grandstanding and not a dig…. I know that not what your question meant).
https://www.rightsnet.org.uk/forums/viewthread/18004 and this bit.
Martin what are your thoughts on a scenario in which a Tribunal awards PIP SMOB, and while the appeal was meandering on.
Before the actual hearing the claimant was awarded the lower rate of AA.
How should the parties proceed in this scenario?