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PIP review - Where decision is advantageous to claimant - Backdating rules???
I have been supporting a client - who has had a bit of a nightmare with their PIP review process, so I will try to summarise as best I can;
-PIP review sent out to them in Nov 2020
-Requested extension on return date
-Sent form off before return date
-PIP didn’t receive so ended PIP claim.
-Client didn’t realise until got support, luckily they had scanned their review form and so we sent this in, and had to do MR and then appeal on failure to return decision. This was lapsed.
-In this lapsed decision they explained they would initiate PIP review process again.
-We chased PIP and they said no review in progress, as a decision was made when they lapsed the appeal. Had several calls with CM’s and they agreed this was in error and they reinstated PIP review process.
-Finally client had this review assessment
-Decision came back and their award increased from Std DL to Enhanced DL/Enhanced Mob, they backdated this to Dec 2021.
I can’t seem to figure out why they have used the Dec 2021 date. I had looked on other discussions and there seemed to be a suggestion that actually as this was a review initiated by PIP that they don’t backdate at all and just go from date of decision. (this was in a discussion from Oct 2022)
However I found the below info:
The Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013
-Para 18. Where the superseding decision is advantageous to the claimant and is made on the Secretary of State’s own initiative, the decision takes effect from the date on which the Secretary of State commenced action with a view to supersession.
And in the DM guidance
-A4365 Where a DM supersedes on their own initiative to deal with a change of circumstances and the result is advantageous to the claimant the supersession takes effect
2. for PIP,
2.1 the date on which action was started with a view to supersession e.g. the date the review form was issued or
2.2 where the required period has not been satisfied, from the date on which the conditions for a higher rate of PIP was first satisfied
ADM A4: Supersession, suspension and termination (publishing.service.gov.uk)
Wouldn’t the above suggest that a PIP review is technically them initiating a supersession - and so the backdating should technically go to the date the review form was sent out?? Which in this case would be Nov 2020.
When I spoke to PIP they said I could put in an MR on the date the backdating went from, however I don’t want to do this unless I know with 100percent certainty that I am right….
Thanks
I can’t point to any authority on this but I’ve always interpreted the regs in the same way as you.
I think the DWP prefer to supersede on grounds receipt medical evidence, so tend to make decisions which apply from a later date than the application (date of the assessment).
If you get this sort of issue at appeal, there is normally a standard invitation to the Tribunal to explain themselves if they consider an earlier supersession date is appropriate ie they accept that the change had occurred as reported at the date supersession applied for.
I’ve had Tribunals go both ways on this, but it is definitely possible/appropriate to award from the earlier date.
The questions in relation to a favourable supersession are:
(1) Is it appropriate to supersede on the basis of new medical evidence (reg 26 D&A) or change of circumstances (reg 23 D&A)?
(2) If it is appropriate to use reg 23, then what is the effective date? which will be either - D&A Regs sch 1:
(a) The date on which the change of circumstances occurred if it was reported in time or reported late with good reason (para 15, reg 36)
(b) The date of notification of the change if its a late report otherwise (para 14)
(c) The date on which action with a view to supersession was commenced by the SSWP acting on their own initiative (para 18)
You can try and argue that the DWP ‘commenced action with a view to supersession’ by sending him a review form. I think its a rather ambitious argument. But in any event you would be suggesting that the supersession should take effect from either the date of the change or the date of reporting the change.
It may take an appeal to get the DWP to set out in full what it thinks was the decision making process in this case. But I imagine a strong possibility is that it will say that the lapsed appeal was against a reg. 26 (2) UC, PIP etc (D&A) Regs. decision - i.e. a decision to supersede where there has been a ‘negative determination’ for a failure to return the review form without good reason (see reg. 8 (3) PIP Regs).
And then much may depend on what the basis of that revised decision was - was it an acceptance that the form had been posted back by the claimant but not actually received? Or was it received but then mislaid by the DWP?
Depending on the precise answer to that, the DWP might try to argue that the effect of the revision was only to revise the reg. 26(2) decision that ended the award - it did not, in other words, have the effect of reviving the planned review process. That had come to an end. And following from that, it might argue that the Secretary of State didn’t then use her own initiative to supersede the existing award until the review process was initiated for the second time - which presumably was December 2021?
Whatever the merits of that argument, I think you might have a fall-back argument - though this will depend on the particular facts;
1. Where a superseding decision is advantageous to a claimant and is made on the basis of a change of circumstances, it takes effect from the date of change, so long as notification is made within a month of that change (see para 15. to Sch 1 of the UC, PIP etc (D&A) Regs) or the SoS is satisfied the conditions in reg. 36 are satisfied. Otherwise, if the change is notified late, it takes effect from the date of notification - Sch. 1, para. 14.
2. Either way, what is crucial is effective notification. It really does not matter whether the claimant telephones the PIP helpline and asks for a supersession form to be sent out or whether they disclose the change of circumstances in the context of a review form. I would argue that in the latter case, so long as there is clearly enough by way of the claimant’s statements in the review form to indicate a change of circumstances - and so long as the subsequent decision accepts that there has indeed been a change, the effective date has to be (at the latest) the date the form was received by PIP.
3. Applying that to your case, I would imagine that as part of the revision and appeal process that resulted in the award being reinstated you sent PIP a copy of the review form that you had retained? Once that was received by PIP, the claimant had disclosed a change of circumstances…...so I think there’s a strong argument that the effective date of any subsequent superseding decision has to be that date, at the latest.
Does that make sense?
Thanks everyone for their input on this one.
PIP lapsed the appeal at the end of Nov 21, due to my colleague finally sending in the scanned copy of the PIP review form and medical records at the beginning of Nov 21. So I guess I could understand if PIP backdated to the date they saw the review form for the first time, as obviously it was never received by them previously (hence why the claim had ended).
I feel like there is no significant harm in putting in a MR for this recent decision, solely challenging the length of backdating.
I guess it seems like they could probably concede and backdate to Nov, but they might really fight their corner and their tribunal might follow the same reasoning - that as PIP never received the PIP review form prior to Nov 21, in which the client declared their change of circumstance, then backdating is restricted to this date. However, might as well try and see if I can get it backdated to when they initially sent out the review form.
Thanks
Just wanted to provide an update on this case.
Put in an MR, and this came back with the same decision - and actually in this letter there was no reasoning on why they were sticking to this arbitrary date of Dec 2021.
Lodged a PIP appeal, and provided a submission as supporting evidence at this stage.
The basis of my submission was to highlight
-The Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations [2013 - Para 18] states “Where the superseding decision is advantageous to the claimant and is made on the Secretary of State’s own initiative, the decision takes effect from the date on which the Secretary of State commenced action with a view to supersession.”
-Decision Makers guidance; ADM A4: Supersession, suspension and termination [A4365] “ Where a DM supersedes on their own initiative to deal with a change of circumstances and the result is advantageous to the claimant the supersession takes effect … 2. for PIP, 2.1 the date on which action was started with a view to supersession e.g. the date the review form was issued or…”
I lodged the appeal on the 31/1/2023 and received a call yesterday from PIP conceding and agreeing to backdate till Nov 2020.
So I think definitely worth doing where you have clients who might find their review dates are also not going back all the way to the date they were initially invited to review. I think we might see this a lot, especially with how long PIP reviews are taking.
I’ve just been successful for a client in similar circs where he had returned his AR1, recorded delivery, so aware it was received Dec 21, but review only carried out in June 22 which didn’t change his award, I assisted in requesting MR and ER Mobility duly awarded at MR but only from June 22. Appeal duly entered using similar information as above and PIP appeal lapsed within 2 weeks with award now from Dec 21. Are the PIP decision makers deliberately trying it on or are they truly incompetent!
I’m curious about some of the details of this issue too.
In my client’s case DWP ‘decided on XX of March 2021 to start action to review her entitlement’. I don’t know when the review form was sent by DWP, but it wasn’t returned until October 2021. Decision applies from August 2022.
I have evidence that her health was worse by March 21 and that it had worsened again by October. Do you think there is remit in arguing it should take effect from the earliest date?
I think definitely worth challenging - I didn’t need to supply any evidence that the clients health was worse from when they were sent the PIP review form. I just argued that they had declared that within the PIP review form (I guess with my client they had actually filled it out and sent it off, but for whatever reason it didn’t get to PIPI)
However I think it is worth using the same arguments - quoting the regs and the DM guidance.
I’m curious about some of the details of this issue too.
In my client’s case DWP ‘decided on XX of March 2021 to start action to review her entitlement’. I don’t know when the review form was sent by DWP, but it wasn’t returned until October 2021. Decision applies from August 2022.
I have evidence that her health was worse by March 21 and that it had worsened again by October. Do you think there is remit in arguing it should take effect from the earliest date?
I would certainly be asking for it to be paid from October 21 at the latest.
I’m curious about some of the details of this issue too.
In my client’s case DWP ‘decided on XX of March 2021 to start action to review her entitlement’. I don’t know when the review form was sent by DWP, but it wasn’t returned until October 2021. Decision applies from August 2022.
I have evidence that her health was worse by March 21 and that it had worsened again by October. Do you think there is remit in arguing it should take effect from the earliest date?
So, a bittersweet conclusion:
First hearing was adjourned as there was no PO and the tribunal wanted DWP’s view on the timing issue.
Second hearing: Annoyingly the judge seemed to not have given much thought to the issue prior to the hearing, relying instead on the PO (who fortunately had some grasp of it and supported the below conclusion). Is it too much to expect that tribunals prepare to avoid issues that has already caused an adjournment? :)
The appellant was awarded SRDL+ERM. However, they had had an award of ERDL+SRM until August 2022 (we had sought ERDL+ERM).
Overall outcome is beneficial to the appellant, so the tribunal applied the decision from the earliest date in March 2021, relying on para 18 of sch 1 of the D&A regs. Meaning the backdating to 2021-2022 only gives them the ~£10/week difference.
There was a small mountain of medical evidence that they were entitled to ERDL also, and I can’t really see what the panel relied on to make a different finding, but that ship has sailed as the appellant isn’t in a state to pursue this any further. They are worse now anyway, so will cross that bridge with ADP.
First hearing was adjourned as there was no PO and the tribunal wanted DWP’s view on the timing issue.
Second hearing: Annoyingly the judge seemed to not have given much thought to the issue prior to the hearing, relying instead on the PO (who fortunately had some grasp of it and supported the below conclusion). Is it too much to expect that tribunals prepare to avoid issues that has already caused an adjournment? :)
The appellant was awarded SRDL+ERM. However, they had had an award of ERDL+SRM until August 2022 (we had sought ERDL+ERM).
Overall outcome is beneficial to the appellant, so the tribunal applied the decision from the earliest date in March 2021, relying on para 18 of sch 1 of the D&A regs. Meaning the backdating to 2021-2022 only gives them the ~£10/week difference.There was a small mountain of medical evidence that they were entitled to ERDL also, and I can’t really see what the panel relied on to make a different finding, but that ship has sailed as the appellant isn’t in a state to pursue this any further. They are worse now anyway, so will cross that bridge with ADP.
“Yikes” to all of that.
1 - First hearing - should the DWP view not already have been in their response and, if not, then “tough luck”?
2 - Second hearing - tribunals now have the double whammy of getting papers electronically and not necessarily having enough clerks to upload them in a timely manner. The NW of England currently borrowing Scottish clerks for example. The DTJ may simply have not had the paperwork for as long as we would like to think or indeed “at all”.