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Assessment without appointee
Hi
I am currently assisting a client with a PIP appeal. They were previously in receipt of the enhanced rate of both daily living and mobility. Their mother is their appointee. The review assessment was undertaken by telephone with just the claimant present (ie appointee not there). Their mobility was reduced from enhanced to standard. We have appealed and are waiting for the DWP submission.
I know that the guidance is that the assessment should not have taken place without the appointee - but does that have any weight in law?
The submission was due on 22 December so is late. What is people’s experience of this issue? Are the DWP likely to set aside the decision (and pay backdating), and then conduct an assessment with the appointee present? My gut feeling is that they had no evidence to reduce the award.
Thanks
I’d agree with you instinctively, but I suppose there could be circumstances in which there is an appointee in place only for the purposes of “managing” the claim/managing the payment of benefit - i.e. not necessarily because the disabled person lacks capacity entirely and/or has no useful or accurate insight into their condition. In the latter case, I think it could be argued that what the disabled person says themselves about their condition can carry some evidential weight/must not automatically be disregarded.
As you say, there would be nothing to stop DWP revising its decision and then re-assessing, this time in the presence of the appointee. And if the existing award of enhanced rate both components did not have a massive amount of time left to run, it’s certain that is what DWP will do - i.e. what the best outcome would be if a challenge to an assessment without the appointee was accepted. So depending on how easy it might be to rubbish the assessment and to obtain evidence showing that enhanced rate mobility continues to be the appropriate award, I might just go down the route of challenging the outcome decision (whilst maybe complaining about the process) - that would have the added advantage of leaving enhanced rate daily living and standard rate mobility in place whilst MR and appeal is pursued - and presumably that has been awarded for another 3-5 years minimum?
Hi JayKay,
The assessment is null and void as the appointee was not present. Here is the extract from the DWP PIP Assessment Guide of April 2023.
One thing to check though is to ask the DWP agent whether there is an appointee registered on the DWP CIS Searchlight IT system. It is found under the Relationships tab. ( I used to make these checks myself )
.
Where a claimant has an appointee, this will be flagged in
the initial referral to the AP. Where an appointee has been
nominated to represent the claimant, the claimant must not be
instructed to attend a consultation by the AP. This is because
they have been deemed incapable of engaging directly with the
DWP or its contracted APs. Instead, and only if a consultation is
deemed necessary, the AP must send the invite to the
appointee only. However, it should be noted that the named
appointee, be this a corporate or individual appointee, can
nominate another person to represent them at any consultation.
The assessment is null and void as the appointee was not present.
But what are you proposing should be the practical effect of this nullity in terms of the appeal? That the HCP report should not be admissible as evidence? Or that it does not constitute ‘medical evidence from a healthcare professional’ so that there was no power to supersede the previous decision under reg. 26 (1)(a) of the UC etc. (D&A) Regs. 2013?
As we are very often keen to point out in other cases, DWP guidance is not the law, though it may be persuasive in the context of an appeal. I think there are two options;
1. An argument that the HCP report in this case does not constitute medical evidence for the purposes of supersession under reg. 26 (1)(a) and that there is therefore no power to supersede just might conceivably be one that could succeed. I think that will be a difficult argument and would require a greater degree of expertise than I feel able to offer. My own view is that it won’t succeed, but I could be wrong. But what I would say is that in practical terms, it’s probably one only worth making if the supersession decision in this appeal is one which reduced ERM to SRM a couple of years earlier than would otherwise have been the case - i.e. because then, if that argument were to succeed, the claimant would have an award of ERDL and ERM in place with maybe a year left to run by the time the dust has settled.
2. But I really think that because of the difficulties with arguing the above and with arguing the report is not admissible as evidence, a far better approach would be to get the tribunal to attach little weight to it.
That might be because of inconsistencies or inaccuracies in the report itself, or because the nature of the disabled person’s health problems resulted in their overestimating their ability to move around or plan and follow journeys. But you’d need to establish that - whilst also being aware of the potential risk in rubbishing the HCP report too much unless there’s other very good evidence to establish entitlement to ERDL and SRM that has been awarded.
I’m not suggesting that it is ‘right’ that the DWP has obtained the report without the appointee being present - I’d absolutely pursue a complaint about that as far as possible - but it’s important not to lose sight of the outcome we want to achieve, which is to have the disabled person’s award of ERDL and ERM restored and for that to happen as soon as possible. Simply showing the tribunal that the qualifying conditions for that award continue to be met is likely to be the easiest and quickest way of achieving that.
Probably also worth noting that the same section of the assessment guide also says;
1.15.19 The appointee should be considered in line with guidance about companions being present at consultations. Consultations should predominantly be between the HP and the claimant. However, the companions may play an active role in helping claimants answer questions where the claimant or HP wishes them to do so. This may be particularly important where the claimant has a mental, cognitive or intellectual impairment. In such cases the claimant may not be able to give an accurate account of their health condition or impairment, through a lack of insight or unrealistic expectations of their own ability. In such cases it will be essential to get an accurate account from the companion.
so even where there is an appointee and they are present at the assessment, DWP guidance clearly contemplates that it is the claimant/disabled person who will very often be answering the HCP’s questions about their conditions and the effects of these.
I think for the tribunal - and particularly for the issue of the weight to be attached to the HCP report - I would want to be clear about the circumstances in which it came about that the appointee was not present. Were they notified of the assessment? If not notified, were they in any event aware of it (i.e. did the claimant tell his mother?). Did the appointee decide not to be present? What exactly happened?
Notification today that appeal has lapsed as DWP have changed decision in claimant’s favour. I did suspect that this would be the outcome, and that the DM would realise when producing the paperwork that they would not succeed at appeal.
Result.