PIP supersession - comparing previous and recent assessment reports

Hi All,

I was working on the submission today and came across the same problem I have seen before, wondering whether something could be done to challenge it in the wider perspective. I wonder if it is a problem of the wrong instructions given to the HCPs by the DWP guidance. I also wonder if it is me who is wrong here.

The issue:
Claimant had a PIP assessment in June 2019. Scored 0p in DL. Appealed and was awarded standard DL in May 2020.
Review of the award. Claimant indicates ‘no change in the review form’. PIP assessment in March 2023. Scored 0p in DLA. Appealed.
I am perusing the bundle and see the same matter for the x- time:

HCP in the assessment report compares the Claimant’s statements with the previous assessment report from 2019. The previous report is listed among the evidence and is the basis for the suggested descriptors; quote for the recommended points under activity 1:
‘1a in previous assessment, reports no change’.

Firstly, the ‘reports no change’ is regarding the review form in which Claimant indicated no change to the descriptors awarded by the Tribunal, not the original decision. So it is an assessor’s error.

Secondly, although I understand the assessor not having the Statement of Reasons to rely on how the decision on appeal was reached, isn’t the DWP’s responsibility to obtain all relevant evidence? The assessor is looking at reported restrictions in the wrong context and I do not believe it does not taint their recommendations.

The DM’s response to the appeal does exactly the same, they said ‘in determining the ground for supersession and the effective date, the DM had the option of seeking to identify the change of circumstances’ and then proceeds to include the table containing the needs indicated by the Claimant in the previous assessment report and compares it with the most current. Then it is said ‘The Appeal Tribunal accepted Claimant had difficulty with (...) as no statement of reasons was provided, no further details are available’.

I do get the fact of using the most recent assessment report as a ‘new medical evidence’ giving rise to the supersession.

But is it not erroneous to make determination based on the conclusions drawn from 2019; which conclusions were disputed and found to be inaccurate? Or does the previous report bear some sort of factual evidence as after all it is a Claimant’s own testimony to their condition. I would expect the report being used as a piece of evidence, but not the tool to point to the change of needs.

Please enlighten me

My reply to this guff is nearly always the same

1)The Tribunals decision was not appealed by the DWP so they must accept that the Tribunal was entitled to make the findings it made

2) The Tribunal has a medically qualified member and a disability qualified member so it is strongly arguable that they had far more expertise than the HCP who made the initial report.

3) The second HCP was unduly influenced by a report that was found to be flawed by the Tribunal which allowed the appeal. 

4) I inevitably invite the subsequent Tribunal to do likewise

Surely the claimant’s “no change” must be in respect to a) what the claimant said in their original PIP2 form and what they said to the HCP during the consultation report?

From the point of view of an adviser or rep, that then necessarily begs the question - even were those statements accepted as being entirely accurate, are they sufficient to establish entitlement? Of course, the fact that “no change” must be in relation to the claimant’s previous statements (rather than the HCP’s assessment) even if it is the case those previous statements would be enough to show entitlement if accepted, that does not necessarily mean there has not been a change.

It might be better if on re-assessment the HCP had access to;

- the original PIP2
- any medical evidence that was submitted in support of the original claim
- the previous HCP report
- any submissions made on behalf of/by the claimant in any subsequent appeal, including any additional evidence
- the tribunal’s decision, together with reasons

and if there was greater accessible advice provision so that a claimant on review had better opportunity to explain the effects of their disabilities and were thus able to say more than ‘no change’.

But even were all of that in place I’m far from convinced we would see better decision making and less need for revision and appeal. I think the real issue lies with a DWP decision making culture which is one which very often looks for reasons to disallow a claim or to reduce an existing award - and which does so in the face of the evidence that is available.

The pre amble in the AR1 includes the phrase “When we last looked at your claim”

They should really be referring to “your award” rather than “your claim” because a claim no longer exists once a decision is made on it.

Decisions of course can be revised or superseded and its axiomatic that implementing a Tribunal’s decision following a successful appeal is a revision, but the point I am making is that “no change” must mean no change since the last decision (or “when we last looked at your claim”)

It seems to me that some decision makers may be deliberately setting out to reverse Tribunal decisions when it comes to renewal or review and they use the process to restore the original decision that was successfully appealed

Thanks so much to both of you!
It would save SO MUCH TIME and public money if a different approach and directives were implemented within the DWP

Stainsby - 04 January 2024 05:17 PM

It seems to me that some decision makers may be deliberately setting out to reverse Tribunal decisions when it comes to renewal or review and they use the process to restore the original decision that was succesfully appealed

 

Yes! I often have the same impression when reading the appeal bundles.

Also, I agree, looking at ‘the award’ could prompt them to actually see the circumstances in their entirety where the Tribunal’s decision is treated as it should have been

Stainsby - 04 January 2024 05:17 PM

It seems to me that some decision makers may be deliberately setting out to reverse Tribunal decisions when it comes to renewal or review and they use the process to restore the original decision that was successfully appealed

I don’t disagree with that and very much suspect the same - but in practical terms, how further forward does that get us? I suppose I’m asking the same also in relation to your previous post in the thread - I’m with you, but my experience is there’s more required between your step 3) and step 4) - or rather, almost every tribunal I have encountered will want more.

To put it another way, I will argue that though reg. 26 (1) gives the power to supersede on receipt of medical evidence, it is still for the SoS to show that the previous awarding decision should in fact be superseded. And I will argue that the SoS has failed to do that. But is that enough? I’ve always felt it necessary, whatever the flaws I can demonstrate in the Department’s decision making, to independently/separately show that my client does in fact continue to meet the conditions of entitlement to the previous award*.

Perhaps, though, I’m being overcautious? If you’re saying that you very often do go straight from your step 3) to step 4) perhaps I need to reconsider my approach? It would certainly save me a lot of work….

(*Of course, another reason that I take the approach that I do is that it is very frequently the case that I’m not arguing the previous award should be maintained, but rather increased, so there’s that too).

I agree with you that there are far more than 4 steps to heaven in this game and to mix the songs there is a whole stairway to climb if you are going to win an appeal for your client.

I regularly have cases where the client has reported a worsening of their condition , the DWP then commission a PA4 report and a DM then rubber stamps the PA4 and the award is reduced

I have a whole raft of stock paragraphs citing UT decisions re Reg 11, 23, 26 and 31 of the 2013 Decisions and Appeals Regs, and I rarely if ever don’t need to use them in submissions