PIP claim declined with pending DLA appeal.

Hi all,

Our service has a client with an outstanding DLA appeal (new claim declined Dec 12) pending a tribunal date.

It has recently come to light that the appellant without consulting us for advice made a PIP claim in June 2013 which has been declined on grounds that the claimant does not meet the new past presence test. We think this decision is correct on the face of it.

Our issue is that the DWP have made a supplementary submission to the Tribunal arguing that because of the negative PIP determination, the tribunal only have power to make a DLA award to a date 28 days after the DLA pay date following the date of the negative PIP determination, citing reg 17 of the PIP (Transitional Provisions) 2013.

We think they are pulling a fast one and that if the DLA appeal is successful reg 4 of those regs kicks in and retrospectively invalidates the whole PIP claim as the client would then be a ‘DLA entitled person’ on the date of the attempted PIP claim and thus barred from claiming PIP until 28/10/13. We are not sure if reg 6 has any influence on an initial reading.

Any thoughts or other opinions are more than welcome.

Thanks,

Steve Murphy.

Hmmm, I see where you are coming from but unfortunately I think that the DWP interpretation is correct - it certainly seems to be their policy intention that DLA (subsequently awarded on appeal) will be overridden by a PIP claim pending appeal, whether the PIP claim is successful or not. Have you seen paras 5116 to 5119 of the Advice for Decision Makers? http://www.dwp.gov.uk/docs/admp5.pdf

The implications of your line of reasoning could result in an overpayment of PIP for some claimants, if the DLA appeal is eventually successful but the amount of DLA awarded is less than the amount of PIP. (For example if a claimant was awarded standard rate PIP daily living but then subsequently awarded DLA lowest rate care in respect of the same period, if the DLA entitlement overrides/voids the PIP claim as you are suggesting then the claimant would have had an overpayment of PIP.) I agree that it’s more likely to affect people the other way round, though.

Presumably there isn’t any question of your client being covered by the EEA co-ordination rules?