Wrong points allocated

Client has an award of ERDL, ERM but the points don’t really correspond to his difficulties. Obviously I don’t want to challenge the actual award but will it raise problems next time when we are trying to argue for points which we didn’t contest in the first award?

I think I worry too much :-(

I don’t think you do. I think it’s a hugely significant issue with PIP that once people get the correct rate; the fact they got it for the wrong points is not something they want to address and yet, if you don’t, the lack of points for the right things will later on be presented a change of circs. and so on. Hard to persuade a successful conversion case to challenge but I am now trying wherever I can to encourage new claimants to challenge by working through the potential implications with them.

My fear is that clients will lose something in the challenge. The unacknowledged difficulties(for Communicating Verbally) however, are made very clear in the form and supporting evidence so I could point this out as being in the initial ‘conversion’ but ignored if it proves to be an issue next time.

Are you saying there’s no evidential basis for some of the points.  I’m not sure what you mean by “don’t really correspond to his difficulties”?

unhindered by talent - 13 July 2015 12:41 PM

My fear is that clients will lose something in the challenge. The unacknowledged difficulties(for Communicating Verbally) however, are made very clear in the form and supporting evidence so I could point this out as being in the initial ‘conversion’ but ignored if it proves to be an issue next time.

I think it’s our job as welfare rights advisers to have the knowledge to be able to acknowledge that there is always a risk, but, and I think this is a very big “but”, that part of our role to be able to make a decent fist of assessing this risk. The conversation with a client that starts and ends with “there is a risk you could lose what you have” to me is incomplete, irresponsible advice. Heard it too many times over the years and I make no apologies for saying it does my head in.

I see part of my role as to be very clear in my head what the client should get; why and how. If it’s wrong then the client should have some reason for the faith I can fix it.

None of that’s a pot shot at you by the way, if you have a case for points that haven’t been awarded and you’re satisfied that the award is correct in other ways then you should have faith in your ability to make that case as it’s the only way a client will have faith in you. Provided the client understands the risk and understands that, if it does go wrong in some way, you will be standing by them all the way and assisting with the challenge I have found many clients willing to take that risk (which is often very small by the way).

I tend to be personally affronted by awards of benefit that don’t match my expectations. I don’t mean I challenge everything mindlessly. More that I make an assessment and if I am wrong then I want to know why and learn from it. The number of WRAs who come out of appeals wondering why a client got more than the WRA was expecting is a worrying thing to me.

I explain to my clients that if the end result is an award of the correct points which falls short of their current award and we have challenged it long and hard to UT, FTT and maybe even back again, then no award is most probably the correct award and it’s better to have that as the final outcome than to have an award for a few years and get hit with an overpayment when someone else inevitably does bring an aspect into question. Some go ahead and some quit but I can always point to the successes as a way to persuade others to continue having sensible regard to the so-called risk.

I think my record was 9 years and 3 Commissioners decisions before we finally got an award of any DLA. I was outraged by the DLA award as the lack of HR MC was just appalling on the facts of the case. FTT adjourned for a medical at the clients home. I attended and sat their smouldering in a smiley sort of way and not at all being intimidating and we got what should have been there 9 years earlier.

I am about to beat my record by the way…

I’d be reluctant to attempt to disturb an award the client was happy with unless there was a clear mistake or ignorance of primary fact involved in its making.  As we know, DLA and Pip decision makers have a wide margin of appreciation in finding secondary facts such as which descriptors apply.  Unless they step outside the bounds of reasonable judgement as per Moyna, I’d be reluctant to interfere.  I appreciate there may be problems later down the line if answers on a new PIP2 don’t appear to support the basis upon which the existing award was made.  But that’s only likely to happen where the original decision was based on ignorance/mistake or where there has genuinely been a change in the person’s needs.

Tom, the points awarded were valid (if a little on the mean side). He scored 13 points with nothing for Communicating Verbally, which I would argue is not to an acceptable standard as he has Tourette’s and can mumble and stutter.

Also a lesser descriptor for Engaging Face to Face. I’d say he needs social support, they said prompting.

I do take the point that we should be able to quantify the risk somewhat. With DLA I was able to do that but with PIP I am not confident that the right result will be attained eventually. Maybe I’m just not experienced enough with the legislation in PIP but colleagues have gone to Tribunal thinking they would get points and have come out with less than they went in with.

This client wrote to David Cameron about the process and I suspect the DM was very careful about their choices which is another reason it worries me to challenge it.

unhindered by talent - 13 July 2015 09:00 AM

..will it raise problems next time when we are trying to argue for points which we didn’t contest in the first award?

I think you might be worrying too much.  I thought you were suggesting he’d got points that he shouldn’t have got and vice versa but if it’s just a case of him wanting more points then the DM who in future does the renewal decision could put that right and s/he would be under no legal obligation to agree with the original DM on exactly the same primary facts.

‘Wrong points’ was maybe a bit misleading. The points he did get were for actual difficulties, just not as generous as I’d believed he should get.

I think I can confidently argue that his verbal difficulties were there on paper from the start but unacknowledged in the scoring.
He was overdosing on meds to cope with the assessment process. I think any further uncertainty might finish him off altogether.

I worry about the first PIP fraud case and how fraud and error will use the points system as more ammunition to the clients detirment. (my spelling is bad)

Never thought of that

unhindered by talent - 13 July 2015 01:57 PM

Tom, the points awarded were valid (if a little on the mean side). He scored 13 points with nothing for Communicating Verbally, which I would argue is not to an acceptable standard as he has Tourette’s and can mumble and stutter.

Interesting one in itself. I am assuming considerable detail has been left out of the above as Tourettes, mumbling and stuttering could be argued to be to an acceptable standard if he was communicating clearly enough. Personally I’d be looking at reasonable time as well.

My thoughts were on the time factor too. With tics and barks it takes him time to finish BUT he managed to hold a conversation with both PIP and ATOS on the phone so that’s maybe arguable from their point of view.

Yes, that does sound to me that there is an ability to communicate and that therefore the issues to address will be the time etc.