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PIP, renewal claims, planned interventions & tribunal jurisdiction
Client was awarded PIP by a tribunal (in Sept 14) for a period to 26/6/15. She was sent a new PIP2 to complete in Jan 15 (it remains unclear exact date of issue). F2F assessemnt on 27/4/15. Decision follows dated 1/5/15 to make nil award from that date (ie before end of existing award). Client appeals. Appeal submission presents case as nil award on a new claim decision (ie no reference to previous award etc). Hearing adjourned to address various legal issues as below and DWP directed to produce further submission.
Further submission from DWP now confirms the process was a ‘planned intervention’ under PIP Reg 11 and not an invitation for a renewal claim under UC etc. (C&P) Reg 33(2).
DWP also appear to be arguing that Reg 11 is a ‘stand alone’ provision that allows them to ‘review’ an award at any time for any reason and does not require a revision / supersession decision under any other decision making provisions. Also that UC etc (C&P) and UC etc (DA) Regs do not apply to PIP!
As the award originally made to 26/6/15 has now ‘expired’ (removed 1/5/15) client cannot now make / be invited to make a ‘renewal claim’. If she now makes a new claim there would be a gap in any award made from 1/5/15 - date of new claim.
The questions that arise (which we have requested DWP make a further submission to address) include:
- Is Reg 11 a ‘stand alone’ provision (and on what legal basis is no other decision making provision required to be engaged)?
- What is the jurisdiction of the tribunal - is it limited to looking only at the period 1/5/15 - 26/6/15?
- Or, can it extend the existing award and / or, in effect, treat the planned intervention as a ‘renewal claim’ and make a further award?
- If it is limited to 26/6/15 only, assuming it allows the appeal for this period, is the claimant required to make a new claim and what happens to potential entitlement for the period from 26/6/15 to date of new claim.
Given that DWP appear to be using the ‘planned intervention’ process as a matter of routine this cannot be an isolated case where the ‘planned intervention’ process overlaps with the ‘renewal claim’ period and DWP do not make clear (in initial decision notice, MRN or submission) which process / decision has been used, the legal basis for it or implications for the claimant and the legal issues in the MR/appeal process.
Given that an existing award could also be terminated early on renewal claim (or other action) using the normal supersession provisions it would appear where an existing fixed term award is terminated at an earlier date - advisers will need to identify whether a decision has been made following a ‘planned intervention’, renewal application or other grounds for revision / supersession and advise a claimant to make a new claim for PIP, before the date the existing award was due to expire, if PIP is terminated from an earlier date.
Simplification?
Have other advisers encountered the above senario?
Doesn’t Reg 26 of the UC, PIP, JSA & ESA (D&A) Regs (ie SI 2013 No. 381) effectively give them the power to do a supersession if they have received further medical evidence in a PIP case? Up to date regs are here: http://www.legislation.gov.uk/uksi/2013/381/pdfs/uksi_20130381_301114_en.pdf
They don’t need to show grounds - although obviously if claimant argues no change from previous assessment then the previous papers are relevant evidence.
It puts supersession arguments in PIP cases on same footing as ESA cases where there has been a new medical examination.
They don’t need to rely on Reg 11 of the SS(PIP) Regs as being an independent ground for changing a decision- a point on which I think they are wrong.
However, if I am right about Reg 26 then basically produces a similar results.
In terms of your other questions:
1. As this is a supersession decision you are appealing then in has ended the previous award from that date.
2. The Tribunal can make any award the SSWP could have done under Reg 26 and Section 10 SSA - eg can award top rate for both for as long as you want.
Depressing to have to give them the argument they should have used…...
[ Edited: 22 Sep 2015 at 12:37 pm by Martin Williams ]- Is Reg 11 a ‘stand alone’ provision (and on what legal basis is no other decision making provision required to be engaged)?
The principle of finality in section 17(1) SSA 98 still applies to Pip so that an award can only be altered by supersession, revision etc. Any Reg 11 determination will have, therefore, to be embodied in an outcome decision.
- What is the jurisdiction of the tribunal - is it limited to looking only at the period 1/5/15 - 26/6/15?
Its jurisdiction is limited to whatever legal powers the DM had on 1/5/15. -see paras 24 & 25 of R(IB) 2/04.
- Or, can it extend the existing award and / or, in effect, treat the planned intervention as a ‘renewal claim’ and make a further award?
On 1/5/15, the superseding DM was not bound by the original DM’s decision re the 2 years’ fix. That quite clearly was demonstrated by his ending the award before 26/6/15. It follows that the tribunal standing in your DM’s shoes is equally not bound and could extend the award beyond 26/6/15. That would of course be a supersession.
Whether it was within the DM’s legal power at the 1/5/15 to treat the Pip2 completed in Jan 2015 as a new claim under Reg 33(2) C&P Regs 2013 is less clear, depending I think on whether the Pip2 could be classed as a “form authorised by the SOS” for the purpose of making a new Pip claim under Reg 11(1)(a) C&P Regs. If it could, then because the Pip2 was submitted within the 6 months before 26/6/15 the DM on 1/5/15 could have treated it as a claim made under Reg 33(2) and made a renewal award effective from 27 June. And if the DM could have done that, the tribunal would have exactly the same power standing in his shoes.
- If it is limited to 26/6/15 only, assuming it allows the appeal for this period, is the claimant required to make a new claim and what happens to potential entitlement for the period from 26/6/15 to date of new claim.
Thankfully, I don’t think it is so limited.
[ Edited: 22 Sep 2015 at 12:57 pm by Tom H ]Martin , Tom - thanks for your legal input. I didn’t include my arguments as I see no reason to assist the DWP to provide an adiquate submission to the tribunal!
Do either of you have practical experience yet of ‘planned intervention’ outcome decisions and impact on renewal claim process? I would suggest clients /advisers faced with a ‘planned intervention’ nil award decision (given that the process generaly starts about 12 months before a fixed award is due to end) will need to initiate both an MR/appeal and new claim.
Begs the question why DWP are using planned interventions in so many cases when a renewal claim is due soon after anyway? And why the decision notices/ MRN /appeal sub. don’t make it clear its a planned intervention rather than renewal claim decision. Almost seems like a deliberate policy to confuse claimants as to what is going on in practice!
I’m interested in others experience with planned intervention decisions as client will be asking her local MP (DC) to raise her case with the SSWP.
DWP if someone is reading this I look forward to your call!
[ Edited: 22 Sep 2015 at 02:09 pm by Peter Turville ]Peter, sadly I don’t have any experience of planned interventions to date but I think you’re right to worry and it’s undoubtedly something we’re all going to see at some point, probably often. I agree it’s a dilemma deciding whether to submit a new claim. It seems, however, that it’s only a problem where the tribunal either dismisses the appeal or, if allowing it, chooses not to extend the period of entitlement beyond the original fixed term. I’d like to think in the latter scenario most tribunals would address the duration of any awards they make in addition to the components/rates of Pip, especially if the tribunal is aware that the original fixed term has, at the date the tribunal sits, already expired. The irony, of course, is that any new Pip claim made subsequent to the appeal risks turning any favourable tribunal decision which has been prepared to extend the fixed term into an award for a fixed period, expiring the day before the date of decision of the new claim.
[ Edited: 22 Sep 2015 at 04:16 pm by Tom H ]I also have no experience of these at present (just starting to get appeals on PIP first time claims here let alone later events…). Sorry.
I agree it’s a dilemma deciding whether to submit a new claim. It seems, however, that it’s only a problem where the tribunal either dismisses the appeal or, if allowing it, chooses not to extend the period of entitlement beyond the original fixed term.
I would suggest a negative planned intervention decision raises a slightly different senario to that where a tribunal only makes an award on a new / renewal claim for a fixed passed period (see my earlier thread). Although the practical issues are similar.
For negative planned intervention decisions it would usually be neccessary in order to protect the claimants interests to make a MR and a new claim - unless one could be 100% confident the MR/appeal would succeed and award would be extend? But as you say a decision on the original decsion at MR/appeal could be affected by a proceeding decision made on the new claim. Its the same as has always been the case with DLA/AA following a nil decision - inc. cases where client had already done both before they seek advice! As ever (good luck with) timing, judgement and a crystal ball are required!
I can’t think of an easy answer to the back period only award by a tribunal issue as its depends on crystal ball gazing as to how long the challenge process will take and what decsion a tribunal might make. Its similar to old HRT decisions - advise a claimant to make regular new claims to protect their interest because one could never advise from what date DWP/a tribunal would accept HR. So for PIP make regular new claims for PIP in case tribunal only award for a back period (not particuarly practical)??
I think you’r correct that these kind of issues are going to arise more frequently as PIP ‘rolls out’.
However, if there weren’t such long delays with claims/decisions/MRs/appeals such tactical / practical issues would arise much less frequently (and my brain wouldn’t hurt so much so often!).
[ Edited: 23 Sep 2015 at 02:53 pm by Peter Turville ]Peter - has the appeal been heard yet? If so any outcome?
Peter - has the appeal been heard yet? If so any outcome?
Yes, appeal allowed - 8 points SRDL - but see http://www.rightsnet.org.uk/forums/viewthread/9034/P15/
Once all the info. was ‘assembled’ it was clear the decision had been made under UC etc.(DA)Reg. 26(1)(a) “SSWP has received evidence from a healthcare professional” (despite the submission presenting it as a decision on a new claim). In other words the same procedure that applies for re-assessment under the WCA.
At a recent TUG meeting the regional Judge advised that issues with the poor quality of submissions for PIP have been raised with DWP.