PIP renewal claim reduced without a decision notice being issued.

Hi my client had an award of enhanced daily living and standard mobility. We completed the renewal and the client just contacted me to say their payments have been reduced for the last two payments - so at least 8 weeks to a figure that looks like the standard daily living on its own. 

I phoned dwp and the person I spoke to confirmed that they couldn’t see that a decision notice had been issued so I asked them to process my enquiry as a complaint and reinstate the old award until a decision notice had been issued.

I got a phone call from someone saying they had spoken to my client who understands now what has happened - the decision was made but the notice wasn’t issued at the time and will be issued now.

I got a bit cross and said I didn’t think a decision had been made legally if there wasn’t a notice and could they please put the previous claim back in to payment.  He said he wasn’t a legal expert and would get someone else to phone me.  He said they always stop/change the payments before they send out the decision notice any way but my client has had lower (and incorrect) payments for eight weeks or more without the chance to challenge a decision that was never notified to them.

Can I insist that they reinstate the old claim for at least the period up to the date when they issue a decision notice?
Any suggestions welcome.

No. Failure to issue a decision notice does not invalidate a decision (assuming there has actually been a decision and that is properly recorded). However, the time-limit for requesting a mandatory reconsideration and appeal does not begin until the notice is issued.

I have an ongoing case (different benefit), where I am leaning heavily on Anufrijeva to argue for either arrears of benefit or a “proper” decision to be issued:

26.    The arguments for the Home Secretary ignore fundamental principles of our law. Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so. This is not a technical rule. It is simply an application of the right of access to justice. That is a fundamental and constitutional principle of our legal system: Raymond v Honey [1983] 1 AC 1, 10G per Lord Wilberforce; R v Secretary of State for the Home Department, Ex p Leech, [1994] QB 198, 209D; R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115.

[...]

35.    My noble and learned friend Lord Bingham of Cornhill has observed that the Home Secretary was under a public law duty to give notice within a reasonable time but that breach of this duty cannot nullify or invalidate his decision. I would question this conclusion. It is important to bear in mind that the breach involved a deliberate policy decision by the Home Office not to comply with the public law duty. This amounts to an abuse of power and ought to preclude the Home Secretary from relying on his unlawful conduct until notification has taken place. While generally an estoppel cannot operate against the Crown, it can be estopped when it is abusing its powers: HTV Ltd v Price Commission [1976] ICR 170, 185G-H, per Lord Denning MR; R v Inland Revenue Commissioners, Ex p Preston [1985] AC 835, 865D, per Lord Templeman; Laker Airways Ltd v Department of Trade [1977] QB 643, 707D-F, per Lord Denning MR and 709A-E per Roskill LJ, 769A-E. For this further reason I would reject the submissions made on behalf of the Home Secretary.

36.    I recognise, of course, that in some ways the appellant’s case does not merit great sympathy. But even in unprepossessing cases fundamental principles must be upheld. The rule of law requires it. In my view the appellant is entitled to recover income support until proper notification of the determination on 25 April 2000. I would therefore allow the appeal.

I must admit, neither DWP nor the tribunal seem impressed with my arguments so far, and the client’s award is being left in limbo.

NB, I wouldn’t dispute that the DWP can suspend payments if a doubt has arisen about entitlement. Also, I think they are entitled to supersede a PIP award with effect from the date when it seems the claimant should have reported a change. So in the end I don’t know how much there is to be gained in your case?