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Attendance Allowance pending PIP appeal

Advisor_1
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Byker Community Trust

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Hi, 2nd query today

I have a tenant aged 65 who was on DLA until late last year. He met the criteria for PIP migration and was invited to apply and the claim was refused. he was awarded 6 points for DL and 0 for mobility. standard action of MR and then appeal submitted. Date set for 07/03/17.

Client in the meantime has made a claim for AA as he is 65. He suffers with Epilepsy and COPD. He has seizures 2-3 times a month and so for PIP this is not ‘the majority of the time’, but as he explains, as he gets older, the seizures are causing more and more damage to his body and he is taking 4-5 days at a time to recover. He strains muscles and damages his joints etc as a result of seizures and he needs help as a result to dress and deal with a lot of the care needs in the days after a seizure.

Called AA today as it has been 10 weeks since he applied. They have said that they will not process his AA claim whilst PIP appeal is on going, as they will not award AA if PIP is awarded. I explained that they are 2 different benefits with differing qualifying conditions and that an award of AA would put a end date as such on the end of the PIP award if the appeal is successful (client however has already said that if AA was awarded he would withdraw PIP appeal as it would be unnecessary stress).

I take everything that the DWP say with a pinch of salt and just wanted to check if what they are advising is correct.

Elliot Kent
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Shelter

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I don’t think they need to hold off whilst the PIP appeal is decided, but I can see why they would. If an award of AA is made and then an award of PIP is made for the same period, the result will be messy. Entitlement to PIP is logically the thing which needs to be sorted out first so perhaps it makes sense to let that happen?

nevip
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The DWP were told to stop stockpiling claims back in the 1990’s, basically on the back of John Major’s citizens’ charter which introduced target times for the delivery of services.  For example, Income Support and Carers Allowance claims were often stockpiled while claimants were waiting for DLA/AA decisions, thus protecting backdating.  The Department were actually being quite helpful in this regard.  Hence, after stockpiling was stopped, the Claims and Payments Regulations were amended to reverse the affects.

Here, it seems that the claim is being stockpiled for the Department’s own administrative convenience.  If your client feels his claim for AA is more favourable than for PIP he should press for that claim’s immediate determination.

NAI
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Unclaimed Benefits Campaign, Middlesbrough CAB

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Maybe I have this wrong but my understanding that processing the AA claim makes the PIP challenge a closed appeal. The tribunal’s decision, whatever it is, applies only up to the point of the AA decision, whatever it is.

So the DWP not making an AA decision appears to be in the client’s interest.

Perhaps someone wiser than me could clarify this.

LJF
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I was under the impression if your dla stops because you try to be swapped to pip but refused. Then you can reclaim pip within one year and so wouldn’t have to claim AA

Neil
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LJF - 23 February 2017 08:54 PM

I was under the impression if your dla stops because you try to be swapped to pip but refused. Then you can reclaim pip within one year and so wouldn’t have to claim AA

This is only correct if the claimant was under the age of 65yrs as of April 2013,

LJF
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Neil - 24 February 2017 10:28 AM
LJF - 23 February 2017 08:54 PM

I was under the impression if your dla stops because you try to be swapped to pip but refused. Then you can reclaim pip within one year and so wouldn’t have to claim AA

This is only correct if the claimant was under the age of 65yrs as of April 2013,

Yes this client was under 65 then. Hence the reason to be migrated to pip.

stevemac
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Horsham CAB, West Sussex

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Morning all - similar to above but involves AA pending a DLA appeal

Client is 73 yo so PIP not a factor
Had an indef award of DLA h/r care and mobility - stopped after a fraud investigation - his appeal against this decision is still pending nearly 2 yrs on due to various factors

He does appear eligible for max AA award but if he claims the decision whatever this may be would then time limit the DLA award if his appeal is successful

I believe reading on a thread here that in limited circumstances it is possible to have awards of AA (care?) and DLA (mobility?) - yes/no/ wishful thinking!

Jon (CANY)
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stevemac - 07 June 2017 08:59 AM

I believe reading on a thread here that in limited circumstances it is possible to have awards of AA (care?) and DLA (mobility?) - yes/no/ wishful thinking!

Here’s the previous thread on AA and DLA co-existing, (which I think is different in principle to the PIP/AA interaction):
https://www.rightsnet.org.uk/forums/viewthread/10260/

Edit to add:
I will also quote from a recent case (where I was rep), CA/3399/2016:

12. The starting point is that AA and DLA are different benefits. However, they are not, as is commonly but mistakenly thought, wholly mutually exclusive benefits. As Frances Gigg points out, section 64(1A)(b) of the Social Security Contributions and Benefits Act 1992 precludes a person from being entitled to AA if they are entitled to “the care component of a disability living allowance”. Logically it follows that if claimants have an award of the mobility component of DLA (but not the care component) then they can also be entitled to AA (which, of course, has no parallel to the mobility component of DLA). Ms Gigg confirms that the DWP’s operational guidance contains instructions for dealing with such cases.

[ Edited: 7 Jun 2017 at 02:50 pm by Jon (CANY) ]
stevemac
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Horsham CAB, West Sussex

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Many thanks Jon - just to be clear (as I have never experienced this situation before)

If cl claims and is awarded AA and is then successful with his DLA appeal with tribunal awarding DLA mobility only then would this be paid in addition to his AA ?
If tribunal awards him DLA care (at same or higher rate than AA) and mobility then will his AA award be replaced by the DLA care award?
If he claims and is refused any AA , wins his DLA appeal and awarded both care and mobility would this have full effect or would the DLA care component only be paid until the day before the AA decision refusing benefit?   

Jon (CANY)
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Hi Steve, good questions, that I’m not confident to answer.

I can’t see anything to stop DLA Mobility only coming back into payment for someone who in the meantime has been awarded AA, and the two can run along together.

I’m less clear on what happens if DLA Care is restored. Does DLA Care will only run up to the AA decision, whichever way that goes? Or does s64(1A) of the SSCBA mean that a decision to award AA would have to be revised, once a decision to award DLA Care was made? In CDLA/754/2000 para 27, Commissioner Turnbull seemed to think both are possible outcomes.

As I said, I’m unsure about this, will be interested if anyone else has a view.

jasonb
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Lewes District CAB

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Hi wondering if there is any update on this.
Cl aged 69 was claiming PIP standard rate mobility component only. PIP review decision no component, she lodged appeal and also claimed AA.

There is merit in award of AA but not PIP daily living component. She received letter from Attendance Allowance Unit stating “You cannot claim both PIP and AA at same time” “If PIP appeal is succesful you with not be able to claim AA. If your appeal is unsuccessful contact to progress claim for AA”

Confused as thinking , PIP and AA are separate benefits with separate qualifying conditions and if the claim for AA was progressed and awarded the pending PIP appeal would become a closed period appeal from the date of the PIP decision to the award of AA.

Both PIP and AA would not be in payment at the same time as the Tribunals decision on PIP would apply up to the AA decision.

If she withdraws PIP appeal will AA claim be progressed.

No help on the AA phone line so have written to them any ideas.??