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Has todays tribunal decision ended clients current PIP award? Re: supersession issues…
Hi guys
Would welcome confirmation on the following if anyone can help -
Been to PIP appeal this morning. Client originally awarded PIP enhanced care and standard mobility at appeal on 10/08/2015. Award made from date of claim, 10/7/14, through to 09/07/2017.
DWP then got in touch last summer, 12 months before award due to end, to carry out a planned award review. Client awarded ERC only - only scored 4 points for mobility activities. Award made from 10/11/2016 - 26/10/2019. Client unhappy he had lost the mob component and chose to take this decision to appeal, which is where we were this morning.
Outcome is that tribunal set aside the decision of DWP of 10/11/16 - the decision the DWP made as a result of the re-assessment - as the tribunal considers that there were no grounds to supersede the existing award made by tribunal decision of 10/8/15.
Now I understand the above outcome, as it appears the DWP were not actually able to re-assess the decision made by the first tribunal without demonstrating some grounds, which they did not. What I want to clarify to my client is that they now need to get back in touch with the DWP and start a new claim, as the most recent DWP award decision has been set aside and the tribunal award re-instated, but this ends on 09/07/2017. So what is now his current award is due to end very soon and I cannot imagine the DWP getting in touch regarding any kind of renewal application between now and then?
Do you think this is the right approach as I have not encountered this before? As a side issue, does this now mean that planned interventions/award reviews can no longer be carried out, or does the need for grounds for supersession only apply to tribunal decisions made before a certain time? Apologies for my ignorance but due to other work pressures I am struggling to keep up to date on all the changes.
Many thanks.
Do you think this is the right approach as I have not encountered this before?
Many thanks.
Yes I do
As a side issue, does this now mean that planned interventions/award reviews can no longer be carried out, or does the need for grounds for supersession only apply to tribunal decisions made before a certain time? Apologies for my ignorance but due to other work pressures I am struggling to keep up to date on all the changes.
There is a discussion running elsewhere about whether (to all intents and purposes anyhoo) interventions can be carried out against Tribunal decisions. I have not, yet done the book work to contribute but being as I’m waiting for directions from FtT on that very point it won’t be long now…
[ Edited: 15 Jun 2017 at 03:05 pm by Dan_Manville ]
Many thanks Dan.
I need some advice too please? I have just received a call from a MH practioner, who was supporting someone at FTT today (PIP). During the start of the hearing, the judge stated that the claimant had been seen by a panel member walking to the hearing. They said that they will be looking at the whole claim, but because the member had seen them walking perfectly fine (they stopped 4 times) they may want to reconsider appealing. I have never heard anything like this?
As a side issue, does this now mean that planned interventions/award reviews can no longer be carried out, or does the need for grounds for supersession only apply to tribunal decisions made before a certain time? Apologies for my ignorance but due to other work pressures I am struggling to keep up to date on all the changes.
Many thanks.
UT decision in MR v SSWP (PIP) [2017] UKUT 46 (AAC) - CPIP/3556/2016 confirmed that a tribunal decsion can only be superceded under UC, PIP etc (DA) Reg 31 (ingnorance or mistake to a fact) or Reg 23 (change of circs). It cannot be superceded under Reg 26 - so called ‘planned intervention’.
Your client will now need to make an ‘advance claim’ for PIP before the existing award expires under UC, PIP etc (C&P) Reg 33(2) - the equivelent of the ‘renewal claim’ process under DLA. However, what is uncertain is whether the DWP will actually invite your client to make a ‘renewal claim’ or they will have do do so under their own initiative. Given that this provision is rarely, if ever, used by the DWP it seems unlikely they have any process to invite ‘renewal claims’ in practice (I have never seen a case where this provision has been used!)..
It will be interesting to see what happens if you client tries to make a ‘renewal claim’ when the existing award is still in payment and whether the PIP claim line understands that this is what your client must do. They may have a fight convincing the call handler that that is the correct procedure!
UT decision in MR v SSWP (PIP) [2017] UKUT 46 (AAC) - CPIP/3556/2016 confirmed that a tribunal decsion can only be superceded under UC, PIP etc (DA) Reg 31 (ingnorance or mistake to a fact) or Reg 23 (change of circs). It cannot be superceded under Reg 26 - so called ‘planned intervention’.
However the same Judge at paragraph 18 of TH v SSWP (PIP) [2017] UKUT 0231 (AAC) confirmed that MR is explicitly not authority for that point.
As far as I can tell, nobody has been able to provide any reason why reg 26 would be unavailable just because the earlier decision was made by a Tribunal. Equally, nobody can explain why reg 26 still seems to be available to supersede an ESA Tribunal’s decision but not a PIP Tribunal’s. MR doesn’t mention reg 26 at all - it seems to have been decided in ignorance of the provision.
Whilst MR has been used to the advantage of some claimants, it was only a matter of time until it was used to the detriment of a claimant - as it arguably has been here. I would be discussing with the client whether he wants to try and get it reviewed or set aside.
UT decision in MR v SSWP (PIP) [2017] UKUT 46 (AAC) - CPIP/3556/2016 confirmed that a tribunal decsion can only be superceded under UC, PIP etc (DA) Reg 31 (ingnorance or mistake to a fact) or Reg 23 (change of circs). It cannot be superceded under Reg 26 - so called ‘planned intervention’.
However the same Judge at paragraph 18 of TH v SSWP (PIP) [2017] UKUT 0231 (AAC) confirmed that MR is explicitly not authority for that point.
As far as I can tell, nobody has been able to provide any reason why reg 26 would be unavailable just because the earlier decision was made by a Tribunal. Equally, nobody can explain why reg 26 still seems to be available to supersede an ESA Tribunal’s decision but not a PIP Tribunal’s. MR doesn’t mention reg 26 at all - it seems to have been decided in ignorance of the provision.
Whilst MR has been used to the advantage of some claimants, it was only a matter of time until it was used to the detriment of a claimant - as it arguably has been here. I would be discussing with the client whether he wants to try and get it reviewed or set aside.
Re Reg 26 the difference between ESA and PIP is that ESA is awarded for an indefinite period but PIP can be awarded for a fixed period. The provision was then imported into PIP without thought for the potential legal complexities it then introduced (rather than the policy / admin objective it sought to achieve)?
The comments in paragraph 18 of TH v SSWP (PIP) [2017] UKUT 0231 (AAC) are heavily qualified further in the para. and must be read alongside all of the cases then referred to.
In my opinion the UT in these decisions are saying (1) the DM/tribunal must identify the specific grounds for supersession within the specific Reg relied upon (2) the DM/tribunal must give adiquate reasons for its decision. Where the decision seeks to supersede the decision of a tribunal using Reg 26 recipt of medical evidence can ‘trigger’ a supersession but must then identify why the conditions of entitlement (of the existing award) are no longer met - with referrence to the evidence and reasons for the earlier decision - so in effect the DM/tribunal must identify an actual change of circumstances. Receipt of a new HCP opinion is simply not enough.
Others may disagree?
For ESA maybe these PIP UT decisions means the issue is now ripe for revisiting?
[ Edited: 16 Jun 2017 at 04:03 pm by Peter Turville ]
As far as I can tell, nobody has been able to provide any reason why reg 26 would be unavailable just because the earlier decision was made by a Tribunal. Equally, nobody can explain why reg 26 still seems to be available to supersede an ESA Tribunal’s decision but not a PIP Tribunal’s. MR doesn’t mention reg 26 at all - it seems to have been decided in ignorance of the provision.
Indeed - I’m can’t see why Reg 26 couldn’t have applied in MR, a further assessment was undertaken in Oct 2015 so that would have allowed the possibility of a supersession - although SSWP would still have to justify the outcome.
Whilst MR has been used to the advantage of some claimants, it was only a matter of time until it was used to the detriment of a claimant - as it arguably has been here. I would be discussing with the client whether he wants to try and get it reviewed or set aside.
It would be interesting to see the SoR for this case - on the face of it the FtT could well have erred.
Musing on these issues here :
http://cpag.org.uk/content/pip-changing-ongoing-award
any thoughts welcome
We have a very similar case to the original post. PIP was awarded at an appeal on 16/6/15 and awarded from Feb 2014 - Feb 2017. DWP than carried out a planned intervention in Feb 2016 which resulted in a nil award decision in June 2016. This was appealed on the basis of CPIP/3556/2016 (that the DWP hadn’t shown a change in circumstances).
The appeal was finally heard last month after 3 adjournments for various reasons and was successful in that the DWPs latest decision was set aside. However the previous award ended entitlement in Feb 17. PIP are saying they can only pay until that date. Obviously the tenant hadn’t been sent renewal forms as at the time it was a nil award but how can she now get any award for the period from Feb 2017 to now? I would have expected the most recent tribunal to reinstate the previous award and extend it to a future date?
Any ideas?
That sounds incorrect - the SSWP does have powers to supersede a FtT decision (e.g. reg 26) just not revise it. I think that’s the flaw in MR.
Hmmm…
Reading around Judge Wright in PM v SSWP and his quotation of Judge Mesher’s analysis in KB v SSWP I have a feeling we might be barking up the wrong tree.
The key; if I’m right, might be reg 26(2) UC, PIP etc (C&P) regs that limits supersession in PIP awards to where there has been a negative determination by the new assessment. Might that, in practice, be refined by reg 31 to where there has been a change of circs or error of law identified where it is a Tribunal’s decision that is subject to scrutiny? Wouldn’t reg 26 render reg 31 otiose otherwise?
Hmmm…
Reading around Judge Wright in PM v SSWP and his quotation of Judge Mesher’s analysis in KB v SSWP I have a feeling we might be barking up the wrong tree.
The key; if I’m right, might be reg 26(2) UC, PIP etc (C&P) regs that limits supersession in PIP awards to where there has been a negative determination by the new assessment. Might that, in practice, be refined by reg 31 to where there has been a change of circs or error of law identified where it is a Tribunal’s decision that is subject to scrutiny? Wouldn’t reg 26 render reg 31 otiose otherwise?
Isn’t reg 31 needed to allow SSWP to supersede FtT decisions that if they were made by SSWP could be changed by Reg 24? Reg 26 allows other grounds for supersession of any decisions such as new med evidence, ‘negative determination e.g. failure to return PIP2, etc.
I’m not sure what’s happened in Jo’s case above but MR looks similar in that it remade the original FtT decision - which expired by the time the UT was heard so what in that case happened to the claimants renewal?
We have a very similar case to the original post. PIP was awarded at an appeal on 16/6/15 and awarded from Feb 2014 - Feb 2017. DWP than carried out a planned intervention in Feb 2016 which resulted in a nil award decision in June 2016. This was appealed on the basis of CPIP/3556/2016 (that the DWP hadn’t shown a change in circumstances).
The appeal was finally heard last month after 3 adjournments for various reasons and was successful in that the DWPs latest decision was set aside. However the previous award ended entitlement in Feb 17. PIP are saying they can only pay until that date. Obviously the tenant hadn’t been sent renewal forms as at the time it was a nil award but how can she now get any award for the period from Feb 2017 to now? I would have expected the most recent tribunal to reinstate the previous award and extend it to a future date?
Any ideas?
As above, my response is that the Tribunal appears to have gone wrong in following MR to this conclusion.
However, if we accept that MR does compel the conclusion that reg 26 has become unavailable in your client’s case, then I don’t think there is any remedy.
A PIP award, like any other benefit award, can only be interfered with by revision and supersession. Revising the first Tribunal’s decision isn’t really an option and - if we are relying on MR - supersession is impossible unless you can show a change of circumstances.
The curious thing about PIP is that because awards are made for fixed terms, if they aren’t superseded, they simply expire. That’s why if your client has been awarded standard rate mobility from 20/04/14 - 19/04/18 and is re-assessed at standard rate mobility, a supersession is necessary. In that scenario, nothing has changed and the ground used for that supersession is reg 26.
Given the approach your Tribunal has taken, it would have been impossible for them to extend the award - an extension would only have been possible via supersession and the MR logic prevents a supersession without a change in circs.
The only other way for a non-transfer claimant to get PIP is by making a claim. The remedy is then backdating - but there is no backdating for PIP so this is a dead end.
All of this really underlines why it cannot be right that MR somehow makes reg 26 go away. The whole system relies on reg 26 to operate and claimants have a lot to lose through the misapplication of this decision.
I had a case due to be heard last week I used CPIP/3556/2016 as the only basis of my submission
client knew if successful his award would only run to its original end date 31/8/17 and would need to make a new claim as unlikely DWP will invite a renewal, as DWP ended his claim earlier than original tribunal ordered in Dec 2016 he was happy with this route.
Morning of appeal call to say don’t attend Judge agrees changing decision customer happy.
Decision received in the post the tribunals make no reference to the fact they changing based on CPIP/3556/2016 just states in reaching its decision tribunal placed particular reliance of the totality of the evidence.
I was very disappointed in this as they have not identified to DWP they used this decision.
I am minded to write for a SOR .
Any thoughts
[ Edited: 12 Jul 2017 at 11:56 am by Gail Knight ]UT decision in MR v SSWP (PIP) [2017] UKUT 46 (AAC) - CPIP/3556/2016 confirmed that a tribunal decsion can only be superceded under UC, PIP etc (DA) Reg 31 (ingnorance or mistake to a fact) or Reg 23 (change of circs). It cannot be superceded under Reg 26 - so called ‘planned intervention’.
However the same Judge at paragraph 18 of TH v SSWP (PIP) [2017] UKUT 0231 (AAC) confirmed that MR is explicitly not authority for that point.
As far as I can tell, nobody has been able to provide any reason why reg 26 would be unavailable just because the earlier decision was made by a Tribunal. Equally, nobody can explain why reg 26 still seems to be available to supersede an ESA Tribunal’s decision but not a PIP Tribunal’s. MR doesn’t mention reg 26 at all - it seems to have been decided in ignorance of the provision.
Whilst MR has been used to the advantage of some claimants, it was only a matter of time until it was used to the detriment of a claimant - as it arguably has been here. I would be discussing with the client whether he wants to try and get it reviewed or set aside.
Re Reg 26 the difference between ESA and PIP is that ESA is awarded for an indefinite period but PIP can be awarded for a fixed period. The provision was then imported into PIP without thought for the potential legal complexities it then introduced (rather than the policy / admin objective it sought to achieve)?
The comments in paragraph 18 of TH v SSWP (PIP) [2017] UKUT 0231 (AAC) are heavily qualified further in the para. and must be read alongside all of the cases then referred to.
In my opinion the UT in these decisions are saying (1) the DM/tribunal must identify the specific grounds for supersession within the specific Reg relied upon (2) the DM/tribunal must give adiquate reasons for its decision. Where the decision seeks to supersede the decision of a tribunal using Reg 26 recipt of medical evidence can ‘trigger’ a supersession but must then identify why the conditions of entitlement (of the existing award) are no longer met - with referrence to the evidence and reasons for the earlier decision - so in effect the DM/tribunal must identify an actual change of circumstances. Receipt of a new HCP opinion is simply not enough.
Others may disagree?
For ESA maybe these PIP UT decisions means the issue is now ripe for revisiting?
late to the party here but thats the way im reading 26. it appears to say new evidence can mean a supersession but then directs you to the schedule which talks of changes in circumstances again.
i’m taking the supercession point in a forthcoming tribunal (when i get a date) - client asked dwp to look at his pip again because his carer had got a full time job and so wasn’t caring for him anymore. dwp took that as sufficient to send him to new medical - with the consequences we’d expect for his PIP ..... my first argument is that there wasn’t any ground to even send him for med!