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PIP, Failure to attend and lapsed appeals - am I missing something?

RAISE Advice
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We have a client who failed to attend a medical in April, he was converting over from DLA to PIP. He has severe depression and anxiety, he was receiving high rate care component and low rate mobility component. He actually received his appointment date but was asked to attend an assessment centre that was too far from his house. He rang the DWP to ask if they could rearrange and next he heard was to receive a letter from the DWP to say his DLA would stop as he had failed to attend.

We helped him to appeal against this decision and while waiting for the appeal bundle, the DWP decided that actually he was willing to comply with the procedures, they arranged a new medical and decided that he would probably be entitled to SRDL. They have, however refused to make a decision because it is not wholly favourable and they do not want the current appeal to lapse. They have asked the Tribunal to make a decision on his entitlement to benefit even though this is not the decision our client has appealed against. In the meantime, no benefit has been paid because they refuse to make a decision.

Am I missing something? I’ve just had a really weird conversation with the complaints team at PIP and they have assured me they have checked with their quality team and that it is there policy to do this and they cannot do anything else to help. How can the tribunal consider a decision that has not been made? Surely this appeal should have lapsed, our client been paid SRDL, sent a decision notice and given the opportunity to appeal against that decision if he was not happy with it.

Mike Hughes
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Might be worth raising with regional judge and asking for a direction/decision as to scope of their jurisdiction. As per the other recent thread it will then be worth escalating with DWP via their correspondence email address.

I love their quality team. I think it’s the equivalent of swivelling round in your office chair to a colleague and going “I dunno, what do you reckon?” in that manner so beloved of people who only ever want you to confirm what they’ve just said”.

I have a PIP client who scored 10 on mobility, which was correct and 11 on daily living which was not. 2 points on 1 should have been 4. Posted this in a thread in this forum some time ago. Argument was that the 2 points was (ahem) “*&^&*&% obvious”. MR failed. Lodged an appeal and complained. Complaints team said they could see nothing wrong. Escalated the complaint. Quality team and casework manager confirmed to complaints team that they had reviewed the case and were entirely satisfied with the decision.

Last week a Manchester appeal tribunal awarded the extra 2 points just as I was getting my reading glasses out to outline very quickly what I’d already put in 2 concise submissions. Fastest win of the year. Literally inside 1 minute. Just about beat my 3 minute win in Bolton on a FTA 😊

Will be going out of my way to ensure all concerned know the outcome once everything is in payment.

nevip
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I’m not clear from the OP what has exactly happened here.  Does the DWP ‘offer’, award benefit from the date of the original disallowance, or from some later date?  If it’s from a later date then the DWP cannot, of course, lapse the appeal.  The offer will thus be in the DWP sub’ in the form of a concession,  which the appellant is entirely free to argue against.

On a wider note, and moving away from this particular case, this kind of thing is getting more prevalent.  It looks like someone in the DWP has overdosed on Law and Order on 5USA and decided to launch the DWP into an American pseudo, reverse plea bargaining system.  They usually contact the punter and ‘make him an offer’, as it were.  If the claimant accepts and takes his appeal for the higher award off the table, then as far as the DWP is concerned, job done, money saved and case closed.

This process is highly inappropriate for a number of blindingly obvious reasons.  One example will suffice.  Many claimants don’t have the legal knowledge and judicial acumen to truly assess the substantive merits of their own cases and are in danger of selling themselves short.  And unlike a US plea bargaining system it is often done without the claimant having the benefit of proper legal advice.  Thus it runs a risk of perverting the civil judicial system by introducing a form of bribery between two parties (the individual and the state) between whom there is an unbalanced equality of arms until the moment of intervention by an experienced and competent adviser.

This practice is in need of a proper review.  Now.

Elliot Kent
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I’m wondering if this is pretty much the same scenario as NAI posted about here:

https://www.rightsnet.org.uk/forums/viewthread/11624/

The thesis (which the DTJ who goes to the local TUG appears to accept but which I can’t really follow) is that something in part 7 of the D&A regulations means that where an appeal is lodged against a “good reason” decision but good reason is subsequently accepted, the appeal just continues to fully determine everything.

NAI
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Elliot Kent - 30 August 2017 08:05 PM

I’m wondering if this is pretty much the same scenario as NAI posted about here:

https://www.rightsnet.org.uk/forums/viewthread/11624/

The thesis (which the DTJ who goes to the local TUG appears to accept but which I can’t really follow) is that something in part 7 of the D&A regulations means that where an appeal is lodged against a “good reason” decision but good reason is subsequently accepted, the appeal just continues to fully determine everything.

I’ve recently had a case where a person appealed against a decision that he was not entitled to PIP because he didn’t attend the medical assessment. His DLA stopped (transfer case) and he appealed.

The decision maker accepted that he had good cause but that didn’t lapse (end) the appeal. I was very puzzled.

It turns out that the DWP can leave the appeal open so that when the client has had his assessment no MR stage is necessary and the appeal simply continues.In his case the DLA has been put back into payment pending the new assessment.

The legislation that applies is in Regulation 52 in Part 7 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013.

It appears that it can pop up in regard to PIP, JSA & ESA. It appears to apply in my client’s case but I’m not sure that this was what was intended by the legislation.

From this thread, it appears that others are starting to experience this. I’ve enclosed an extract showing the regulation as a .pdf file.

 

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AlexJ
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Reopening this issue if I may, para. 52 of part 7 (as linked to in the previous post) refers to not lapsing appeals only in cases where decisions are not more favourable to the claimant than the original decision.

But in the case of a DLA to PIP transfer case, finding that a claimant has ‘good reason’ for failure to attend an examination or to furnish information arguably results in the reinstatement of their DLA until a proper determination has been made on their PIP (ie. a determination on the points).

This is because the provision in reg. 13 of the PIP (Transitional Provisions) Regs 2013 to disallow DLA 14 days after the first pay day after the negative PIP decision will not take effect, because the claimant has shown ‘good reason’ for failure to provide the information and that PIP decision is therefore no longer a negative decision. This is more favourable than the original decision, which was that the DLA stops 14 days after the decision disallowing PIP.  So para. 52 shouldn’t apply and the appeal should lapse and DLA should be reinstated, pending the outcome of a new assessment and decision.

Any thoughts?

Mike Hughes
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Would like to reopen this to ask the question as to whether anyone has noticed that DWP are not in fact putting details of the offer into the submission?

I have one such example with which DWP can see nothing wrong. Like it’s okay to not tell a tribunal that they’ve changed their mind since my complaint against the HCP was upheld and whoever the provider was recommended that PIP communication should not be 2 points but 8!

Edit:

Dang. Sorry Alex. Didn’t see your post. Don’t want to distract from your point.

Giles Elliott
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A colleague of mine at Manchester Mind has a very similar case. New claim for PIP (not migration from DLA), claimant failed to attend assessment. MR requested, MRN upheld previous decision. Claimant appealed. Once appeal lodged DWP accepted good cause and arranged further assessment, which client attended. HCP identified 0 points. DWP then send out bundle which effectively confirms that good cause is accepted and says that tribunal needs to decide on entitlement. Colleague contacts decision maker named on bundle to clarify situation, and suggest, as nicely as possible, that a new decision needs to be made on entitlement following the medical assessment. The decision maker said it wasn’t needed.

We’re perplexed: what decision is the appeal about? It isn’t about the failure to attend assessment, as good cause was accepted. But it can’t be about entitlement as no decision on entitlement has been made. Surely what should have happened was that the appeal should have lapsed and then, following the second assessment, a decision should have been made with the associated rights to request MR and appeal…

Thanks NAI for attaching 2013/381. I agree with Alex and Mike: if the DWP are using this in this context they’re clearly wrong. Plainly reversing a decision to refuse benefit for failing to attend a medical falls under (5)(c) (‘as a result of the decision, a denial or disqualification for the receipt of any benefit is lifted,wholly or in part’), is more advantageous,  is not therefore ‘not more advantageous to the appellant’ , and does not ‘not lapse’. (Apologies for all the ‘not’s!).

My colleague has decided on an approach in which he asks the tribunal first to try to untangle this mess and then, if it thinks it has got jurisdiction, to make findings on entitlement. I sincerely hope the tribunal gives the DWP a good, er, talking to.

John Birks
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It must be someone new as they’re interpreting things differently.

Example rcd today - DLA HRC/HRM in payment before invited to claim PIP.

DLA ends due to PIP negative determination 26 October 2016 due to failure to provide info to determine entitlement.

Reconsideration decision noted as 30 October 2016

MR requested in 2017 - MRN issued 30 June 2017

Appeal Lodged 26 July 2017 stating 12points minimum for each component.

then…....

PIP 2 completed 14 September 2017

Assessment 18 October 2017

SRDL & ERM awarded effective from 16/11/2016 but not put into payment - so no benefit in payment for over 12months.

see below from the submission:

On receipt of the appeal the Case Manager (Decision Maker) accepted good cause, following receipt of the PIP2 questionnaire; placed the appellant back **onto the PIP Journey,** and asked the Tribunal to extend the time limit for the response.
Based on the Health Professional recommendations; the appellant scored 9 points for Daily Living, and 12 points for Mobility so is entitled to the standard rate of Daily Living component, and the enhanced rate of Mobility component.

However, by virtue of section 9(6) of the Social Security Act 1998 and regulation 52 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013, an appeal against a decision of the Secretary of State, lapses if, and only if, the decision is revised (to the claimant’s advantage).

The level of award recommended, however, is not fully to the claimant’s advantage, when taking into account the appellants appeal which clearly indicates she expects an award of both components at the enhanced rate, and therefore, it is highly likely that a further appeal would be made.

Therefore, the proposed revised decision has not been implemented because, to do so, would mean the appeal would lapse, but has not met the customer requirements.

The relevant provision is Section 9(6) of the Social Security Act 1998 and regulation 52 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013, an appeal against a decision of the Secretary of State lapses if and only the
decision is revised (to the claimant’s advantage). In CIS/3228/2003 (paragraph 20) and SS v Secretary of State for
Work and Pensions (JSA) [2013] UKUT 0233 (AAC) (paragraph 35) it was held that a revision is not completed until a new overall conclusion as to the amount of the claimant’s entitlement is arrived at.

The appeal therefore continues but the decision for HMCTS to now consider is whether or not the claimant is entitled to Personal Independence Payment at the rate suggested, and not against the negative determination.

—- having read that and having had the conversation with the DM about the PIP regs (they’re well aware) the DWP are making a right hash of it - or is it a method of avoiding making a contrary decision (internal stats) and blaming the courts for overturning the decision and making it up as they go along etc?

[ Edited: 3 Nov 2017 at 11:56 am by John Birks ]

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SamW
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Had an unexpected tribunal decision on this point this week (I thought the appeal had been lapsed as the DWP had made a more favourable decision and were just waiting for a rearranged assessment).

Have attached the relevant anonymised decision.

EDIT - I can’t seem to do attachments - they are JPEGs, are these not supported?

In summary the judges argument was that by accepting good cause they were also setting aside the negative determination decision. Following on from this there was no legal basis to end the DLA claim. I can’t really do justice to the reasoning without copying the whole thing out - hopefully somebody can advise on how to upload attachments.

[ Edited: 3 Nov 2017 at 12:29 pm by SamW ]
Elliot Kent
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I think I might finally be understanding this.

The DWP keep referring to regulation 52 as though that explains things, but it doesn’t. What they really mean is that whilst it is an entitlement decision to say “we are refusing your claim due to an FTA”, its not an entitlement decision to say “we are not refusing your claim because you had good cause for FTA” - that’s only a determination on the way to a decision.

Potential lapsing of the decision therefore, the argument goes, doesn’t come into it because a changed FTA decision is not a revision (i.e. change in the entitlement decision) at all.

In a case like John’s they’ve then added a second layer which is that whilst they do have grounds to revise to award SR/ER, they aren’t going to because the claimant wants ER/ER.

What’s confusing is that every other arm of the DWP takes the approach that an appeal lapses when the primary determination is conceded - so in a right to reside appeal you aren’t told that the appeal won’t lapse until the claimant’s finances have been investigated - its just lapsed.

NAI
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In the case that prompted my original post and my investigation of Part 7 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013,  I must have been very lucky because the judge directed the DWP to put the DLA back in payment. Anonymised extract attached.

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  • a.pdf (File Size: 188KB - Downloads: 2277)
Giles Elliott
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John Birks - 03 November 2017 11:54 AM

It must be someone new as they’re interpreting things differently.
The level of award recommended, however, is not fully to the claimant’s advantage, when taking into account the appellants appeal which clearly indicates she expects an award of both components at the enhanced rate, and therefore, it is highly likely that a further appeal would be made.

I don’t really buy that. The law says a decision ‘does not lapse where…the decision as revised is not more advantageous to the appellant’ (italics mine). It does not say ’ is not completely and fully advantageous to the client’ (and how could it: even if a revision awarded er DL and er Mob, who’s to say whether the duration of the award is as long as it could be?).

And I don’t really get the suggestion that ‘a changed FTA decision is not a revision’ (although I think Elliot has summarised their thinking really clearly). Surely a decision is a decision, and the only things that can happen to decisions is that they can be revised or superseded?

I feel like I’m drifting into the twilight zone: aghhhh!

John Birks
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Not sure about the apparent misquote but yes it’s wrong.

The DLA decision (the measure being held to the latest decision) is inoperative with a decision being made on the PIP claim.

The appeal lodged was against a ‘without good cause’ decision and this being revised no longer exists.

The result is that a claimant, whom is severely ill and disabled, is denied benefit awarded due to utter incompetence and belligerence.

Chrissum
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Just got back from one of these hearings. Took the judge less than 1 minute (having read the papers and submissions) to reverse the good cause negative determination. His view on DLA re-instatement was, in his words, “simplistic” as he applied the “but for” test i.e. but for the decision what would the claimant’s position be - she would be in receipt of DLA - so he put her back in that position until such time as a PIP decision is made.
This seems to be a well thought out logical argument, not necessarily founded upon legislation, but certainly founded on legal principles. The UT can sort out the niceties if necessary, though I suspect the DWP will not want a precedent set.
There are quite a number of this sort of decisions happening (we have seen at least 3 recently) and they are taking up a lot of HMC&TS; time (as well as that of clients and advisers). The DWP are, apparently, quite simply refusing to lapse appeals unless they have had an opportunity to speak to the claimant with their “offer” and have gone back to the bad old days of “we’ll let the tribunal decide, even though we know our decision is wrong.” Rant over!

Mike Hughes
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So, we know the DWP have a politically motivated dislike of judges and tribunals. Rather than cut they’d pay they’re going for reducing them to decision maker status. Excellent. Finally an improvement in decisions on claims.