Closing PIP claim for non return of PIP2 form

Has anyone successfully challenged the closure of the PIP claim based on non return of PIP2 form?  What grounds were successful for challenging the decision?

Reg 8 of the PIP regulations provides:

Information or evidence required for determining limited or severely limited ability to carry out activities
8.—(1) The Secretary of State may require C to provide any information or evidence required to determine whether C has limited ability or severely limited ability to carry out daily living activities or mobility activities.
(2) Where information or evidence is requested under paragraph (1), C must provide the information or evidence to the Secretary of State within one month from the date of the request being made or within such longer period as the Secretary of State may consider reasonable in the circumstances of the particular case.
(3) Where C fails without good reason to comply with the request referred to in paragraph (1), a negative determination in relation to the component to which the failure related must be made.

So that rather sets your battleground.

The main area of argument is going to be in respect of “good reason” - suppose that the claimant couldn’t fill the form in within the time limit due to sudden illness or bereavement, or has an enduring health condition that prevents them from dealing with correspondence in a timely manner.

Another common one is where the claimant says that they did “provide” the information but either the DWP or the post office has lost it.

Less commonly, perhaps there will be cases where the DWP has received the form but after the deadline - you could argue that it was reasonable to extend the deadline - or if the claimant didn’t fill the form in but provided the information requested in some other unauthorised format.

Overwhelmingly though, the DWP seem to send out letters which simply read as “you didn’t send the form back so we’ve closed your claim” and don’t even draw out the necessary evidence to decide these points. Claimants seem to mostly accept that and just make a new claim rather than appealing.

I’ve challenged this successfully a few times for clients with mental health conditions.  I’ve also got the second claim “backdated” to the date of the first a few times on the same grounds.  In both situations, I’ve also quoted their own guidance that says that the claim process should continue for a “vulnerable” claimant who doesn’t return their PIP 2.

Thanks very much for responses.  I was debating between the option of just going forward with the MR for the decision to close the claim and making a new claim but highlighting as part of this that the previous claim shouldn’t have been closed but was concerned to do the new claim route in case differing decisions were reached for each claim .  Just trying to make the route the easiest one for the client with the least bumps along the way!

Hi foks,

We’ve had a similar case sent through from an adviser and I’m out of office without books so any thought sbefore I get back tomorrow would be most welcome. Haven’t done a lot of PIP reviews like this. Adviser enquiry states:

He was awarded the Standard Rate of Personal care and the enhanced rate of mobility in 2016.
His condition has got worse since then. He telephoned the PIP to ask for a change of circumstance form. They sent this out to him in May and he filled it in and sent it back to them, within the time limit that they set. They have now taken him off the benefit altogether. They say that they have not received the form.

They say that they have sent a letter out on the 4/05/2019 to my client but, he has not received anything. The first thing that he knew about it was when Employment and Support Allowance have taken away his Severe Disability Premium. He also received a letter from Motobility saying that they are taking the car off him, he received this on the same day as his ESA was stopped.

Things that strike me - I’m assuming the reference to letter sent on 12.05.19 is decision to stop PIP? If/when MR notice received, would it simply be easier to lodge appeal against refusal of PIP and take to FtT rather than attempting to resolve this with DWP?

Any other thoughts or ideas would be gratefully received.

That’s an interesting one Paul.

There’s an entirely sensible argument that the failure to provide information to sustain your supersession request ought to be that the decision is not superseded - not that benefit is stopped altogether. But I am not sure that entirely engages with the terms of reg 8 which, particularly viewed with reg 11, seems to envisage that the DWP can ask for this information whenever they please, with the consequences being the same whatever stage of the process is involved. This fits with the DWP idea of an “unplanned review” triggered when the claimant reports a change. I think it might be that strictly speaking there is both an “unplanned review” and a claimant’s request for supersession running parallel to one another, although I don’t know that anything really turns on that.

I am not sure how you could run the appeal otherwise than straightforwardly asking the tribunal to believe the claimant that they sent the form back. It might be that there is more leeway to raise the rationality of the overall situation through complaints or other processes.

One thing I do think you need to know is the end date of the award which has been superseded. The award began in 2016 - but it could be a 10 year award with the claimant now having potentially lost years of benefit as a result - or it might be that the claimants award was going to end in a couple of months and they were really just making an early reclaim.

Two things which are probably worth doing whatever the plan are (1) to provide the DWP with the information they were asking for, e.g. by filling in another blank PIP2 or AR1 and (2) to make a new claim.

Thanks very much for this Elliot, that’s really helpful. Hoping to speak to the adviser later on.

From what I’ve seen the claim is ended by a letter - a computer generated letter as the date is set in advance.

As in post 1 - last para.

Good reason is not considered and I’ve not seen a copy of the decision - just the letter giving no reasons.

A letter isn’‘t a decision.

Therefore no consideration to whether there is ‘good reason’ or not and whether there is power to supersede the award in place.

Sweet and Maxwell suggests that this may not be lawful as such and that supersession grounds may still be required.

KB v Secretary of State for Work and Pensions (PIP): [2016] UKUT 537 (AAC)

This might be more straightforward…

Adviser rings PIP and asks them to check the correspondence folder; often a late PIP2 will be languishing there nobody having dealt with it. If it has arrived after the timer’s run out a diplomatic word with a case manager gets the claim back onto the work path and referred to assessment. Reasons for the late return will only then be considered after the assessment and any award can be made at least from the date of receipt of the form.

I’ve found that; when I can get hold of them, the case managers at PIP are a reasonable bunch who’ll usually rectify stuff like this without need for recourse to formal channels.

That said I do deal with a very vulnerable client group.

Thanks. Spoken to adviser and client called to report CoC in March, PIP2 not recieved and so he called again towards end of April, received forms and filled them in and sent them back a week before deadline. Two weeks later on 04.06.19, they say they disallowed claim for non-return.

When he spoke to them on 12.06.19, they said there’s a 10-week backlog of forms to be dealt with so even if they had received the form, it would be late anyway but also they said they hadn’t received form either?!

Our adviser called yesterday and they simply said they hadn’t recieved it and that they’d taken his call as being the MR.

She’s going to call them to try and get hold of decision notice and MRN’s but wil drop her a line to suggest she tries to get hold of case manager as you suggest Dan.

The plot thickens. Adviser called helpline and told there’a a 10-week delay in post opening at the mail handling site so they don’t know whether form has been received or not but they have cancelled his claim regardless and are reissuing decision notice and treated call of 12.06 as MR request - this will take 1-2 weeks to process apparently.

Tried to call one of the escalation numbers, only to be told that the person specified isn’t in the office and they told me to call helpline.

This is starting to get ridiculous.

Paul_Treloar_AgeUK - 14 June 2019 04:21 PM

there’a a 10-week delay in post opening at the mail handling site so they don’t know whether form has been received or not but they have cancelled his claim regardless

If that’s the case, it raises so many questions. Surely there must be some mechanism to log forms as received even if it hasn’t been actioned. I had always assumed the little barcode things were involved. Otherwise, they would be refusing every claim?

Whilst it’s true that regs 8 and 11 of the PIP Regs don’t of themselves permit supersession, Reg 26(2) of the D&A Regs covers exactly this situation so the supersession point is I think a dead end.

I think Dan is probably onto the right idea - i.e. try to speak to a human and ask for some common sense to be applied.