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1.6 million PIP claims to be reviewed

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Mike Hughes
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Senior welfare rights officer - Salford City Council Welfare Rights Service

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Is this draft or fina?

WillH
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Locum adviser - CPAG in Scotland

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Daphne, the way this reads at the moment it sounds as if where a claimant makes a new claim or asks for a supersession at the moment they could still get a wrong decision in respect of that aspect of the mobility component? And that wrong decision would subsequently be identified once the new guidance is available…?

This seems very poor management if true!

Daphne
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Mike - we’ve been asked to cascade it so assume it’s final.

Will - that is exactly the problem. A few of us have been arguing hard because the attitude seems to be they can’t implement MH till they’ve written the guidance. Our point is that the law is now the descriptors without the words ‘for reasons other than psychological distress’ included on 1c, d and f - and that is what should be applied.

In the conversations I’ve had it has been like hitting your head against a brick wall - in one of the latest emails they say -

Pending the publication of new guidance, the Department is therefore making decisions in accordance with guidance published in November 2017 which reflects the Department’s original policy intent. The Department recognises its legal obligations to implement the MH judgment and, as the Minster has advised, is working towards this at pace. Decisions taken after the MH judgment and awards in payment at the date of the judgment (November 2016) which may be affected by the judgment will be reviewed to ensure claimants received their correct entitlement to PIP.  This review will commence after publication of the revised guidance.

I have tried arguing with them that MH looked at policy intent when it made its decision and that the the HIgh Court decision made clear that the new criteria were ‘blatantly discriminatory against those with mental health impairments’ and ‘cannot be objectively justified’.

I have also pointed out that if they make decisions which are clearly outside the legislation they are repeating the mistake they made on the IB to ESA conversion. However, they are not budging. Welcome ideas about how we can challenge this.

WillH
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Ugh - Daphne, this is incredibly frustrating.  Off the top of my head, if I had a situation where the correct wording of the activity meant someone didn’t get a new award/right amount, or was refused revision/supersession, I might try an HRA argument - the correct rate of PIP being a possession, the status being the condition which made that person likely to experience psychological distress (I have clients affected by a range of conditions including post-traumatic stress, learning disability, depression & anxiety etc - I’m sure we all do).

Do you think this might work? But how ridiculous & wasteful to be considering another legal challenge in this situation…

Pretty much every week I have clients asking me what is happening about this & it’s incredibly depressing to see that unlawful decisions will continue to be made.

Welfare Rights Adviser
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Daphne - tell them I don’t mind updating their guidance, already done ours

Daphne
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WillH - 09 April 2018 01:34 PM

Ugh - Daphne, this is incredibly frustrating.  Off the top of my head, if I had a situation where the correct wording of the activity meant someone didn’t get a new award/right amount, or was refused revision/supersession, I might try an HRA argument - the correct rate of PIP being a possession, the status being the condition which made that person likely to experience psychological distress (I have clients affected by a range of conditions including post-traumatic stress, learning disability, depression & anxiety etc - I’m sure we all do).

Do you think this might work? But how ridiculous & wasteful to be considering another legal challenge in this situation…

Will - Yes I think that’s what will have to be done - it’s basically the arguments that would put forward at the High Court which is why the regulations were quashed in the first place!!

Stuart
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Regulations have been issued in Northern Ireland (SR.No.121/2018) to remove the wording ‘for reasons other than psychological distress’ from descriptors c, d and f, but only in force from 15 June 2018.

On the effect of RF in Northern Ireland, the memorandum to the regulations notes -

High Court judgments in Great Britain are not binding in Northern Ireland and the quashing order does not apply to the provision in the Northern Ireland 2017 Regulations. Therefore in order to restore parity with Great Britain amendments are being brought forward in these Regulations.

Stuart
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Written statement from Sarah Newton confirms that PIP review process starts today -

I am pleased to inform the House that two review exercises will begin today. One with regard to the MH and RJ judgments and one for claimants whose main disabling condition is haemarthropathy. The first payments will be made in late summer….

... I am pleased to tell the House that [the work required to implement MH] is now complete and I have today published the new guidance required in order to implement the change. The guidance can be found at https://www.gov.uk/government/publications/personal-independence-payment-assessment-guide-for-assessment-providers

On 2nd November 2017 the Department published updated guidance following an Upper Tribunal judgment on RJ that was handed down on 9th March 2017 on how the Department considers a claimant to be carrying out an activity safely and whether they need supervision to do so. The review exercise will now also look back at PIP claims to consider whether an increase in entitlement should be awarded as a result of RJ.

In addition, the Department is also beginning a review of approximately 420 PIP cases where the main disabling condition is haemophilia to identify and review claimants with haemarthropathy, following feedback from external stakeholders that the functional needs of claimants with haemarthropathy were not being adequately assessed. We expect this exercise to be completed in 6 weeks.

 

Daphne
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Government has published some FAQs about the review - http://data.parliament.uk/DepositedPapers/Files/DEP2018-0644/PIP_FAQ.pdf

Mr Finch
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Does anyone understand why haemarthropathy has been singled out for review over and above all the usual problems with assessments?

shawn mach
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Mr Finch - 03 July 2018 01:16 PM

Does anyone understand why haemarthropathy has been singled out for review over and above all the usual problems with assessments?

Found this which is dated about a week before Sarah Newton’s written statement:

Following a meeting between my predecessor, Penny Mordaunt MP and the co-chair of the All Parliamentary Party Group on Haemophilia and Contaminated Blood, Diana Johnson MP, the Department set up a Working Group in October 2017 with individuals affected by contaminated blood to hear about their experiences with the application and assessment processes for disability benefits.

During meetings with the Working Group, concerns were raised about people affected by contaminated blood scoring nil or low points for PIP, and members were invited to share any such cases for review. After reviewing all of the cases received, a systematic problem was identified with how the functional needs of claimants with haemarthropathy (a severe type of arthritis caused by bleeding into the joints due to haemophilia) had been assessed for PIP. This was confirmed in a targeted audit of cases from the caseload. No problems were identified with the assessment of any claimant who did not have haemarthropathy.

As a result, a decision has been made to review PIP cases where the main disabling condition is haemophilia to identify and review claimants with haemarthropathy. Analysis shows that there are approximately 410 such cases across Great Britain, and we have designed an administrative exercise to fully review each one.

More: http://www.sibf.org.uk/haemophiliacs-pip-cases-dwp-uk-wide-review-of-claimants-with-haemarthropathy/

Mr Finch
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It’s all very odd, as for it to be a systematic problem I can only see three possibilities:-

1. There was guidance somewhere that instructed HCPs to score this particular condition in a certain way, as there was with mental health and mobility. This would appear to be undisclosed.

2. All HCPs independently decided that functional limitations from haemoarthropathy could not meet descriptors that those limitations should have met, for reasons unknown, but somehow didn’t reach this conclusion with any other conditions.

3. The systematic problems identifying scoring descriptors are actually much more general and the DWP have tried to limit their admission to what it can get away with.

Helen Rogers
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And yet we keep being told that PIP is awarded according to functioning not diagnosis…

BC Welfare Rights
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A fourth possibility is that there is legal action pending somewhere and the DWP is hurriedly trying to avert another embarrassing defeat

BC Welfare Rights
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Going back to the original theme, has anyone had a case reviewed yet?