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PIP decision changed following Mandatory Reconsideration – No payment due to appeal

CAH-Adviser
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Am I incorrect in saying that if a decision has changed following a mandatory reconsideration, then payment should be made, even if Cl is appealing?

Cl was receiving HR mobility and standard rate care.  On renewal Cl was awarded 2 points for care and 4 points for mobility, therefore not entitled to PIP. 

Cl requested a MR, she received a call from a decision maker who said that they have looked at the decision again, awarding 8 points for care and 10 points for mobility.  Cl advised the decision maker that she still wished to appeal against the decision for higher rate mobility.

No new decision letter has been sent to the Cl, however, in the appeal papers it does mention that the decision maker called the Cl and changed the decision.  But the decision under appeal is the original decision…of 2 & 4 point, hope this make sense!

Cl has been advised that she will not receive any payments for the new decision because she is appealing, is this correct?

Elliot Kent
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I am confused, I’m afraid.

You said that an MR was requested and the DM said he would change the decision but your client still wanted to appeal and no MRN was issued - but then you talk about appeal papers so there must be an MRN. If so, then your client should get whatever the MRN says they should get.

Do you mean that the decision was upheld on MR and your client appealed and then was called by a DM to “offer” to lapse the appeal? There’s a few threads on that issue.

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Elliot Kent - 03 October 2018 01:51 PM

I am confused, I’m afraid.

You said that an MR was requested and the DM said he would change the decision but your client still wanted to appeal and no MRN was issued - but then you talk about appeal papers so there must be an MRN. If so, then your client should get whatever the MRN says they should get.

Do you mean that the decision was upheld on MR and your client appealed and then was called by a DM to “offer” to lapse the appeal? There’s a few threads on that issue.

Apologies rough week with a head cold and not feeling with it! You are correct - Following Cl’s appeal the DM called Cl and changed the decision to 8 points for care and 10 points for mobility .  Cl still wanted to appeal for enhanced mobility, therefore, DM said that they would let HMRC know that the decision had been changed.  However, Cl is not receiving payment for the ‘new’ award/decision and the Tribunal papers refer to the original decision of 2 points for care and 4 points for mobility.  The appeal papers only later refer to the telephone call and changed decision.

Can they do this?  I have never come across this.

[ Edited: 3 Oct 2018 at 02:31 pm by CAH-Adviser ]
Ianb
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I thought that if the DWP changed the award after the appeal is lodged then the appeal automatically lapsed. The claimant can then request an MR for the revised decision following which they can start a new appeal should they so wish.
Have the DWP actually issued a revised decision letter confirming the changed award?

HB Anorak
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Couple of points to add:

1. If the DWP enshrine their latest position in a revised decision, the appeal will lapse and PIP should be paid forthwith

2. The claimant will then immediately have a right to appeal to the Tribunal against the decision as revised: once there has been an MR notice, it doesn’t matter how many times the decision is then revised or further revised - it is still the same decision and the MR stage has gone, so an appeal lies to the Tribunal

3. But it may be that DWP has not formally revised the decision - just said they are inclined to.  If I can put their side of the story here, this is something I have occasionally done when working on appeals for local authorities.  It narrows the focus of the appeal to issues where there remains a dispute if the DWP/LA indicates that it concedes the appeal in part.  By not going ahead and making a decision to that effect, the LA/DWP ensures the appeal does not lapse.  I would recommend this approach where the concession is a small one and the areas of disagreement remain substantial.  If there is substantial common ground and only a small residual dispute, better practice would be to lapse the appeal and pay up a.s.a.p.

4.  If, as Elliot suggests, DWP is using underhand tactics to talk the claimant into withdrawing their appeal for less than they hoped to gain, the original decision still needs revising and there is still a fresh right of appeal against the decision as revised.  The claimant would only reach the end of the road if the appeal is settled by consent as a Tribunal decision, as distinct from revision by DWP.

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CAH-Adviser - 03 October 2018 02:25 PM

Can they do this?  I have never come across this.

Yes - in fact it is the official policy- now a couple of years old. If the DWP are prepared to revise a PIP decision, they now will not do so unless the claimant consents (or can be assumed to consent) to the revision of the decision and lapsing of their appeal. Therefore they will call you up and tell you what they can “offer” and if you “accept” then the decision will be changed.

(The best strategy is perhaps to “accept” the “offer” and then put a new appeal in anyway so that you get paid in the meantime).

My own view is that this is basically an attempt to cut down on pointlessly lapsing appeals where the claimant will just put in another appeal anyway (and therefore saving everyone a load of hassle) but others have forcefully argued that something more sinister is going on. See e.g.

https://www.rightsnet.org.uk/forums/viewthread/12272/
https://www.rightsnet.org.uk/forums/viewthread/12980/

 

 

 

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Ianb - 03 October 2018 03:06 PM

I thought that if the DWP changed the award after the appeal is lodged then the appeal automatically lapsed. The claimant can then request an MR for the revised decision following which they can start a new appeal should they so wish.
Have the DWP actually issued a revised decision letter confirming the changed award?

That’s what I thought - No revised decision - just mentions it in the appeal papers, but the original decision is at the front of the papers. Cl is not being paid the new award and has been told she will not receive until after the appeal?

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HB Anorak - 03 October 2018 04:26 PM

Couple of points to add:

1. If the DWP enshrine their latest position in a revised decision, the appeal will lapse and PIP should be paid forthwith

2. The claimant will then immediately have a right to appeal to the Tribunal against the decision as revised: once there has been an MR notice, it doesn’t matter how many times the decision is then revised or further revised - it is still the same decision and the MR stage has gone, so an appeal lies to the Tribunal

3. But it may be that DWP has not formally revised the decision - just said they are inclined to.  If I can put their side of the story here, this is something I have occasionally done when working on appeals for local authorities.  It narrows the focus of the appeal to issues where there remains a dispute if the DWP/LA indicates that it concedes the appeal in part.  By not going ahead and making a decision to that effect, the LA/DWP ensures the appeal does not lapse.  I would recommend this approach where the concession is a small one and the areas of disagreement remain substantial.  If there is substantial common ground and only a small residual dispute, better practice would be to lapse the appeal and pay up a.s.a.p.

4.  If, as Elliot suggests, DWP is using underhand tactics to talk the claimant into withdrawing their appeal for less than they hoped to gain, the original decision still needs revising and there is still a fresh right of appeal against the decision as revised.  The claimant would only reach the end of the road if the appeal is settled by consent as a Tribunal decision, as distinct from revision by DWP.

Thank you so much for your response - I think it’s the latter, Cl said it felt as if she was being held to ransom. No new award letter has been sent and Cl has been advised she will not receive payment from the new decision. I just can’t believe they can do this!!

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Elliot Kent - 03 October 2018 05:48 PM
CAH-Adviser - 03 October 2018 02:25 PM

Can they do this?  I have never come across this.

Yes - in fact it is the official policy- now a couple of years old. If the DWP are prepared to revise a PIP decision, they now will not do so unless the claimant consents (or can be assumed to consent) to the revision of the decision and lapsing of their appeal. Therefore they will call you up and tell you what they can “offer” and if you “accept” then the decision will be changed.

(The best strategy is perhaps to “accept” the “offer” and then put a new appeal in anyway so that you get paid in the meantime).

My own view is that this is basically an attempt to cut down on pointlessly lapsing appeals where the claimant will just put in another appeal anyway (and therefore saving everyone a load of hassle) but others have forcefully argued that something more sinister is going on. See e.g.

https://www.rightsnet.org.uk/forums/viewthread/12272/
https://www.rightsnet.org.uk/forums/viewthread/12980/

Thanks for your reply. I will read other posts thanks you.

Although I am still confused - The Cl has been awarded a more favourable decision, although not ‘officially’ - Cl is not being paid the new PIP decision rate just because she said she wishes to continue with the appeal - surely there is case law to prevent DM’s from getting away from this?

So ultimately the decision is down to the Tribual…

 

Elliot Kent
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CAH-Adviser - 03 October 2018 06:48 PM

Although I am still confused - The Cl has been awarded a more favourable decision, although not ‘officially’ - Cl is not being paid the new PIP decision rate just because she said she wishes to continue with the appeal - surely there is case law to prevent DM’s from getting away from this?

So ultimately the decision is down to the Tribual…

Legally, absolutely nothing has happened.. The decision was made whenever it was made and it hasn’t been changed.  All that has happened is that the DWP has conceded certain points in your client’s favour - but not in any legally significant manner. Your client isn’t entitled to anything until a decision is actually changed - so won’t be paid a penny until either the decision is revised or the Tribunal decides her appeal.

FWIW, there is nothing to stop you phoning up the DWP and asking them to implement their proposed decision (assuming you can get through to a decision maker). If they do that, then the decision will be revised, the appeal will lapse (i.e. die) and the payments will start. I have done this in a number of these cases. If your client then decides that actually they do want to lodge a new appeal against the new decision, then there would be nothing to stop them although they will be at the back of the queue as far as hearing dates etc. go.

 

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Thanks for this Elliot - It does make more sense now. I still believe that if a DM provides a new decision, then they should be made to do this ‘legally’ an in writing.  Cl can then decide if they wish to appeal further, obviously being aware that the tribunal can make its own decision to either reduce or increase the award - although I can see how this can save time with regards to the appeals process, especially if the Cl disagrees with the decision anyway.

Thank you all for your comments.