Tribunal’s Rejection of DWP Request to Correct Decision re PIP Appeal

I would be grateful for your advice on the following:

I represented a client at a PIP appeal in December, the date of the DWP’s decision being October 2017.  He was awarded standard rate daily living until 2020.  However, the DWP have applied for a correction of this decision, stating that he made a new PIP claim in February of last year so their award should only go up to that point, i.e. it should be a closed period award.  The Tribunal have rejected this saying that neither party alerted them to this and since there wasn’t an ‘accidental slip or omission’, the decision stands. 

Looking at our case recording, I can now see that the client attended an appointment with another adviser in April of last year.  He presented with a PIP2 form but also correspondence from HMCTS regarding his appeal.  The adviser told him that if he progressed his new claim, any award granted on appeal would be for a closed period.  Therefore, he chose NOT to progress the new claim and the PIP2 wasn’t completed.  I think the adviser assumed that by not completing the questionnaire, his new claim wouldn’t progress and there would be nothing stopping the tribunal awarding the benefit moving forward.

Two points:

1) Page 751 of the CPAG handbook confirms that the date of claim for PIP is usually the date of the PIP1 phone call. Are the DWP therefore correct that his award should be for a closed period as he made a new claim simply by making the PIP1 call? 
2) More relevant to this forum, the Tribunal want us and the DWP to make submissions on the best way to go forward, citing any relevant case law.  In other words, they want us to put forward an argument backing up their decision not to change their original decision to award the client PIP moving forward.  I wondered if you have any suggestions.

Thanks!

SClark01 - 21 January 2019 03:41 PM

I would be grateful for your advice on the following:

I represented a client at a PIP appeal in December, the date of the DWP’s decision being October 2017.  He was awarded standard rate daily living until 2020.  However, the DWP have applied for a correction of this decision, stating that he made a new PIP claim in February of last year so their award should only go up to that point, i.e. it should be a closed period award.  The Tribunal have rejected this saying that neither party alerted them to this and since there wasn’t an ‘accidental slip or omission’, the decision stands. 

Looking at our case recording, I can now see that the client attended an appointment with another adviser in April of last year.  He presented with a PIP2 form but also correspondence from HMCTS regarding his appeal.  The adviser told him that if he progressed his new claim, any award granted on appeal would be for a closed period.  Therefore, he chose NOT to progress the new claim and the PIP2 wasn’t completed.  I think the adviser assumed that by not completing the questionnaire, his new claim wouldn’t progress and there would be nothing stopping the tribunal awarding the benefit moving forward.

Two points:

1) Page 751 of the CPAG handbook confirms that the date of claim for PIP is usually the date of the PIP1 phone call. Are the DWP therefore correct that his award should be for a closed period as he made a new claim simply by making the PIP1 call? 
2) More relevant to this forum, the Tribunal want us and the DWP to make submissions on the best way to go forward, citing any relevant case law.  In other words, they want us to put forward an argument backing up their decision not to change their original decision to award the client PIP moving forward.  I wondered if you have any suggestions.

Thanks!

Messy!

In terms of the tribunal decision I think there are two ways to look at it, neither of which ends up in favour of the client unfortunately. The first approach would be the one the DWP are trying to take - i.e. that as a new claim had been subsequently made the Tribunal did not have the jurisdiction to make an award past this date. The second approach would be closer to the argument the Tribunal is making - that the Tribunal is placing themselves in the shoes of the October 2017 decision maker who had the freedom to make an award of whatever length. However the follow on from that approach is that a subsequent decision (I assume to refuse the second PIP claim for not returning the PIP2) can supersede the Tribunal’s decision - leaving a closed period award. I think the latter approach is probably correct and the DWP don’t need to worry about getting the Tribunal decision amended - they can just treat it as having been superseded by the more recent decision

Assuming you agree with this analysis (and that there isn’t somebody more experienced than me that is able to find away around the problem) I think that the only thing you can really do is write to the Tribunal in those terms.

I think that the DWP are correct to say that the new claim started with the phone call and can’t be ‘voided’ by the failure to return the PIP2.

My suggestion would be to put in a late MR of the decision to end the second claim. You’d be arguing that the client had good cause for failing to return the PIP2 as they were given incorrect advice not to return it. My understanding is that if the DWP reject the MR request as late you can still put in a tribunal appeal out of time. Assuming good cause is accepted that gets his second claim back up and running and any subsequent entitlement decision can be backdated to the date that claim was made. If the the DWP did not accept good cause at MR stage I’d be making another new claim as insurance against good cause not being accepted at tribunal.

Why one wonders do the tribunal think their decision cannot be set aside?

Hi there

Thanks for your reply SamW. 

I have looked into the date of claim for PIP, including the regs that CPAG quote - reg 12(1)(b), UC, PIP, JSA & ESA (C&P) Regs 2013; this states that the date of claim “In the case of a claim made by telephone, (is) the date on which a claim made by telephone is properly completed”.  Applying this, a new claim was made when he completed the PIP1 call and we can assume that a negative determination was issued when he failed to return the PIP2.

Mike, the Tribunal Judge said that they had no record of the existence of a new claim so their decision isn’t due to an accident or omission.  The Judge has used regulation 36 of the Tribunal Procedure (First-Tier Tribunal) (Social Entitlement Chamber) Rules 2008 to back this up.  Both the department and ourselves have been directed to make submissions on the ‘appropriate way ahead’ and I’ve been struggling to come up with something in support of the tribunal’s decision to stick to their guns.  SamW, I see your point re the tribunal putting themselves in the same position as the decision maker in October 2017 however, it does sound to me as though they can apply the above legislation to close the award period on the previous claim. 

Susan

SClark01 - 22 January 2019 01:59 PM

Hi there

Thanks for your reply SamW. 

Mike, the Tribunal Judge said that they had no record of the existence of a new claim so their decision isn’t due to an accident or omission.  The Judge has used regulation 36 of the Tribunal Procedure (First-Tier Tribunal) (Social Entitlement Chamber) Rules 2008 to back this up.  And, this is what I’m struggling with.  I’ve been directed to make a submission ‘addressing the appropriate way ahead along with any case law’.  It would be brilliant if I could come up with something to support the tribunal’s decision to stick to their guns but I haven’t found anything yet.  If I can’t, then I might need to simply say that we intend to pursue an MR of the negative determination decision to try and secure entitlement moving forward. 

Susan

A decision can be set aside if documents which ought to have been before the tribunal were omitted.

Hello

I’ve been reading this thread and is it not arguable that the new claim being refused is of no consequence to the existing award?

In CPAG it appears that the failure to return a questionnaire is governed by one set of regulations for new claims and another set of regs for existing claims (I haven’t looked up the regs as I don’t have time but there are different regs referenced - p755). So if the new claim was refused for failure to comply under the regs governing new claims, you could argue that this decision has no legal force on the existing claim, because it wasn’t a new claim at that point. The DWP would basically be saying, we’ve got grounds to supersede, in that the client failed to comply with the new claims process, but you could argue that in fact he didn’t fail to comply with the new claims process in respect of the original claim (the one ruled on by the Tribunal) so the regs they are using can’t apply.

I don’t have any case law to back this up, it was just a thought that occurred on reading the post, and it may well not work. Obviously, I would argue this alongside the arguments previously suggested - that there was good cause/reason (I can’t remember off the top of my head which it is for PIP) for failure to return the PIP2.

Sorry for the waffling post and as I say I haven’t time to look up the regs today, it was just a thought, so I may well be wrong.

Alex

i dont think doing anything to the appeal decision puts your client any further forward as surely the new decision (on the new claim refused for failure to return the pip2) cannot be touched as a part of that appeal?

going down a late appeal for good cause route appears on the face of it to be the way to go there…..this of course assumes the dwp dont take the even more sensible approach which would be to just change the refusal for failure to return and accept the decision of the tribunal.

i think mike could be right re the documents not being received could be a route to correct the tribunal decision but i dont see that as the issue anyway as the second claim would superscede the tribunal decision whatever date they awarded to

I would add to my post that I agree that the original Tribunal won’t be able to make the favourable decision I proposed, as it concerns events that occurred after the original decision. I think they should stick to their guns - they’re standing in the decision maker’s shoes. I personally don’t see why the DWP are kicking up a fuss about the Tribunal not making an award for a closed period - the Tribunal don’t have jurisdiction to do that, they have jurisdiction to make a decision for a length of time they see fit and then it’s for the DWP to supersede it from a later date (ie the date of the new claim) if that’s what they want to do. You’ll then need to MR and then if necessary appeal that supersession decision, on the grounds that the DWP didn’t have scope to terminate the original claim due to the failure to comply with the new claims process (as I argued above); or, alternatively, that there was good cause/reason for failure to comply. If the Tribunal were to make the decision for a closed period that only runs to the date of the new claim, they would effectively be making the DWP’s supersession decision for them, which they don’t have the jurisdiction to do.