Review (and supersession) of Special Rules award

If we excise reg 11 entirely, there is still nothing to stop the DWP investigating the claimant’s entitlement whenever they please. Once they have done that and secured a new medical report which (let us assume) confirms that the claimant no longer should be considered to be terminally ill, they are entitled to supersede under reg 26 D&A.

The significance of reg 11 not applying in this case is that they would not have been able to terminate your client’s daily living entitlement (on the basis that it is an indefinite award) had he failed to complete the form or attend the medical assessment.

See KB v SSWP (PIP) [2016] UKUT 537 (AAC) at para 15:

In his submission of 6 September 2016 Mr Spencer stated that the routine and pre-determined (as to date) re-examination of a PIP claimant’s entitlement to benefit, a process known within the Department as “planned review”, is conducted pursuant to regulation 11, with any demand that the claimant complete a new PIP2 form (with the penalty of removal of benefit for failure without good reason to comply) authorised by regulation 8. I am not sure that any statutory authority is necessary to begin such a process, in that there is nothing to stop the Secretary of State at any time during the running of an award just having a look at any case and in the course of that asking a claimant for information, documents or other evidence. What does of course need statutory authorisation is the imposition of any penalty for a failure to comply with the request/requirement. That is provided by regulation 8 and by regulation 9 in relation to a requirement to attend a consultation with a person approved by the Secretary of State (usually called a health professional) or participate in a telephone consultation. Regulation 8 applies to information or evidence “required to determine whether C has limited ability or severely limited ability to carry out daily living activities or mobility activities”. Regulation 9 applies where “it falls to be determined whether C has limited ability or severely limited ability to carry out daily living activities or mobility activities”. Those conditions will plainly be satisfied when a claim for PIP has been made and not yet determined. Regulation 11 then supplies the context within which those conditions can be satisfied after an award has been made on a claim. By providing that where an award has been made the Secretary of State can for any reason and at any time determine afresh whether the claimant continues to have limited or severely limited ability to carry out daily living and/or mobility activities, the context is created in which it can be said, as soon as the Secretary of State decides to take a look at a case (whether planned or not), evidence and information can be required to make a regulation 11 determination and the question under regulation 11 falls to be determined.

Thanks Elliot, very much as I thought. I suppose that, on appeal, the tribunal must also consider the question as to whether “special rules” criteria apply/no longer apply rather than simply taking it as given that the person no longer meets “special rules” criteria.

Brian JB - 26 September 2019 11:33 AM

Thanks Elliot, very much as I thought. I suppose that, on appeal, the tribunal must also consider the question as to whether “special rules” criteria apply/no longer apply rather than simply taking it as given that the person no longer meets “special rules” criteria.

Oh absolutely. I would assume that you would be arguing either special rules or 12+ points as alternatives.

Yes indeed, special rules is actually a weak argument in my (non medical) view but I will leave that to the tribunal. Points are the main issue.

Thanks for your help

Obviously I know nothing about your client’s medical condition(S) but remember that the current guidance for issuing a DS1500 is that the patient has a progressive disease and the issuer “would not be surprised if your patient were to die within 6 months.” https://www.gov.uk/government/publications/dwp-factual-medical-reports-guidance-for-healthcare-professionals/dwp-medical-factual-reports-a-guide-to-completion
This is a much lower threshold than saying the patient could reasonably be expected to die within six months.

Ianb - 26 September 2019 08:45 PM

Obviously I know nothing about your client’s medical condition(S) but remember that the current guidance for issuing a DS1500 is that the patient has a progressive disease and the issuer “would not be surprised if your patient were to die within 6 months.” https://www.gov.uk/government/publications/dwp-factual-medical-reports-guidance-for-healthcare-professionals/dwp-medical-factual-reports-a-guide-to-completion
This is a much lower threshold than saying the patient could reasonably be expected to die within six months.

I really wonder how many claims that should be made under the DS1500 procedure but aren’t out of ignorance of both the claimant and/or the GP especially with the ‘watering down’ of the guidance.
Certainly I can say that at least 75% of the cases that I see involve a progressive disease which by the given prognosis most could well be said to be in that category -  “would not be surprised if your patient were to die within 6 months.” .
Long term poor control of Diabetes, long term issues involving Thrombosis etc.

I myself have a few long term progressive diseases. The latest was an unrelated complaint taken to the GP that resulted in a triple heart bypass with the surgeon telling me that because of the blockages I was as close to death as one can be. This when added to my other arterial diseases could be seen as a case for a DS1500 PIP claim?

I agree that in DS1500 cases it has never been necessary to show that the client is more likely than not to die within 6 months, all you need to show is that there is a reasonable possibility that the person could die within 6 months

I have attached a copy of the argument that I regularly use in submissions where there has been a planned review.  It can easily be adapted for a DS1500 review.

You might shorten the submission considerably if the review decision was made without an HCP report however brief because the only ground for the supersession is a change of circumstances.

It is of course different if the decision is made following the renewal of a time limited DS1500 award and the decision is effective at the end of that award

By the way a supersession decision is necessarily a new decision on the whole award, not just one component (see R(IB)2/04 at [146])