PIP evidence to support ESA appeal

Im getting directions lately, with comment that tribunal is not bound to consider PIP evidence to support ESA as they have different sets of entitlement conditions, and any similarities are only superficial, and therefore irrelevant

Im sure there is caselaw that contradicts this?

Opinions?

Thanks

I use ESA assessments in PIP tribunals and vice versa fairly regularly where relevant.  For example, If I have a PIP decision that says my client can walk more than 200 metres without stopping and I have a contemporary ESA report which says he can’t walk more than 50 metres without stopping (wheelchair issue aside) then I will not hesitate to use it, given the proviso below.  The tribunal will then give it the appropriate weight it sees fit, according to all the facts of the case.

In fact, some tribunals have often found such reports to be the crucial evidential factor before it.  Using these reports is always a matter of good judgement of course and one has to pay attention to the report as a whole as other bits of it might be detrimental to the client’s case.

I have seen PIP appeal directions that ask the DWP to issue a copy of a ESA medical report!

An interesting one.

On the one hand WROs spent several years arguing that a report for one absolutely should not enter into the equation on the other and challenging DWP on it to the extent that the practice near died out.

Then we get the second wave where claimants start putting in reports from one to the other and have the massive irony of DWP using our own arguments to say that the two benefits are not alike and trying to exclude the reports.

And now… 😊

Bottom line is that there’s a public law principle that an organisation must use what it has and what it knows so use of one for the other is absolutely legit if not always helpful.

I think that one issue many of us had with that practice was the DWP often taking a finding in an IB report of being able to walk more than 50 yards without stopping to supersede a DLA HRM award. 

As you know, the common DLA criteria of being virtually unable to walk included manner and speed and not just distance.  And even distance itself was not a simple matter and did not even have a set figure put upon it in the statute.  The case law was clear in that the test was walking done without severe discomfort and not before the onset of severe discomfort.  And, everything led to whether a person was virtually unable to walk or not. 

Thus, if a person could walk 100 yards, several times in a row but it took him 30 minutes each time then a DM or tribunal could reasonably decide that that was tantamount to being virtually unable to walk.  In that light, a finding in an IB report of being able to walk 100 yards without stopping meant nothing in and of itself.  And what made it worse of course, was that the HCP’s often just took a simple snapshot, despite repeated warnings not to.  And that’s what used to annoy me.

In essence, there was a wide gulf between the statutory criteria for walking in the IB and DLA regulations in a way that there isn’t between the statutory criteria for walking (again, leaving the wheelchair issue aside) in the ESA and PIP regulations which are much closer together than the former.

benefitsadviser - 13 May 2020 12:33 PM

Im sure there is caselaw that contradicts this?

If there’s an argument from the Tribunal about getting such evidence I’ve been using KW v SSWP [2018] UKUT 216 (AAC) and in particular paragraph 11. You can find it here: https://www.gov.uk/administrative-appeals-tribunal-decisions/kw-v-secretary-of-state-for-work-and-pensions-pip-20-18-ukut-216-aac

I do find myself wondering if perhaps you’re seeing this from a certain judge who is named in paragraph 4 of the above? Certainly I found it rather entertaining the last time they refused my request for such evidence to be able to reply citing KW back at them. I seem to recall my request was granted shortly afterwards.

On the more general point of PIP and ESA to support each other (or not!) I tend to take the approach that there are some areas where there is overlap and in those areas it is often worth looking at and pointing to the other. The classic example would be a case where the PIP HCP has decided a client can walk 200m whilst the ESA HCP decided that they cannot walk more than 50m. My experience is that in such situations Tribunals have found the evidence from the ESA to useful when looking at my clients mobility.

But I would always choose careful where to draw the comparisons. There’s a lot of activities in ESA and PIP which do not really overlap at all. Equally there’s plenty of ESA cases where they’ve been awarded under regulations 29 or 35 which of course has no equivalent in PIP! I can’t speak to those advisers who used to argue against the inclusion of evidence from IB in DLA appeals (or vice versa I assume) but my experience is that it’s usually either helpful or irrelevant. I’ve yet to see it actively hurt my clients case (not ruling it out of course!).

Evidence from one benefit is potentially relevant to other benefits, most obviously when its something like a claimant asking for PIP mobility who has an ESA report scoring him under descriptor 1(a). It’s important to remember that just because evidence is relevant, it doesn’t mean it is necessarily decisive of anything, or even that it will necessarily carry much weight. The Tribunal receives lots of evidence, some of which may relate to the benefit specifically (PIP2, HCP report etc) and some of which won’t (medical records, reports from other benefits, letters from friends etc) and it needs to decide what to make of it all. It would be an error of law to exclude a class of evidence on the basis that it related to another benefit without dealing with what it actually does say; just as it would be an error of law for the tribunal to say “we aren’t interested in your consultant’s reports because they haven’t been written with ESA in mind”.

You asked if there are cases on this. There are loads. Here are a few.

EB v SSWP (ESA) [2015] UKUT 358 (AAC):

While the statement of reasons is technically correct in stating that there are different statutory criteria for DLA, a person’s ability or inability to walk 50 metres without severe discomfort is a practical yardstick for DLA purposes, and the requirement of severe is a more demanding test than that of significant discomfort used in the mobilising descriptor for ESA. [...]The written evidence used by the decision maker in relation to the DLA claim was plainly relevant to the ESA claim as well

JB v SSWP (ESA) [2017] UKUT 20 (AAC)

In my judgment the tribunal was not bound, in any sense, by the award of the standard rate of the mobility component of PIP. There is simply no basis to think that, as a matter of law, it was. [...] That said, it is the case that evidence underlying a PIP decision might be relevant to an ESA decision. Mr Hampton recognises that in saying about the PIP award “the evidence on which that award was based may be of importance and is therefore of potential relevance to an ESA claim”. In my judgment he is right to say that.

KW v SSWP (PIP) [2018] UKUT 216 (AAC) and cases cited therein

See also CH & KN v SSWP (PIP) [2018] UKUT 330 (AAC) dealing with the same problem regarding DLA evidence in PIP cases.