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Forum Home  →  Discussion  →  Decision making and appeals  →  Thread

DLA and PIP confusion of relevant dates. 

JACNCC
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Apologies for the confusing title, but I was unsure how to make it more concise!

I am looking for opinions as to whether I should be challenging the following decision;

Client was in receipt of DLA at the middle rate of care and low rate mobility. In October 2019, the client was invited to claim PIP and the form was sent to her last known address, but at this point she had been sectioned in the local mental health facility and the PIP2 form was not completed. At this point “good cause” was accepted for the non return.

There was a 2nd PIP 2 form sent out in December, but at this point the client was sofa surfing and had the local Job Centre as the correspondence address - again the PIP 2 form was not completed.

Client was housed in temporary accommodation in February 2020, and received a decision letter that her PIP claim was closed (March 2020).

I became involved in April 2020 and requested that the DWP accept “good cause”. This was initially as a telephone call and I was advised that they would accept the reasons given. One month passes by and no PIP 2 materialises.

A further call is made and I was advised that a DM refused the request, so at this point I completed an CRMR1 (beginning of June). I chased this up 8 weeks later by telephone and again had a conversation with a DM, who was adamant that “good cause” could only be accepted once. I requested this is writing, but it never came, so I started the appeal process.

Tribunal Services responded that I could not appeal, as there had not been an MR. I pointed out that I had completed one, but DWP/PIP had failed to send me a decision. TS sent a direction to the DWP to respond to the MR.

DWP failed to respond, so TS accepted a valid appeal as being lodged and sent directions for a representing officer attend the hearing. At this point (September 2020) we decided to make a new PIP application.

In March 2021, the DWP revise the decision on the original claim (October 2020) and accepted “good cause” for the non return of the PIP 2 form.

April 2021 see’s a decision made on the new claim that was made in September 2020 and the client was awarded the ER of both components.

My concern is that PIP are stating that they will only pay the award from 1 month after the date of decision and state that as good cause was accepted for not completing the PIP2 originally, then the backdating of any money due is from DLA at the lower rates.

My thought process is that if the decision on the new claim should have been made independently of the revision on the old claim (given that we could still be waiting for an appeal date) and the ER of PIP should be payable from the September 2020.

I could understand that DLA would only be payable up to the date before the new claim was started- Or am I missing something?

Many thanks if you got this far!

Paul_Treloar_AgeUK
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See p.611 of CPAG 2021/22, your DLA award ends four weeks after the next DLA payday after the decision is made on your PIP claim (whether or not PIP is awarded). Your entitlement to PIP starts from the day after this.

So I think SWP are correct in your client’s case. The good cause issue simply relates to the arrears of DLA for the intervening period until the decision awarding PIP was actually made.

JACNCC
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Hi Paul

So you don’t think that there is any argument in the fact that the PIP claim in September was a new claim and not instigated by them as such? Possible to argue that the September claim should be treated as a change of circs following a worsening of a condition?

I think I am just stuck on the fact that if we had not put in a new claim and waited for the appeal (if they hadn’t revised) then that would add an even further delay.

Elliot Kent
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This is quite a difficult case and has not really been assisted by a number of the steps you have described above making no sort of legal sense (which I’m sure is not your fault).

When the second PIP2 was not returned and the DWP decided that your client did not have good reason for not having returned it (albeit apparently for the nonsense reason that you only get one shot) the decision ought to have been that (1) your client did not qualify for an award of PIP because of a negative determination as a result of not returning the form - reg 8(3) PIP Regs and (2) consequently his DLA came to an end 14 days later - reg 13(1) PIP (TP) Regs.

It’s instructive to note that the entitlement decision is that there is no PIP entitlement. The fact that the form was not returned is the reason for that decision, not the decision itself.

There is no theoretical reason why the decision that he is not entitled to PIP cannot be revised and replaced with a decision that he is entitled to PIP. This possibility is acknowledged in reg 13(2) and 17(2)(b) of the PIP (TP) Regs which provide that in such a case the PIP entitlement will apply from the day after the original termination of the DLA award.

So yes, there is a valid argument that the March 2020 decision can be revised in view of the material on which PIP has now been awarded with the effect that the DLA is paid for 14 days following that decision and then gets replaced with PIP ER/ER.

There is a further fly in the ointment which is the DWP guidance document ADM Memo 24/18. This deals with the concept of reinstatement of DLA where “good reason is accepted”. The DWP may argue that this Memo requires them to revise the March 2020 decision in such a way that DLA is reinstated. This effectively would then mean that the March 2020 decision disappears into dust. This would normally be a good thing, as on the whole it is a more generous benefit, but it would be bad for your client.

I am not sure that the memo is really right about much of anything, but certainly I don’t see why it would preclude the procedure from the TP regs being followed in the manner described above.

See also AI v SSWP (PIP) [2019] UKUT 103 (AAC) and CPIP/1440/2018 (which you can’t see because its unpublished - but I can send you a copy if you like) for discussion of some of the concepts above.

Edit: Fixing some dates and now I think that actually I am arguing for more benefit than you were…

[ Edited: 13 May 2021 at 05:19 pm by Elliot Kent ]
BC Welfare Rights
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[ Edited: 13 May 2021 at 05:09 pm by BC Welfare Rights ]
Paul_Treloar_AgeUK
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You’re arguing then that the good cause appeal should also decide whether PIP should have been awarded from an earlier date? I think this has been discussed on these boards but I don’t have the threads to hand and I’m just about to finish for a week so hopefully someone might be able to offer up something.

BC Welfare Rights
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I think that the problem might be whether he actually made a separate claim in relation to the Oct 19 transfer from DLA or whether the Sept 2020 ‘new’ claim was one and the same thing as the transfer claim.  Looking at the UC etc C&P regs, reg 11, a claim for PIP has to be made:

(a)in writing on a form authorised by the Secretary of State for that purpose and completed in accordance with the instructions on the form;
(b)by telephone call to the telephone number specified by the Secretary of State; or
(c)by receipt by the claimant of a telephone call from the Secretary of State made for the purpose of enabling a claim for personal independence payment to be made

And I am guessing none of these things were done until Sept 2020? In which case I think that the DWP is correct.
Edit
I was about to add that I would wait and see what Elliot thinks though when we cross posted : )
Have also realised that he must have made the initial phone call in order to have been sent the PIP2 in the first place. So just ignore me.

[ Edited: 13 May 2021 at 05:10 pm by BC Welfare Rights ]
JACNCC
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Just to clarify a few points.. The client did make a claim in the October 2019 following an invitation to do so from PIP.

I wouldn’t be arguing that PIP should go back to March 2020, as if good cause had been accepted at that point, then DLA would have carried on being paid and we would have completed a PIP 2 form, as they would have re-issued it.

The date that I would say is relevant is the date of the new claim that was made in September 2020.

If PIP had not taken the decision to revise, then we would likely still be waiting for an appeal date, and the decision that has recently been made on the September claim, would have to have been backdated to then.

If we’d had to go to an appeal, would the Tribunal only have looked at the October 2019 to September 2020 timeframes?

Elliot, can you forward me the unpublished decision that you mentioned?

Many thanks

Elliot Kent
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Yes, if that is your argument, I don’t think it works. If you are content to say that once ‘good reason was accepted’, this had the consequence that the March 2020 decision goes away and DLA gets reinstated, then it follows from that the client was a transfer claimant when the decision was made in April 2021 that he was in fact entitled to PIP. That means he gets DLA for 28 days after that decision and then PIP. Whilst you can complain that your client was put to all manner of administrative hassle in the meantime, it doesn’t change the analysis.

The point of difference which I think means my argument works and yours doesn’t is that I would not accept that the acceptance of good reason does cause the March 2020 decision to go away - instead I am saying that decision can be revised and replaced with a decision that your client is entitled to PIP - because the ‘acceptance of good reason’ only gets rid of the reason for the decision and not the decision itself, and it remains open to the DM or Tribunal to substitute any valid alternative decision including a decision that your client is entitled to PIP.

I couldn’t send the case I was referring to you by a message for some reason - but I’ve attached it here. Unpublished UT decisions are still public record and on reflection I don’t see any reason why I can’t.

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