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When is a PIP “claim” not a claim?
Hi, I have a new client who came to me quite late in her PIP case.
She had a successful PIP appeal hearing in Oct 2020 (S DL, S mob) but the award was time limited to June 2020 as the DWP stated client had made a new PIP claim in June 2020, which was still undecided. That new “claim” was then refused and is now at appeal following an unsuccessful MR.
My client never actually made a new PIP claim, she states she merely rang PIP in June 2020 to ask about her outstanding PIP appeal and to let them know about a change to her medication, which she thought they needed to know for the appeal. She states she was told the coc would be a new claim but she never did get a claim pack to complete.
I am now involved in the appeal and have queried the lack of claim information, i.e. there is no claim pack or evidence to show a new claim was made in the appeal bundle. This was then also picked up on by the tribunal and they issued a Directions Notice asking the DWP to provide the claim pack, or if not, a summary of a phone conversation that was treated as a claim.
DWP has accepted in a supplemental submission that a new claim pack was not completed, but state that as the client sent in her new medication info for the 1st appeal, that led them to organise a new assessment and a refusal for a “claim” made in June 2020, when she rang them.
We are now waiting for a hearing date ...
Can anyone please point me in the right direction of what legal arguments I can put forward that
- a valid claim was not made and so
- the decision under appeal should struck out and
- the new decision should be to extend the original award made at tribunal in 2020.
Many thanks
I had responded in haste but may have missed something. Questions:
1) Was the FtT decision made before or after the decision to refuse the 2nd claim?
2) What was the basis for refusal of the second claim - is it a negative determination as a result of not returning the PIP2 form?
[ Edited: 18 Feb 2022 at 11:45 am by Elliot Kent ]Okay, I have given this a little more thought. I think that perhaps my questions are actually answered in your post. I am just not paying attention.
The ordinary process would be that a claim for PIP is made on the phone to the number 0800 917 2222. It is possible, although unusual, for a claim to be made on a paper PIP1 claim form. Once the claim is made over the phone, the PIP2 form is sent out to the claimant and a medical assessment is arranged pursuant to the evidence gathering provisions of regs 8-9 PIP Regs.
From what you describe, your client’s second ‘claim’ followed a completely irregular process in that somebody at the DWP decided to treat her submission of new medical evidence as a new claim. They probably thought they were being helpful, but this is not a recognised way in which a PIP claim can be made (see reg 11(1) C&P Regs), so it is probably correct to say that it was never a claim at all.
On that basis, I think you are entitled to say that the decision on the new ‘claim’ should be set aside on the basis that there was no claim made and therefore nothing to decide.
However that doesn’t fully resolve the issue because the award made by the 2020 FtT still ends in June 2020. I don’t see that the new 2022 FtT could do anything about that because the premise of your argument is that there was no legal basis to make any decision at all. I don’t see how you can avoid the consequence that if there wasn’t a claim, the FtT doesn’t have a jurisdiction to make an award.
I think that the solution to that aspect lies in the 2020 FtT’s decision. The first FtT was operating on the basis that a claim had been made in June. It therefore limited itself to considering a closed period until June 2020. That was an error of law insofar as a claim for benefit (as opposed to a decision on a claim) does not attract finality under s17 SSA 1998 and therefore does not force a closed period award. However it was also in error of law because the claim, you argue, didn’t exist at all.
This is very similar to the error in the very recent case VO v SSWP (PIP) [2022] UKUT 13 (AAC). In that case, the FtT had erred because it had set a fixed period award by reference to a decision on a claim which the claimant had withdrawn, but the FtT was not told that.
The 2022 FtT doesn’t have jurisdiction over the 2020 FtT’s decision, however you can still make a very late application for permission to appeal against that decision. The DTJ might be encouraged to review the decision under rule 40 and substitute a later end date for the award. There are issues regarding the lack of an SOR and the lateness of the application, but I think the error you are alleging is clear enough that the FtT still ought to consider it.
So I think that it may be that its the two-stage solution of both pursuing an application for permission to appeal against the 2020 FtT decision and asking the new 2022 FtT to set aside the DWP decision on the second claim. Ideally the same Judge would deal with both aspects.
(There is another option of course which is for your client to accept, pragmatically, that the second claim does exist and argue that there was a PIP entitlement on the merits)
Many thanks for the steer, really helpful advice. Sorry it’s taken me so long to come back to you, just been one of those weeks!
I will try to get late SoR request accepted, on the grounds of the interests of natural justice, as it has only actually been accepted by the DWP in the last month that the client did not actually make a 2nd claim for PIP. I’ll make sure to put the error of law arguments into the SoR request so HMCTS can see the justification for the late request.
Many thanks
I have a pip FTT in three weeks with a client ha phone hearing). There is no PIP2 in the bundle. The claim was made in May 2021 by phone (this is a claim for the first time). The client was then assessed by phone in December 2021. The client cannot recall a form or email link received. The bundle has a cryptic reference to there being no form.
What should my approach be a) in the submission b) to the hearing?
I have a pip FTT in three weeks with a client ha phone hearing). There is no PIP2 in the bundle. The claim was made in May 2021 by phone (this is a claim for the first time). The client was then assessed by phone in December 2021. The client cannot recall a form or email link received. The bundle has a cryptic reference to there being no form.
What should my approach be a) in the submission b) to the hearing?
There is no legal requirement that the claimant be asked to complete a PIP2. In particular, a PIP2 is not a claim form - its an optional (so far as the SSWP is concerned) tool for collecting further evidence under reg 8(1) PIP Regs. The fact that neither your client nor the SSWP have any record of one being completed suggests that one wasn’t completed. There is nothing wrong with that and it has no material impact at this stage.
The approach to the appeal is the same as with any other case. Take instructions from your client as to the nature and extent of their disabilities and put forward submissions as to which descriptors apply given those instructions and the available evidence.
If you feel it is absolutely necessary, there is nothing stopping you printing out a blank PIP2, filling it in with your client and submitting it as part of the evidence for the case.
In relation to the OP here, and assuming that the appellant was happy with at least the level of the original PIP award, I’d be inclined to just accept that the phone call was a valid claim and argue entitlement accordingly. Salutary lesson for all claimants of course is that
a) a change of medication rarely amounts to a relevant change of circumstances.
b) the DWP descriptions of what amounts to a change of circumstances for most benefits, but arguably especially PIP, is simply not fit for purpose and never really has been, and,
c) if you have a representative then talk to them before you do anything.
As regards the more recent point you need to be aware that PIP has explicit processes around vulnerability and additional needs which will mean active decisions are made that a PIP 2 is not required because sufficient information is available to either make a decision or refer the matter to an AP for them to decide whether any assessment at all is required. In such circumstances the lack of a PIP 2 is often a clear cut positive.
Depending on the condition(s) - namely if there is variability, you might have to spend a bit more effort confirming the impacts of their health around the time of the decision. I usually find this the biggest challenge where there is paperwork missing.