PIP Appeal negatively impacting on a WCA decision for UC

We’ve had a slightly alarming development with a PIP appeal that we’re currently dealing with. We submitted a PIP appeal and have now made it to the point that we’re awaiting a Tribunal hearing date (listed for a few weeks from now, presumably why PIP have been looking at it). This afternoon we had further response from the DWP in regards to the PIP appeal (the letter came via HMCTS and numbered for addition to the bundle) which has told us that this decision maker has spotted a mistake made by a UC DM when they were dealing with the same clients WCA and awarded them LCWRA when they should have awarded LCW. A copy of the letter is attached.

Now, for this client, the financial consequence is likely to be limited to one or two months overpayment as the WCA was quite recent (not great, clearly, but not as bad as if it went back say two years). But we’re quite alarmed by this and the implications it has for our advice for other clients going forward.

Typically we’ve always felt confident that we can advise someone who wishes to do an MR or an appeal of, say, a PIP decision that doesn’t award them any points, that the worst that can happen is that the decision is unchanged so they’ve wasted time and effort (obviously we’d always warn that your award could go down as well as up if there was one in place already).

Now however we’re thinking that what we actually need to advise is that the PIP response writer (or similar) could look at your WCA decision and if they spot a mistake send it back to UC for them to change potentially triggering substantial recoverable overpayments. Presumably the same applies vice versa. You MR/appeal a WCA decision and they look at the PIP assessment and spot an error and refer it over to the PIP DM to revise.

Thoughts? Is this something that other people have seen? Are we just being paranoid?

It ebbs and flows doesn’t it. First they tried using ESA HCP reports for PIP and vice verse and under challenge from the likes of us they backed down in the face of various decisions. Then some WROs started down the line of “actually using the former for the latter and vice verse can have some benefits”. I have never agreed with that and never will but it remains the case that some of us do it and, understandably, few will do so with thought to wider consequences.

The reality is that DWP are a public body and have a public law duty to use what they have. We like that obligation when the pendulum swings for our client but dislike it when it swings against.

Overall my inclination is to note that this is happening more often and they are likely right to do so in many instances but not all.

This particular event seems to be a completely freak occurrence of a PIP DM having noted that the WCA decision is based on a failure to read the report properly. The PIP DM seems to have made submissions which are limited to matters relevant to the PIP decision. Whether a UC overpayment follows from that is not within their control.

You can’t advise people on the basis that some completely unrelated matter might emerge out of the woodwork and somehow undermine their position.

Certainly you get the odd case where something about an award is a little suspect and you say “well you do have to bear in mind that bringing a challenge about issue X might draw attention to issue Y”

It will of course be up to the UC DM and not the PIP DM to make a decision on entitlement to LCWRA. It could be that the UC DM took other factors into account in making the LCWRA decision and it wasn’t the ‘mistake’ it appears to be. As claimants are often told, its the DM who makes the decision not the HCP so they are not duty bound to accept their recommendations in all instances.

Any decision can only be changed by way of appeal, supersession or revision and the client is entitled to rely on the ‘finality of decisions’ provisions in the Social Security Act 1998. So whilst they can supersede on the basis of new information this shouldn’t then generate an overpayment for this client or others in similar circs in the future. Knowing how slowly UC work I wouldn’t expect them to act on the information any time soon in any case.

But - hang on a minute.
The Decision Maker doesn’t have to follow the HCP’s recommendation.
And it’s the client’s health at the time of the decision not the assessment that it is relevant.
Or the decision could have been MR’d since.

I know it’s unheard of for a UC DM not to follow the HCP recommendation and the time scales make it highly unlikely that my last 2 points could apply.  But the point that I am trying to make is that it’s not really possible for a PIP DM to state so categorically that the UC DM has made a mistake.

Also - has there been an overpayment?  A DM has determined that the client has LCWRA.  That can only be changed by a new determination, which surely would involve new WCA referral, new assessment.

Whilst a DM can indeed disagree with a HCP, the suggestion is that this is not what happened here and that it is a simple comprehension error:

The decision maker has noted the system to state they agree with the HCP’s recommendation, however, has marked the system as [name] having limited capability for work-related activity (LCWRA)

Without seeking to do the DWP’s job for them, they would argue that the resulting decision can be revised for official error (reg 9 D&A) and this can create an overpayment which, for UC, would be recoverable.

The same would categorically not be true in a case where it was being suggested that the UC DM had exercised their judgment in a way which was overly-generous. In that case there would be no obviously applicable ground for revision and the DWP would be stuck with the decision as per s17 SSA.

Veering off topic (apols. but it’s Friday and my brain is allowed to veer) but is it unheard of for a DM to not follow the recommendations of a HCP? I’ve had multiple cases where that absolutely hasn’t happened.

Had the DM reject the HCP report as obviously sub par etc. and send it back without making a decision.

Had the DM accept the HCP report but not accept certain zero points recommendations and put points in place.

Had the DM reject the report and accept the anecdotal detail in (my) claim packs.