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DWP’s responsibility to arrange an assessment having decided client already eligible for award
Is it my understanding that Reg 9 directs the DWP to carry out a medical assessment having already decided that the applicant is to be made an award whether it be standard or enhanced daily living or mobility.
Reg 9 looks like the DWP can refuse an application based on the contents of the PIP 1 itself eg the applicant hasn’t satisfied the encouragement or supervision needs or eg the applicant has only argued for 1 to 7 points only. It’s then under Reg 9 that the DWP do not have to offer a medical.
So if the applicant is required to attend a medical, can they expect an award whether standard or enhanced and if this is the case can the applicant then offer to receive the lower award without attending the medical.
The problem is Reg 9(2) and 10.
One of my clients was advised in writing that they would receive a home based assessment even when not request such a home visit. Two days before this appt client is told by ATOS that the appt cannot be carried out due to non availability of the Medical Assessor. Client advisesATOS that he/she is willing to attend an assessment centre to get the matter dealt with. ATOS direct client to attend a centre the next day at 9.15am. Again later the same day ATOS further advise that this appt can no longer be met. Client now requests a weekend appt at a centre anywhere in the East of England due to forthcoming pre-booked holiday and due to the start of full time employment. Atos state they cannot give the client appt due to lack of future availability.Client now forwards supporting medical GP evidence andasks the DWP to progress the claim.
Has the DWP failed to arrange an assessment as per Reg 9 and any further ideas welcome.
[ Edited: 31 Jul 2016 at 01:51 pm by J.Mckendrick ]Nope. “Where it falls to be decided” doesn’t mean it has been. It means it’s at issue because the claim has been accepted as valid in other respects and the next stage has now arrived. No determination as to points has been made until after a decision as to whether a face to face or equivalent has been decided.
As far as the concept of there being a failure? I would think not. The regulation in question says they “may” not that they “must”. There is no “required”. Therefore a claimant would be expected to attend until ATOS say they’re not. ATOS et al have a financial incentive to arrange such things but if it doesn’t happen for whatever reason then a DM can simply go on and make a decision based on the form and any other submitted evidence. In light of the quality of a significant number of HCP reports that’s sometimes a desirable outcome. In your case ATOS have moved from attend to don’t have to so Regs 9(2) and 10 don’t enter it as the claimant hasn’t failed to attend in any sense.
Whilst I appreciate we all use shorthand could I suggest that encouragement and supervision are misleading terms to use with regard to PIP Daily Living. They are DLA terms and we’re not in Kansas any more.
Reg 9(1) PIP Regs does seem to suggest that the purpose of a medical assessment is to decide whether the Applicant should receive a standard or enhanced award of PIP. This could be the case because the Decision Maker (“DM”) can make an outright award or a negative determination based on the contents of the PIP1 application form itself. Reg 9 may be a way of limiting the DWP in arranging expensive medicals to do all the work eg getting the Medical Assessor (“MA”) to make a negative determination or suggest the std or enhanced award.
Reg 23 ESA regs 2008 is different because it does allow the DM to organise a medical in order to determine all the outcomes ie limited capability for work, support group or fit for work.
Reg 9 may be suggesting that in order for a DM to organise a medical assessment he or she must be happy that the Applicant is already eligible for a standard award at this point but wants the go ahead from a MA to confirm an enhanced award or confirm the initial findings of a standard award.
So when clients fail to gain any award after attending a medical, I wonder whether it could be argued that the DM has already determined at least a standard award prior to the client attending the assessment and that the MA’s opinion is irrelevant as the horse has already bolted ie a standard award has already been made.
Lastly don’t understand the Kansas remark!
As already posted, reg 9 is not suggesting any of that. Not sure there’s anything to be added to that.
The “Kansas” remark was a reference to the Wizard of Oz and the fact that PIP daily living has little relationship to DLA care. The terms you used were relevant to DLA care but not PIP.
Well we can all interpret things differently - could test the argument at a FTT.
You can ask for the assessment to be expedited within reasonable timescale e.g. 28 days and then complain if this doesn’t happen.
You could also consider JR if delay is uncommonly long and CPAG’s current test case criteria includes delay related to PIP cases.
Well we can all interpret things differently - could test the argument at a FTT.
I really wouldn’t try that.
Well we can all interpret things differently - could test the argument at a FTT.
I really wouldn’t try this at FTT. I see no ambiguity in 9 or 10 in wording or intent and at no point since the NAA48 have we even an inkling of a benefit with the process you propose. This forums expertise identifying matters open to interpretation, whether low hanging fruit or more complex, has nowhere seen your interpretation offered up since the first draft regs were posted. There’s plenty of low hanging fruit with PIP but not here.
Once your clients HV had fallen through I’d have either left it alone and let them get on with making a decision or pursued a complaint if your client was so minded. However, given the anxiety most clients have at the prospect of seeing ATOS I’m not sure having a couple of cancellations followed by a lack of availability is an especially fruitful basis for a complaint.
Again, it’s all open to one’s interpretation and that’s why we have FTTs, Upper Tribunals and the Court of Appeal etc to help make sense of our wonderful legislation. Anyway who would have guessed a walking stick could be deemed to be an aid/adaption without putting up a valid argument for it!
Fresh pair of eyes here - I normally only deal with means-tested benefits, so just been reading Reg 9 of the PIP REgs for the first time.
If I understand the OP’s argument correctly, the words “where it falls to be determined whether C has limited ability or severely limited ability ...” should be interpreted as referring to a situation where it has been established in principle that one or the other applies and the purpose of attending a consultation is so that DWP can decide which one - limited or severely limited. But plain limited is the worst that can happen.
Sorry, I have to agree with the others who don’t buy that. I read it as referring to a determination as to whether C’s ability is limited, severely limited or not limited. All outcomes are still on the table in a Reg 9 assessment I think.
Many thanks for your valued thoughts.
.JM
Critically, if this reading of reg 9 is correct (I really don’t think it is), it applies by analogy to reg 8 which is almost identically worded, The DWP would therefore have no power to compel completion of a PIP2 unless they somehow already had evidence that an award was definitely merited. Surely that would cause the whole system to implode.
Could it be that Reg 8 allows the DWP to request “any information” to determine a std or enhanced award having already received the PIP2 application eg written proof from a GP detailing a specific strength of a specific medication or a Consultant’s report etc. Again this info (ie any information) received may persuade the DWP to make an award(or not to) and then Reg 9 dictates a medical takes place to determine whether std or enhanced!
No it couldn’t. Both regulation 8 and 9 are quite clear that in deciding whether a claimant has limited ability or severly limited ability to carry out daily living activities or mobility activities, the SoS/DWP can require the claimant to provide further information (reg.8) and/or attend and participate in a consultation in person or participate in a consultation by phone (reg.9).
Absolutely nowhere in either regulation is there the merest suggestion that any award of any description has been contemplated, merely that the question of entitlement requires a further evidence in order to make a decision. As Mike said above, that also weeds out “invalid” claims. Of course there will be the odd case where the SoS.DWP may decide to make an award without the necessity for further evidence or an assessment but to suggest that the wording here “proves” an award of standard component of either is simply way wide of the mark.
To put it another way, both regulations are saying the evidence is required to decide whether the claimant has limited ability or whether they have severly limited ability - there is a clear question as to entitlement under both, not a simple comparison between the two. The answer to both questions could both be “no”.
Please, if your client is experiencing delays, spend some time trying to expedite the asssessment. This line of argument will get you (and you client and that’s who is most important here) absolutely nowhere.
The risk you take pursuing this to FTT is around credibility. That in turn potentially impacts tribunals view of your repping on future cases. Word soon gets around via clerks etc.
I am tempted to say the argument posited is clutching at straws but I would hope the advice posted clearly suggests there is no straw to be clutched at and nothing to be interpreted here at all.
Thank you Paul for your considered advice which I will take on board. Also I already have an excellent reputation at FTTs both in England and Scotland.
[ Edited: 2 Aug 2016 at 11:36 am by J.Mckendrick ]