DLA disallowed due to late return of PIP form .... late form ‘accepted’ by Decison Maker but DLA not re-instated pending decision

Hello all

It’s late in the day but all thoughts appreciated….

Client was contacted by DWP to apply for PIP late last year however due to their serious MH issues as well as complex physical health difficulties the form was unfortunately submitted late. DWP had already disallowed DLA due to ‘non compliance’ with PIP process several days after client had contacted DWP to explain again the unavoidable reasons for the delay.

When the PIP form was eventually received DWP accepted that client had ‘good cause’ to submit the form late but the decision maker then declined to reinstate DLA payments pending a PIP decision. Apparently client was advised instead that if PIP was awarded they would back-date the award to the date of the DLA disallowance.

Unfortunately PIP not awarded so disallowance of DLA award remains unchanged, client is understandably very upset and reconsideration is pending of disallowance but no one appears able to tell us why the original decision to close the DLA claim was not reconsidered when the PIP claim form was received.

Advice and suggestions welcome as this case is the latest in a very long line of clients being awarded 0 points…..

Thanks in advance :)

When the DM declined to reinstate DLA payments pending the outcome of the PIP decision, was this challenged? It seems like the good cause appeal was for the late PIP form to be accepted as a valid PIP claim but this may not be the same as automatically meaning DLA should be reinstated. Or am I missing something?

Client challenged the decision but has never had any acknowledgement of letters sent. DWP state they can only re-instate payment of DLA pending a PIP decision if a procedural irregularity is identified. A late form is not deemed to meet that criteria as it is down to the client not DWP….

http://www.rightsnet.org.uk/forums/viewthread/9640/

suggests that if additional support needs were identified, they might be less hasty. Is this a factor in your client’s case?

We consider it to be a significant factor - thanks for the link - in our view DWP should provide evidence that they made a referral to their own visiting service to provide support for the client before they can reasonably justify refusing to re-instate the award.

We await a copy of the actual decision refusing to re-instate the award once the PIP form was received back.

No doubt their usual backlog…....

We discussed this at one of stakeholder meetings (see thread here http://www.rightsnet.org.uk/forums/viewthread/9640/#43623) - reg 11 of the PIP (TP) Regs (http://www.legislation.gov.uk/uksi/2013/387) states -

Termination of entitlement to disability living allowance following failure to claim personal independence payment
11.—(1) Where a notice is sent to a notified person under paragraph 10(1) and the person makes no claim for personal independence payment before the end of the period specified in regulation 10(1)(c), the person’s entitlement to disability living allowance shall terminate with effect from the day on which the suspension of the person’s entitlement took effect in accordance with regulation 9(2).

(a)informing the person that the person’s entitlement to disability living allowance has terminated and of the date on which the termination took effect, and
(b)explaining that it is no longer possible for the person’s entitlement to disability living allowance to be reinstated but that it remains open to the person to claim personal independence payment.

There is no provision to argue good cause for the reason for failure. This is the information we were given by the PIP complaints resolution manager -

‘When we invite someone to claim PIP and they don’t contact us we check the DLA system to see if they have any of the conditions that are covered by additional support before we apply a suspension. If they do we arrange for the Visiting Team to go out and complete a PIP1, (and PIP2 and a BF56 if possible), or help them make the call. We do not suspend the DLA on these cases. As you already know the question of additional support is asked during the initial PIP1 claim call. If we are informed that someone is additional support before we make a decision on the PIP then we can change this on the PIP system and refer it to the assessment provider.

Once a decision has been made in respect of entitlement to PIP, DLA will end. The date it will end will be dependent on what the PIP decision was. If the PIP decision was to disallow because of a failure to provide information or failure to attend a consultation then DLA will end 14 days following the start of the next DLA payday.

The ending of DLA is based on the precept that the correct legislation has been applied during the disallowance of the PIP claim. If the law had not been followed the result could be described as falling outside the law. In these cases we consider it appropriate to reinstate DLA as the termination should never have happened. E.g. claimant failed to attend but was only given 5 days notice of the appointment and had not agreed to that time. Social Security (Personal Independence Payment) Regulation 2013 Reg 9(3).

Where the legislation has been applied then there is no power to reinstate DLA even if we were to consider that on the facts of the cases post disallowance that we would have come to a different determination. However legislation allows for this circumstance and if following a revision or appeal of the disallowance, PIP is awarded. the effective date will be from the day after DLA ended, in effect backdated.

The circumstance of additional support consideration is not a matter for legislation, as such DLA could not be reinstated.’

Liz S - 04 August 2016 04:32 PM

..the form was unfortunately submitted late.

That sounds like the claim was made over the phone but the Pip2 form wasn’t returned in time.  In which case, I don’t think Reg 11 is relevant.  Instead, it would be Reg 13 Pip (TP) Regs 2013 together with Reg 8 Pip Regs.  In which case, see my post in the same thread to which Daphne provides a link above.

Good point Tom - missed that - thought it was a failure to claim