Unplanned reviews

yes all normal procedure.

I think you’re absolutely right in that there has to be a RELEVANT change of circs - a new medical opinion isn’t a relevant coc - it’s a different opinion

The PA4 has a review date recommendation at page 25 or so.

The DM has the say on the length of the award - This seems to be 12months after the RDR.

The RDR seems to me to be (at the moment) a waste of time if it is carried out more than 6months before the end of an award and the assessor doesn’t identify a date of a change of circs as the DM follows (and cannot change except by agreement) the points awarded.

Hence, the RDR could be seen as a cash earning opportunity for the medical assessors or waste of everyones time unless new info comes to light.

If done within six months this could fall under the renewal procedure and then you’re looking at the post award period.

There is no legal distinction between a planned and unplanned review. They are both exercises carried out under the DWP’s general power to carry out a review at any time and for any reason per Reg 11.

Whether Reg 26(1) provides an adequate ground for supersession or whether it is necessary for there to be a change of circumstances is a discussion that we’ve had elsewhere. https://www.rightsnet.org.uk/forums/viewthread/11621/

Fwiw, my view is that reg 26 is adequate to supersede in the circumstances you describe. Conducting a supersession requires one of the grounds in Part 3 of the D&A regs to be shown. Change of circumstances is one of those grounds but receipt of medical evidence is an entirely distinct ground and can be relied on regardless of whether anything has actually changed.

What about when there is no medical examination and the claimant has returned the form saying no change? I can’t see any evidence for a change of circs then.  Ruth

Ruth Knox - 04 October 2017 01:07 PM

What about when there is no medical examination and the claimant has returned the form saying no change? I can’t see any evidence for a change of circs then.  Ruth

Provided that a HCP has supplied medical evidence, Reg 26 is still satisfied.

I agree that on the facts a tribunal ought to be reluctant to attach much weight to the view of a HCP conducting a paper based review when there is an adequate report of an examination only a year or so ago - but the mechanism is there.

(Incidentally, I haven’t seen any cases like this come up. All the reviews I’m seeing have been to a second or third assessment)

Ruth Knox - 04 October 2017 01:07 PM

What about when there is no medical examination and the claimant has returned the form saying no change? I can’t see any evidence for a change of circs then.  Ruth

On this I’d say there is a requirement to attend the medical as regulation 9(2) applies a negative determination.

Just as there is a requirement to fill in the form in the general supply of info requirements.

I don’t think there is much you can do to prevent a wrong decision by not identifying a relevant CoC.

I’d also disagree that there is a mechanism to change a decision on change of heart. It looks like there is but the regs don’t go far enough.

I did go into that in a previous post - I was hoping for a discussion but none followed.

If a later medical elicits facts that were unknown, yet in place at time of the original decision, then a new decision could be made to the fact that the original award was made in ignorance of the same.

If there is no new information then a date of the change of circs would need to be identified. IMO.

SF explains the issues I think.

John Birks - 04 October 2017 02:39 PM

I did go into that in a previous post - I was hoping for a discussion but none followed.

I figure everyone is pretty fed up of hearing from me on this topic but in the interests of discussion…

I agree that SF explains the issues well. Specifically, that there are two distinct issues.

The first issue is discussed in ground 3 of SF. It relates to the circumstances in which grounds for supersession exist. As Judge Wikeley specifically acknowledges at para 14: “this provision does not require a change of circumstances to be identified”.

The point I am trying to make really is that on a technical level, this is correct. Regs 23 and 26(1) are entirely independent of one another and there is no requirement for the decision maker to point to a change of circumstances in order to satisfy the condition precedent for supersession via reg 26(1).

I simply don’t see what argument could be made against that interpretation. The regulation says, in terms, “if you have HCP evidence, you can supersede”. If there is some ambiguity in the drafting, I can’t see it.

The second issue is discussed in ground 2 of SF and I note that this is the part of the decision your argument cites. This relates to how decision makers are supposed to go about dealing with the facts of the case. The proposition is that a DM ought to be able to offer some explanation as to why he has discarded what seemed to be a legitimate decision and replaced it with one which is totally different.

However, this side of the matter isn’t related at all to the technical grounds for supersession which exist - it relates to the quality, standard and nature of reasoning required of a DM (or realistically, an FtT). The technical ground still exists whatever the quality of the reasoning (which is why Judge Wikeley did not simply set the DWP review decision in SF aside for lacking grounds as he did in MR).

It isn’t necessary for the reasons behind the decision to relate to any of the grounds for supersession at all. It would be appropriate for a DM to reduce an award if he was of the view that the previous award was “over-generous” - provided grounds to supersede exist. Judge Wikeley makes this point by citing Viggers; a case from another context in which he found that a Tribunal had adequately explained its departure from an existing decision essentially on the basis that the existing decision was poorly reasoned and based on less information than the Tribunal had itself.

Overall then, on this analysis, it wouldn’t be enough for a Tribunal to say “we’re ignoring the old report because there is a new one and we are following Reg 26(1)” but it would be permissible for a Tribunal to say “you were awarded ER/ER two years ago, but we disagree with that view. We can’t understand how the nurse who assessed you then recommended this award - perhaps things were different then or perhaps he overstated the severity of your condition. We can’t be sure but in any event, the report bears little resemblance to your situation today. We have decided to supersede to SR/SR. We can’t be sure when or if you had a change of circumstances but we are permitted to supersede under Reg 26(1) because of the receipt of medical evidence”.

All points to there being no shortcuts on this i.e. that filling in “no change” is potentially dangerous (no criticism of the OP intended).

Strikes me that any such forms need to be completed in full; up to date further evidence obtained and reference made to the previous award and any areas of dispute and how they were resolved. So, for example, if the original award came from a FTT who in turn chose to give a HCP report little weight for specific reasons then, sadly, I suspect that will need to be re-visited and detailed.

Elliot Kent - 04 October 2017 09:11 PM

John Birks - 04 October 2017 02:39 PM

I did go into that in a previous post - I was hoping for a discussion but none followed.

I figure everyone is pretty fed up of hearing from me on this topic but in the interests of discussion…

I agree that SF explains the issues well. Specifically, that there are two distinct issues.

The first issue is discussed in ground 3 of SF. It relates to the circumstances in which grounds for supersession exist. As Judge Wikeley specifically acknowledges at para 14: “this provision does not require a change of circumstances to be identified”.

The point I am trying to make really is that on a technical level, this is correct. Regs 23 and 26(1) are entirely independent of one another and there is no requirement for the decision maker to point to a change of circumstances in order to satisfy the condition precedent for supersession via reg 26(1).

I simply don’t see what argument could be made against that interpretation. The regulation says, in terms, “if you have HCP evidence, you can supersede”. If there is some ambiguity in the drafting, I can’t see it.

The second issue is discussed in ground 2 of SF and I note that this is the part of the decision your argument cites. This relates to how decision makers are supposed to go about dealing with the facts of the case. The proposition is that a DM ought to be able to offer some explanation as to why he has discarded what seemed to be a legitimate decision and replaced it with one which is totally different.

However, this side of the matter isn’t related at all to the technical grounds for supersession which exist - it relates to the quality, standard and nature of reasoning required of a DM (or realistically, an FtT). The technical ground still exists whatever the quality of the reasoning (which is why Judge Wikeley did not simply set the DWP review decision in SF aside for lacking grounds as he did in MR).

It isn’t necessary for the reasons behind the decision to relate to any of the grounds for supersession at all. It would be appropriate for a DM to reduce an award if he was of the view that the previous award was “over-generous” - provided grounds to supersede exist. Judge Wikeley makes this point by citing Viggers; a case from another context in which he found that a Tribunal had adequately explained its departure from an existing decision essentially on the basis that the existing decision was poorly reasoned and based on less information than the Tribunal had itself.

Overall then, on this analysis, it wouldn’t be enough for a Tribunal to say “we’re ignoring the old report because there is a new one and we are following Reg 26(1)” but it would be permissible for a Tribunal to say “you were awarded ER/ER two years ago, but we disagree with that view. We can’t understand how the nurse who assessed you then recommended this award - perhaps things were different then or perhaps he overstated the severity of your condition. We can’t be sure but in any event, the report bears little resemblance to your situation today. We have decided to supersede to SR/SR. We can’t be sure when or if you had a change of circumstances but we are permitted to supersede under Reg 26(1) because of the receipt of medical evidence”.

People will get fed up. You’re right.

One of the important factors is that PIP is awarded for fixed periods and hence differs from ESA.

I’d disagree with the statement that ‘...there is no requirement for the decision maker to point to a change of circumstances in order to satisfy the condition precedent for supersession via reg 26(1).’

26(3) refers us to Schedule 1. Part2 explains at Sch1. 12.  Subject to the following provisions of this Part and to Part 4, in the case of personal independence payment, a superseding decision made on the ground of a change of circumstances takes effect on the date on which the relevant change of circumstances occurs or is expected to occur.

We therefore need the relevant change of circumstances - A new medical opinion in itself cannot be a relevant CoC. It is an opinion for the guidance of the DM - and always has been.

The DM should be using the new opinion to form a view of the claimants disability when considering the old opinion (which they were satisfied with previously) and if there is a relevant change identify the date of relevant change or state that the original decision was wrong for whatever reason - it could be that a descriptor was wrongly attributed or considered and there has always been regulations covering this issue to apply the change where it is one that could not reasonably have been known by the claimant. similarly, if there was a failure to disclose. or if something has indeed improved.

What shouldn’t happen (but does) is that the SSWP can be of two minds when considering a matter. This should be less likely to apply under PIP with prescribed activities and descriptors when applying reg 7 for instance than under say ‘frequent intervals’ for DLA for instance.

Currently the issue is the DM is led by the PIP assessor - sometimes a bit of ‘Ping Pong’ goes on in reviewing or confirming disputed descriptors inter departmentally but the ATOS opinion is followed by the DM. This is wholly wrong.

My current opinion is the early interventions are a waste of time unless a Relevant CoC can clearly be identified.

PIP seems to be awarded for a period of one year after the recommended review period. This puts the onus on the DM to find the Relevant CoC.

If the review were to come in the last six months and there was no relevant CoC but a different medical opinion the claimant would know the issues before the award was due to end and rather than the chaos of an instant cut off, would have time to brace and take appropriate action.

I believe that was how it was intended to work but the best plans of mice and etc.

A bit missing from the bottom is that as the reviews come too early - i.e. twelve months before this places the claimant with the prospect of a further medical for the renewal claim.

Good news for for the contractor- busy, busy.

The fact is the DWP seem to like to do the review early for their own convenience - unfortunately, if my view is right, this leads to lot’s of unnecessary appeals followed by a swift application.

For what it’s worth (and I appreciate that may be very little) I don’t agree with you John if what you are saying is that regulation 26(3) does anything more than simply point to Schedule 1 for a definition of what is meant by “a personal independence payment decision”.

That definition, which but for regulation 26(3) would not apply to regulation 26(1) - paragraph 19 of Schedule 1 otherwise limits the meaning of the definition to paragraphs 13 and 16 of that Schedule - does not subject the power to supersede in regulation 26(1) to the other provisions of Schedule 1 which, together with regulations 34 to 37,  provides exceptions to the provisions of Section 10(5) as the date from which a supersession decision is effective.

However, it is clearly open to supersede a decision also where there is a relevant change of circumstances, and that may result in the general rule at Section 10(5) not providing the effective date for the supersession decision, depending on whether any of the excepting provisions apply.

I don’t follow tbh.

I’m not saying that only by referring to the schedule can the argument be made.

I’m saying the matter is the same as it has always been. It may be because I’m seeing it a bit too simply. (Something to do with being from Stoke apparently.) Or maybe I just don’t get it full stop?

For me, it’s simply a matter of whether a relevant change of circumstance is required to supersede or not.

Is the argument as follows?

It is enshrined in law that -
- following a medical assessment
- if the opinion of the HCP reaches different conclusions on the same facts
- then this is a ‘relevant change of circumstances’ to supersede an award (eitherway)
- or terminate the earlier award at an earlier date than specified.

If this is the case it will make the job much easier for me.

I’m still of the belief that the DM must identify from the evidence the change since or mistake (or failure to disclose etc etc) in the earlier decision.

I don’t claim to have an answer and note again the discussion at https://www.rightsnet.org.uk/forums/viewthread/11621/

I also note that in Ruth’s original post she referred to an ‘unplanned intervention’ but I think she must be referring to a ‘planned intervention’ - where the SSWP initiates action under PIP Reg 11 to ‘re-determine’ an award at any time (usually about 12 months before the existing award expires - but I have seen such requests at a date well in advance of 12 months). The SSWP requires the claimant to complete a ‘review form’ (either a PIP2 or PIP1043) and then makes a new decision (with or without the need to attend a F2F assessment).

I suggest this process is (should be) regarded as seperate to an application for a ‘supersession’ made by a claimant (or on the SSWPs own initiative) under SSA s10 and UC, PIP (DA) Reg 23.

The question of whether these two provisions / processes are seperate and what that means in practice I suggest is not addressed or at least answered satisfactorily in SF.

To illustrate we are seeing an increasing number of PIP cases where the claimant has requested a supersession because there has been a change in their circumstances (deterioration / increased needs). Yet in every single case the SSWP has, in effect, then followed the process of a ‘planned intervention’ - new form and F2F then made a new decision (either refusing to change the award or in some cases reducing the existing).

In submission to tribunal the SSWP is simply ignoring the application for supersession as having been made under SSAs10 but refers to the whole process quoting the legislation for a ‘planned intervention’.

I think the important legal question is can the SSWP turn an application for supersession on a claimants initiative into an action on his own initiative under Reg 11? If so what is the practical purpose of a s10 application by the claimant if the SSWP can simply turn it into a Reg. 11 and superseded (or refuse to) the existing award, not because there has (or has not) been a relevant change of circumstances (DA Reg 23) but because the SSWP has received medical evidence from a HCP (DA Reg26).

It is as if in the SSWP’s mind the change of cirsc supersession provisions no longer exist in practice within PIP and everything becomes a ‘planned intervention’ and is determined under DA Reg 26 ‘receipt of HCP medical evience’ (no requirment to show a change of circs).

Further whilst the same issue could arise in theory under ESA it doesn’t in practice because awards of ESA are indefinite so supersession on receipt of a HCP opinion is not ‘interfering’ with a fixed term award before it was due to end. If a claimant requests a supersession under ESA (from WRAG to SG) in practice the SSWP often requires a new ESA50 & F2F but makes the new decision under SS&CS;(DA)Reg 6(2)(a)(i) rather than SS&CS;(DA)Reg 6(2)(r) so considers (even if he doesn’t understand that is what is being done within the legislation) if there is an actual change of circs.

Under DLA under the renewal process (the PIP equivelent of which is never used) it was rare, but not unknown, for an existing award to be changed at a date before the original expiry date).

So the way in which the SSWP operates planned and unplanned interventions has generated some interesting (and unintended?) complexity which IMHO the UT has yet to grapple with.

Agree with all that.

FWIW I feel the issue for PIP is the ATOS/DWP relationship - I have yet to see a decision where the DM deviates from the points awarded by ATOS - There exists documents seen where they write to each other querying the descriptor choices which are revised or not. If changed the later decision will reflect the revised points score - maybe this is a contractual arrangement? 

With ESA - I have seen the other provider agreeing the report is not of sufficient quality and advising the DM of the later opinion. The final decision is with the DM.

It does seem to me that the PIP DM is not really a DM.

Let me concede from the start that I haven’t read SF.  However, it seems to me that the situation in PIP is not wholly dissimilar to that in ESA.  In my view, it is plain that receipt of medical evidence by the SoS is a sufficient stand-alone ground to supersede a decision making an award.

The question for me is, what is the date that the superseding decision should take effect from?  If the only ground to supersede is receipt of medical evidence then the date of the new decision should take effect from the day after the expiration of the current award.

However, to supersede from an earlier date it is incumbent on the SoS to point to an additional ground (change of circumstances, mistake as to material fact, etc).  It is trite law that a new medical opinion is not, in itself, a change of circumstances but it might point to one.  If that is so then the SOS must identify it.

This is my initial, instinctive view.  But I stand to be corrected, particularly as at present, it is all a bit of a mess really.

I’d agree except that the WRA 2012 specifies PIP Awards are to be for Fixed Periods - this differentiates PIP from ESA.

So to be clear - when changing a decision it’s both the rate of each component and the dates of the award that are under consideration.

The decision making process should be a thought engaging process of ASSESSING the evidence and not simply FOLLOWING the evidence.

This is of interest to the DWP as much as the claimant as should arrive at quality based decisions rather than what are random results from random encounters.

AKA Donec obviam iterum