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PIP Reassessment

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tom sangster
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I’m relatively new to PIP so would welcome some advice….

I have a customer who was awarded PIP Daily Living in October 2016.  She then informed the DWP that her condition had got worse.  She was called in for a reassessment, I think without completing a PIP2 and awarded 0 points.

I spoke to the DWP, who informed me that they can request a reassessment at any time and had done so on the basis that the customer informed them of a change in circumstances.

It may be that the only option is to appeal in the normal way.  My question is, is this something that the DWP can do?  And does the calling in for a reassessment provide any grounds for appeal in it’s own right?

thanks

Tom

Dan_Manville
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It’s pretty common practice Tom. There is provision for them to review on a whim; they don’t need to make out grounds.

If the original award was made by a Tribunal it gets a bit more complex.

John Birks
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Dan Manville - 20 October 2017 01:05 PM

It’s pretty common practice Tom. There is provision for them to review on a whim; they don’t need to make out grounds.

If the original award was made by a Tribunal it gets a bit more complex.

I don’t entirely agree -

They can review on a whim. In this case the claimant asked them to (unwittingly or otherwise.)

IMO to revoke or modify the previous award does require either a **Relevant** Change of Circumstances or a mistake as to fact (for instance) on the previous award - if a descriptor or more was awarded wrongly, for instance.

 

Elliot Kent
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The various discussions about whether receipt of medical evidence is a sufficient ground to change an award aren’t really relevant in this case as the claimant has unambiguously declared that her circumstances have changed - so what the DWP have done in this case is permissible on any view.

What I would say is this -

Your client has made an application for her award to be superseded because her conditions have changed. If the Tribunal accept this and decide to give her a higher award than she had previously, she should expect to have her award increased from (at the latest) the date in 2016 when she declared the change. You need to make sure that the Tribunal are aware of this as the DWP might not tell them.

John Birks
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Elliot Kent - 20 October 2017 01:49 PM

... aren’t really relevant in this case as the claimant has unambiguously declared that her circumstances have changed - so what the DWP have done in this case is permissible on any view.

Again. Not to appear contrary for the sake of.

It depends on the facts. In particular it depends on what the claimant said and intended. I wouldn’t want to concede that there was a relevant change without being in possession of the facts or understanding the claimants intention.

The previous award may be wrong due to a points happy assessor and a ‘rubber stamping’ DM - which may be the case with this post https://www.rightsnet.org.uk/forums/viewthread/11942/ (or not.)

The decision made may or may not be permissible. I doubt the DWP will change the report unless there are obvious factual errors or omissions that may be addressed by way of complaint.

I noted the OP says no PIP form completed. Typically a form is sent IME. If it is a case of the absence of a form then there is only the PA4 completed by the assessor.

I’ve not yet seen an assessor make any investigation (or reasoning) as to the previous award, what the change is or why it is relevant.

That is what I would do before going forward to form an opinion or argument.

 

 

Ruth Knox
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Yes, it sounds as if there was a change of circumstances - client’s situation deteriorated.  But the decision maker has a duty to look at all relevant evidence and this definitely includes the medical report to the decision s/he is superseding. There’s now established case law on this.

HB Anorak
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Is it arguable in these cases that the principle established by the old Neil Wood v Sec of State for W&P still applies?  According to that case, obviously a report of a change of circumstance by the claimant provides DWP with grounds to make a superseding decision, but they should not abuse that process in order to revisit something completely unrelated to the application which would otherwise have been untouchable and final.

For example, claimant has enhanced rate DL but scored zero on mobility.  Decision not appealed, is now final.  To the outside observer, maybe the claimant got slightly lucky on the enhanced rate: certainly it was a decision that was open to the DM on the facts, but an unexpectedly generous one.  At a later stage, claimant considers that condition has deteriorated in a way that is relevant to mobility descriptors and applies for a superseding decision.  Whether or not DWP agrees with this, what they should not do is use the application as a way to revisit the DL rate if there was no error at the outset and there has been no change of circumstance that would otherwise have provided grounds to revise/supersede.  It is legitimate for them to say “thanks for notifying us about “x”, but we couldn’t help noticing there has been some improvement in “y” since we last saw you”; but they cannot say “thanks for notifying us about “x”. While there has been no other change in your condition we really wish we had never made the decision we did in the first place, so guess what - we are changing it on the ground that you have applied for supersession”.

We apply this principle a lot in HB: if someone has a borderline dodgy tenancy, they sometimes get the benefit of the doubt.  The decision is made on all the facts and a generous view is taken.  If the claimant later reports, say, a wage increase, it would be an abuse of the Council’s power to make a superseding decision if that decision were to the effect that the claimant has a dodgy tenancy and no longer qualifies for HB.

John Birks
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Well put and wholly agree.

Elliot Kent
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I don’t think that argument survives contact with reg 11 which permits a ground up re-opening of the assessment determination at any time and for any reason.

Additionally (although obviously John disagrees), the application for supersession isn’t opening the door on an otherwise finalised issue because the DWP has an alternative ground of supersession outside of the change of circs process under reg 26 so could supersede even if the claimant stayed silent.

HB Anorak
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OK, yes I can see that.  I agree it appears that Regs 23 and 26 are separate, alternative grounds for supersession (along with various other grounds).  So PIP Reg 11 provides for a review whenever the Secretary of State takes a notion to carry one out, and D&A Regs 23 and 26 provide the associated grounds for supersession.  Reg 23 provides grounds if there has been a change while Reg 26 provides grounds for supersession if the medical evidence warrants it, irrespective of whether anything has changed.  In effect, principal Reg 11 and D&A Reg 26 have rendered Wood obsolete as far as PIP is concerned.  Is that about it?

John Birks
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Read as is, it appears to be as you’ve summarised.

However Nicholas Wikeley - Judge of the Upper Tribunal

para 16 on

Although I have not had full argument on the point, it seems to me in principle that Mr Spencer (DWP) is correct in arguing that (with emphasis as in the original):

“regulation 26 should be understood as allowing supersession to be carried out where a relevant change of circumstances cannot be identified. Whether there is an identifiable change of circumstances should thus be considered first, however briefly. Regulation 26 should be considered next if and only if no change of circumstances (or other alternative ground of supersession) has been identified.

In effect, regulation 26 is a provision of last resort for cases where no other ground of supersession is made out.”

Mr Bernard (CAB/CA)argued that where there was such a gross disparity between the two decision makers’ PIP decisions then it was incumbent on the tribunal to explain why the outcome was different on the second occasion. In particular, he suggested, the tribunal needed to explain whether the initial award had been too generous and/or whether there had been a significant change in circumstances affecting the Appellant’s functional abilities. In this respect Mr Bernard relied upon Social Security Commissioner Howell QC’s decision in R(M) 1/96.

Mr Spencer disagreed. His submission was that if a tribunal finds that a previous award was properly superseded under regulation 26, then it was not necessary for the tribunal to explain why its decision was different from the original superseded decision. The effect of regulation 26, he argues, is that where it applies then a claimant’s needs fall to be determined afresh on all the evidence available at that stage (see by analogy JB v Secretary of State for Work and Pensions [2010] UKUT 246 (AAC) at paragraph 16 per Judge Lane). It is sufficient that the claimant can see why the issue of entitlement was re-opened and how, along with the conclusions drawn and the reasons for those findings.

I prefer Mr Bernard’s submissions on this point.

In my view an unduly narrow focus on the jurisdictional niceties of reliance upon regulation 26 loses sight of the fundamental and much wider principle of justice, namely that a party (and, in particular, a losing party) is entitled to adequate reasons for the tribunal’s decision.

There is ample authority for the proposition that the system should avoid a situation in which decision makers give “contrary decisions which the general public, and particularly those afflicted by disabling conditions and those associated with them and who care for them, do not understand, and is apt to produce a feeling of injustice” (Commissioner’s decision R(A) 2/83 at paragraph 5). Thus consistency in decision making is an obvious public law good (see R (Viggers) v Pension Appeal Tribunal [2009] EWCA Civ 1321; [2010] AACR 19 at paragraph 22 per Ward LJ).

Until it is conclusively settled for the ‘other’ way - the wrong way I continue to argue that the SSWP just cannot supersede an award without reason (even on a review of their own initiative) on the basis solely of a new opinion on the same facts. That way is licence to chaos, uncertainty and irrational decisions made on a whim.

The correct way is calm, reasoned analysis and rational decision making.

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Elliot Kent
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John - the analysis you have set out is all in respect of the adequacy of an FtT’s reasoning, not in respect of the available grounds for supersession. They are separate points (as SF makes clear by expressly delineating them). I agree with everything said in-so-far as it relates to the standard of reasoning - a DM or FtT should not just abandon an old report but should reason out why it has done so - but that is an entirely separate matter from the availability of a particular ground of supersession. A legal power does not disappear simply because sometimes it is used improperly.

I don’t intend to say any more on this as I think we are just going round in circles.

John Birks
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I hope confirmation bias hasn’t kicked in. I was rather hoping I was still learning.

What is the authority to hold the DWP to a lower standard of law than a FTT?

In the end I think the matter remains to be resolved at some point by the UT.

 

davidsmithp1000
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I am having difficulty following this, can someone please link to the regs regarding, reg 11, 23 and 26 - I’d like to understand this better

Daphne
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SamW
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Help me out here…

My understanding was that the caselaw was that the DWP cannot go on ‘fishing trips’ by triggering reassessments during an already awarded claim period without any grounds for thinking things had changed. Was that a different UT case? As the one above seems slightly different in that it concerns final decision making.

Have had a couple of clients getting ‘inappropriate to fix a term’ decisions at Tribunal and want to advise correctly on how ‘indefinite’ these awards are practically.

Thanks :)