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Ministers forced to backtrack over controversial Personal Independence

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FIC
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Changes To Controversial PIP Assessments Set To Increase Benefits For 10,000 Disabled People

From Huffington Post

https://goo.gl/TsJiri

     
WillH
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The ministerial statement talks about existing claimants:

http://www.parliament.uk/business/publications/written-questions-answers-statements/written-statement/Commons/2017-11-02/HCWS218/

Even assuming the trawl identifies everyone to whom the new guidance would give a higher award, what about all those people who didn’t get PIP at all? As far as I can tell, nothing is being done to identify them.

Some of them have an appeal in the pipeline. I think where relevant it may be worth ringing DWP to try to get the decision revised before appeal.

As for all those who didn’t challenge all the zero point decisions, I hope they see this news story…because it doesn’t sound as if the DWP are contacting those people.

     
Ken Butler
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We’ve written to DWP Minister Penny Mordant about the amended PIP guidance
asking –
• for copies of the updated guidance paragraphs;
• whether the claims of all those who have been refused PIP or have had PIP ceased to be paid will be reviewed;
• the PIP case trawl procedure to be adopted and its likely timescale;
• what evidence the Department will consider;
• whether the DWP will be writing to claimants to ask them to submit evidence that they cannot undertake an activity “safely”;
• how far back any increase to a claimant’s PIP award will be backdated; and
• where it is decided that a PIP award will remain the same, will decision notices be issued inviting a claimant to submit an appeal.

See the following that contains a link to a full copy of our letter –
https://www.disabilityrightsuk.org/news/2017/november/dr-uk-writes-dwp-minister-raise-concerns-about-new-pip-descriptor-activity

     
Ed Pybus
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It’ll be intetest to see what response they give. It’s a pity they don’t track changes to the asessment guide - it’s hard to know what has been changed. Although I note it still says “the risk that harm may occur is insufficient. It must be likely to occur” hmmmm

     
Billy Durrant
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Ed, if it is of any help I have the following versions of the PIP assessment guides saved:

22/01/13, 27/06/13, 27/05/14, 31/10/14, 01/05/16, 01/9/16, and 02/11/17.

I think that’s all of them, although may have missed some. It would be a big job to collate all the changes but possible I suppose.

I think they are too big to upload here but if you message me your email address I can send them as attachments if you want?

     
Mr Finch
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Ed Pybus - 09 November 2017 10:14 AM

Although I note it still says “the risk that harm may occur is insufficient. It must be likely to occur” hmmmm

Agreed - this statement in the guide has been the problem all along. The word ‘may’ implies a fairly strong possibility, stronger than ‘might’, so to say that’s insufficient does not represent the current state of the law.

     
stuart
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Further guidance from the DWP on its approach to defining ‘safely’, and how and when awards will be affected.

ADM memo 29/17: PIP, the meaning of ‘safely’, part 1

ADM memo 30/17: PIP, the meaning of ‘safely’, part 2, decision making

 

     
Mr Finch
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The claimant has epilepsy with tonic-clonic seizures. There are no warning symptoms or triggers and the incidents can happen at any time of the day.
When the clamant has a seizure their body will become stiff and then their arms and legs will start twitching. They may drop any items they are holding and will fall from a standing position.

... the decision maker reasonably concludes that the claimant can minimise the risk associated with cooking by using aids and appliances and a microwave and decides on descriptor 1c.

Nope.

     
Elliot Kent
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Appeals against decisions made after 9.3.17
14 Where the claimant has appealed against a decision that was made after 9.3.17, the FtT must take RJ into account when deciding it but cannot apply it to periods before 9.3.17. (See the Appendix to this Memo for an explanation of the supporting legislation and case law.) Where RJ applies and there is an appeal to the FtT against a decision made after 9.3.17 that covers a period before 9.3.17, the Secretary of State’s response to the FtT should ask them to take RJ into account but to apply to it from 9.3.17 only.

Blimey.

So the DWP are saying that an FtT considering an appeal against a post 9.3.17 decision on a pre-9.3.17 claim, the FtT must direct itself as though RJ does not represent the law for the pre - 9.3.17 period.

So what legal directions is the FtT supposed to give itself for the pre-9.3.17 period then?

 

     
HB Anorak
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The FtT is stepping into the DM’s shoes, and the DM was forced to comply with s27(3) of the Social Security Act 1998 (the “anti-test case rule”).  So the Tribunal must direct itself that it is bound by convention (and by case law eg CH/532/2006) only to make a decision that the original DM could have made.  That does indeed mean acting as if the “relevant determination” had not happened in respect of any period predating that relevant determination.  The Tribunal therefore has to apply the law in the way that it was generally understood to apply before the UT or a higher court put us all straight.  But I think Elliot’s point is: how does the Tribunal know what that was?  What if the issue had never come up before and there was no generally accepted clear-cut right or wrong approach?

It’s easy enough to apply the anti-test case rule in a simple clear-cut case: for example, last November the Supreme Court found in the Carmichael case that the failure of the HB Regs to make provision for extra bedrooms in certain cases unjustifiably violated the claimant’s human rights.  Remedy was a bit vague still at that point, but we now know following the linked UT appeal that Tribunals can provide a remedy by way of increased benefit in these circumstances.  So if something like Carmichael happened again now the application of the s27(3) principle would be straightforward: any newly discovered look-alike cases would only get the extra room from the date of the decision.

But with RJ, what was the generally accepted correct way to interpret “safely”?  For all we know many DMs might already have been doing it that way.  One person’s “possible” might not be much different from another person’s “likely”.  It doesn’t follow that the approach taken by the original DM in RJ was the generally accepted right way of doing things.  Could have been a rogue DM.

     
Roger
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HB Anorak - 14 November 2017 09:12 AM

The FtT is stepping into the DM’s shoes, and the DM was forced to comply with s27(3) of the Social Security Act 1998 (the “anti-test case rule”).

Sweet and Maxwell seems to agree, but I’m confused about what happens if the claimant in the lookalike case then appeals to the Upper Tribunal as well? Surely the Upper Tribunal has no lesser reason for finding that the provision had been applied wrongly than it did in RJ. Not because of failure to follow precedent, but simply because the reasoning was wrong.

     
Ken Butler
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The CPAG Handbook cites R(FC) 3/98 and R(1) 03 as the relevant decisions in relation as to whether a test case is the first authoritative decision on an issue.

Can’t see these on rightsnet.

Does anyone have a copy of either of these?

     
stuart
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Ken Butler - 14 November 2017 12:06 PM

The CPAG Handbook cites R(FC) 3/98 and R(1) 03 as the relevant decisions in relation as to whether a test case is the first authoritative decision on an issue.

Can’t see these on rightsnet.

Does anyone have a copy of either of these?

We Have R(FC)3/98 in its starred form CFC/2398/1995 on our Commissioners decisions archive: Family Credit. Other case looks like a Northern Ireland child support case - not sure we have that but will have a search.

      [ Edited: 14 Nov 2017 at 12:31 pm by stuart ]
Daphne
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Catblack
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Mr Finch - 13 November 2017 03:42 PM

The claimant has epilepsy with tonic-clonic seizures. There are no warning symptoms or triggers and the incidents can happen at any time of the day.
When the clamant has a seizure their body will become stiff and then their arms and legs will start twitching. They may drop any items they are holding and will fall from a standing position.

... the decision maker reasonably concludes that the claimant can minimise the risk associated with cooking by using aids and appliances and a microwave and decides on descriptor 1c.

Nope.

I have had an appeal pack through with that very wording! The DM feels that my client should use special choppers and slicers and allow food in the microwave to cool down to minimise the risk of burning herself and has therefore awarded 2 points.

     
AlexJ
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“The claimant has epilepsy with tonic-clonic seizures. There are no warning symptoms or triggers and the incidents can happen at any time of the day.
When the clamant has a seizure their body will become stiff and then their arms and legs will start twitching. They may drop any items they are holding and will fall from a standing position.
... the decision maker reasonably concludes that the claimant can minimise the risk associated with cooking by using aids and appliances and a microwave and decides on descriptor 1c.”

And so they will be perfectly safe if, for example, they are taking something from the microwave and fall to the ground, smashing their head on the worktop on the way down.

In my view the DWP’s guidance on this issue completely overlooks the decision in CPIP/1671/2015 that a risk need not be related to a specific activity (for example, the risks posed by sharp knives or heat when cooking, or by water when bathing) in order for a claimant to be considered unable to safely perform that activity:

“A risk that gives rise to a need for supervision need not be a risk that is unique to a particular activity or to the activities in Schedule 1 generally. It is sufficient if it is a general risk, even one that applies when the claimant is doing nothing, provided that the requirements of a particular descriptor are satisfied. (paragraph 18)”

And further on in the guidance, we all know that falling is perfectly safe as long as one doesn’t do it in the middle of the road:

“The claimant falls during their seizures. This may create a risk of significant harm if the claimant crosses the road in an unsafe way…[however] the claimant can take precautions by using safe crossings”

Or indeed, if one falls in the middle of a pedestrian crossing whilst unaccompanied, that would also be perfectly safe.

I’m not entirely convinced by this guidance.

      [ Edited: 14 Nov 2017 at 05:46 pm by AlexJ ]