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1.6 million PIP claims to be reviewed
Trying to say “thank you Daphne” but the site doesn’t seem to like that
You must have thanked me before - you can’t submit a message identical to one you submitted previously ;)
But thank you for thanking me :)
... as time rolls on we’ll need to come up with ever more creative and unique responses to each other 😂
You I thank for this explaination
Benefits and Work has obtained an opinion from Tom Royston of Garden Court North Chambers, who successfully acted for the appellants in the original MH case.
Tom concludes that:
“In my opinion there is an arguable case that SSWP’s review is unlawful . . . and there strikes me as being a significant wider public interest in any such case, both because the legality of large scale public projects is always important and because there are strong reasons in this case for believing that many affected individuals would not be able to take effective remedial action by themselves”
We’re currently hoping to hear from claimants who have had a LEAP refusal letter in the last three months. There’s more details here:
https://www.benefitsandwork.co.uk/news/4403-23-june-2021-update
Separately, we’d like to learn more about how the DWP are dealing with challenges to LEAP decisions. Currently, our admittedly small sample of challenges does not include any that made it to appeal.
In every case, the DWP either changed their decision at MR or did so after an appeal was lodged, but before a bundle was prepared.
We’d be really interested to hear of other agencies experiences of appeals, either in this thread or confidentially to .(JavaScript must be enabled to view this email address)
Many thanks,
Steve Donnison
I have had two appeal cases relating to the review. Both related to MH rather than RJ and both were cases where the original decision pre-dated the MH case.
In both cases the DWP did not object to the validity of the appeal and issued a response which was essentially the same as their standard response to de novo appeals. The only real clue that the appeal related to the review exercise was the inclusion of the following stock submission (verbatim, all of the numerous errors are in the original):
[claimant’s] PIP award was looked at again taking RJ, GMcL and CS v SSWP (2017) UKUT 0105 (AAC) and MH v SSWP (2016) UKUT 0531 (AAC) into consideration; RJ, GMcL and CS v SSWP (2017) UKUT 0105 (AAC) relates to whether an activity can be carried out ‘safely’ and the linked question of the need for supervision. This change applies from 9 March 2017. MH v SSWP (2016) UKUT 0531 (AAC) relates to the meaning of the descriptors within mobility activity 1, planning and following journeys. This change applies from 28 November 2016. The rate of PIP was not affected.
The decision dated [date] and subsequent reconsideration dated [date] both decided not to supersede the original decision in light of the change in the judgements:
RJ, GMcL and CS v Secretary of State for Work and Pensions v RJ (PIP): (2017) UKUT 105 (AAC) effective from 9.3.17
and
MH v SSWP (2016) UKUT 531 (AAC). Effective from 28.11.16When considering this appeal the tribunal should only consider the effect of these judgements from their respective dates on the decision made in line with Section 27, Social Security Act 1998.
If the Tribunal decide an award of PIP is appropriate, their attention is drawn to the fact the effective date of any award is dependent on the regulation used to supersede the awarding decision, and it’s associated considerations. The effective date of any award the Tribunal decide is appropriate, may therefore be different to the effective date of the decision under appeal, as set out at sections 1 and 3 of this appeal response. The Tribunal are respectfully asked to explain how the effective date of the award was arrived at in their decision notice.
For clarity, because the claimant appears to be raising matters decided in the original decision made on the [date], it may be helpful to remind the Tribunal of the restrictions in Regulation 5 and 6 of The Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013 which confirms any application for revision must be made within an absolute time limit of 13 months. The Tribunal will also be aware of Rule 22 and 8 The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 which confirms an appeal must be brought within an absolute time limit of 13 months following a Mandatory Reconsideration which is confirmed in Paragraph 19 of the Upper Tribunal decision of PH and SM v Secretary of State for Work and Pensions (DLA)(JSA): [2018] UKUT 404 (AAC)
The original decision was made on [date] and was not disputed at the time, there is no indication of official error. Any appeal against the original decision as decided is therefore outside of the basic 13 month period and is not an issue that can be considered by the Decision Maker or the Tribunal.
I have read this a number of times but still don’t really understand what any of it is supposed to mean.
In both cases I have dealt with, the Tribunal has invited submissions directed towards ascertaining what the DWP’s position actually was i.e. whether this was a refusal to revise or to supersede, whether they accepted that there was a right of appeal against the decision and if so on what basis, the scope of any such appeal and what their substantive position was in relation to official error/error of law.
In the first case the DWP did not respond. In the second case they gave the following response:
The decision was considered under the tribunal judgements of RJ, GMcL and CS v Secretary of State for Work and Pensions v RJ (PIP): (2017) UKUT 105 (AAC) effective from 9.3.17 And MH v SSWP (2016) UKUT 0531 (AAC). Effective from 28.11.16. The appellant was contacted via letter dated [date] (included in the original bundle) under the regulation of 9(a) of the D&A regs 2013 and the decision was made not to revise.
The original date of claim is the [date] however the effective date is the [date] as DLA was paid up to and including the [date]. The [date] would be the effective date to be considered as this is after both dates of the above mentioned judgements.
All that this really does is to contradict the earlier submission which had asserted that the tribunal was dealing with a refusal to supersede rather than a refusal to revise.
I think there is a pressing need for the DWP to sit down and think about how they are responding to these appeals because the current approach is wholly inadequate.
Can anyone help me understand what is the position of claimants who had an award made by an FTT during the period between March 2017 and December 2017, and where overwhelming psych distress and the mobility descriptor 11 is an issue.
Will their decision be included in the LEAP review?
Hi all
I’ve been looking at the LEAP review to try to get a better understanding of what’s happening and found this note on the report published January 2020 - I wonder if that is why so many have been turned down?
‘Methodology update
Since the last release of information, 2 changes have been made that affect the figures provided.
The second change was to the process used in the administrative exercise. The change also occurred with effect from 4 November 2019.
From that point, the department has been focusing reviews on those cases most likely to benefit.
All other cases in scope of this exercise will be contacted by the department in writing, giving them the opportunity to request a review.’
Interestingly the figures used in the Jan 2021 update are virtually the same https://www.gov.uk/government/publications/pip-administrative-exercise-progress-on-cases-cleared-at-17-january-2021/pip-administrative-exercise-progress-on-cases-cleared-at-17-january-2021
Can anyone help me understand what is the position of claimants who had an award made by an FTT during the period between March 2017 and December 2017, and where overwhelming psych distress and the mobility descriptor 11 is an issue.
Will their decision be included in the LEAP review?
Yes I think so Sarah if the FtT was using the legislation that was later quashed - covered by this ADM I think - https://www.rightsnet.org.uk/welfare-rights/news/item/effect-of-upper-tribunal-decisions-in-mh-and-rj-on-interpreting-pip-mobilit
Tho see Tina’s post which highlights that they may only be ‘invited’ to have a review rather than one happening automatically - also rightsnet story here about change in methodology - https://www.rightsnet.org.uk/welfare-rights/news/item/around-28-million-has-been-paid-out-as-a-result-of-pip-review-exercise-following-upper-tribunal-decisions-relating-to-psychological-distress-and-carrying-out-activities-safely
Thanks Daphne
At para 13 of the ADM it states “Decisions made in the period on or after 28.11.16 and 9.3.17 to the date of this guidance being issued and all PIP awards in payment on 28.11.16 and 9.3.17 will be reviewed in an independent exercise (called a LEAP exercise)”
It says ‘decisions made’ and doesn’t exclude those made by a tribunal.
And at para 15 “15 Some claimants may contact the Department asking for their case to be looked at again solely on the basis of the MH and/or RJ. The DM should determine whether the claimant is entitled to an award or increase in the light of MH and RJ ....Where the decision was made on or after 9.3.17, the decision should be revised on the grounds of official error taking into account MH & RJ accordingly.
1 UC, PIP, JSA & ESA (D&A) Regs, regs. 24 & 35(5); 2 UC,PIP,JSA & ESA (D&A) Regs, reg 9(a)
But can an FTT decision be revised on error of law if it was made in Sept 2017 and no challenge made to the FTT?
And does it make any difference that the FTT decision was for a fixed period 2017 to 2019, and since 2019 PIP renewal the client now has a new award?
But can an FTT decision be revised on error of law if it was made in Sept 2017 and no challenge made to the FTT?
DWP can’t revise an FtT decision, and can’t supersede one for error of law - so I don’t think there is anything they can directly do about it. It also isn’t really clear how DWP could try to assess an FtT decision to establish whether the MH or RJ decisions ought to have had a bearing on it, because they will have no information about the facts found by the FtT unless there happens to be an SOR and therefore no basis to conclude whether the decisions would have had a material impact on the outcome..
The only thing which could be done about an FtT decision which was shown to be in error is to make a very late application for the FtT decision to be set aside or reviewed or for permission to appeal against it to be granted - all of which have their own obstacles.
An interesting point is that if both parties express the view to the FtT that its decision involves an error of law, the FtT is required to set its decision aside and re-determine the case via s13(3) SSA. Therefore, in theory at least, if the DWP and the claimant were both inviting the FtT to set its 2017 decision aside due to this issue, the FtT would be required to do so, notwithstanding the amount of time which has passed or anything else.
And does it make any difference that the FTT decision was for a fixed period 2017 to 2019, and since 2019 PIP renewal the client now has a new award?
The decision on the renewal could still be revised and superseded in the ordinary way.
Just to add that the DWP agree with Elliot on this. They ruled out including tribunal decisions in the LEAP review in an FAQ document provided to parliament in 2020:
Will this affect anyone who has appealed their PIP decision with the courts and tribunals service?
The department is not able to change awards decided by a tribunal. PIP decisions that were made by a tribunal will not be reviewed in the administrative exercise. Claimants who think they are affected can contact DWP to check their current entitlement is correct.
https://depositedpapers.parliament.uk/depositedpaper/2282003/files
p.s. thank you for your earlier reply Elliot re LEAP appeal cases. We have now heard about a handful of such appeals, very few of which have made it to a hearing. We’ve yet to hear of one where the claimant was unsuccessful.
p.s. thank you for your earlier reply Elliot re LEAP appeal cases. We have now heard about a handful of such appeals, very few of which have made it to a hearing. We’ve yet to hear of one where the claimant was unsuccessful.
Oh well I can break that streak as my second appeal was unsuccessful. The hearing lasted for 2 hours, at least half of which was dealing with the issues relating to what decision was actually under appeal, where the right of appeal arose etc. in view of the confusion created by the DWP’s submissions (although sending a PO who had the wrong papers and had not dealt with any LEAP appeals before didn’t necessarily improve that position). I believe after that the client lost on the facts but an SOR is awaited.
Just to add that the DWP agree with Elliot on this. They ruled out including tribunal decisions in the LEAP review in an FAQ document provided to parliament in 2020:
Will this affect anyone who has appealed their PIP decision with the courts and tribunals service?
The department is not able to change awards decided by a tribunal. PIP decisions that were made by a tribunal will not be reviewed in the administrative exercise. Claimants who think they are affected can contact DWP to check their current entitlement is correct.
https://depositedpapers.parliament.uk/depositedpaper/2282003/files
Thank you Steve, and Elliott. That’s what I was thinking but I didn’t know if it had been covered off anywhere, and so it’s really useful to see this FAQ document.
As you say, the tribunal will have made findings based on evidence heard, and without an SOR, there is no way of knowing now whether the restrictions imposed by the now-quashed regs were the only reason the client didn’t satisfy the test for 11d or f - he might just not have needed to be accompanied along the route, and only needed the prompting.
Tho see Tina’s post which highlights that they may only be ‘invited’ to have a review rather than one happening automatically - also rightsnet story here about change in methodology - https://www.rightsnet.org.uk/welfare-rights/news/item/around-28-million-has-been-paid-out-as-a-result-of-pip-review-exercise-following-upper-tribunal-decisions-relating-to-psychological-distress-and-carrying-out-activities-safely[/quote]
Thanks Daphne I missed that article on Rightnet last year - probably because there was so much going on with UC - it is shocking to see that so many people could be missing out on their benefits because a decision maker is making a pre-emptive decision about whether or not the case should be reviewed - hope Benefits and Work are successful in their challenge