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PIP Negotiating / bargaining to avoid tribunal

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phewitt15
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I have had 3 cases now where this has happened, has anybody else come across this?
PIP appeal going through and no award in the meantime. Quite a compelling appeal and asked for enhanced daily living. My clients have been contacted directly and offered a standard daily living award as long as they abandon the appeal. They are given a few days to consider it and if they say no then the standard rate isn’t awarded and the case continues to tribunal.
The first 2 cases they had already had that offer before I got involved and took what happened with a pinch of salt, but my current client confirms the exact story.
For this client I really think she should be on enhanced but I have told her to accept the standard rate and then can do an MR for enhanced, when she then rang PIP they wanted her assurance that she wouldn’t continue before putting the standard into payment.
I am pretty gob-smacked by this process to say the least!
I think I will still ask her to accept the offer as can see no reason why couldn’t carry on with MR even if she had assured them verbally she wouldn’t do so - does anybody have any thoughts on this ?

     
ClairemHodgson
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if you’re sure she’ll get enhanced then why should she accept standard?

     
phewitt15
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appeal pack hasn’t even come through yet, and there is a carer involved too, if she accepts standard will have income and get the carers back in payment for her carer while doing MR then appeal to see about enhanced

     
phewitt15
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that is my question though - is there a reason why she shouldn’t accept standard in the meantime?

     
Welfare Rights Adviser
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there is no need for an mr, the appeal lapses and your client then has fresh appeal rights as in affect they have reconsidered their decision.
happened to a client of mine recently who was having financial problems and we arranged for me to accept the offer on her behalf and I carefully did not say that she would not appeal
I feel PIP are ignoring claimants rights and it was ok for my client as she had access to advice, but what about claimants without a rep who accept an offer that does not reflect their needs to avoid the stress of an appeal

     
phewitt15
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good point, can go straight to appeal as new decision is the MR, I agree that from what I have been told about the conversation most people without advice would assume they couldn’t take it further. worrying indeed

     
Phil R
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I had a client a few weeks ago that got a call offering SDL. I advised her to get the offer and reasons in writing but the DWP refused. Still going to appeal.

     
nevip
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This has been discussed before.

https://www.rightsnet.org.uk/forums/viewthread/11718/#54294

     
past caring
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The above is not correct.

Assuming the initial decision was no award, there has already been a mandatory reconsideration in order for the client to reach appeal stage. However, the DWP is able to revise its decision at any point before the appeal is heard. That is what is happening now with the ‘negotiation’.

But if the decision is revised - i.e. the client accepts standard rate - that lapses (ends) the appeal because it is a more favourable decision. The client cannot then go on immediately to appeal for the enhanced rate - or even request another MR.

But what they can do is immediately request a supersession of the standard rate award - and if this is refused, then go through the MR and appeal process.

It is a balancing act - the client is certain of the standard rate award - but will lose any entitlement that they may have had to enhanced rate between the date of claim and the date that the supersession is requested (i.e. any enhanced rate award eventually made by a tribunal will commence from the date the supersession is requested).

     
Welfare Rights Adviser
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I respectfully disagree.  Legally an MR does not exist, it is a revision and the dwp can make a revision at any time pending your appeal, which lapses if the revision is advantageous and you can then go straight onto lodging the appeal if you still disagree

     
past caring
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OK - good luck with that.

     
phewitt15
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Hi the supersession answer makes sense, however PIP don’t really need agreement to revise a decision and award standard rate, if that answer was correct then PIP could wiggle away from the std to enhanced difference in any case by awarding standard leading up to an appeal and that can’t be right. e.g. no pip award march, appeal asks for enhanced, pip awarding std in june without any negotiation surely that shouldn’t then mean that a person could never get the increase from march to june if an appeal was successful? If the original appeal was for enhanced rate couldn’t you argue that the appeal shouldn’t lapse as it isn’t satisfied?

     
past caring
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The June award of standard rate in your example is from the date of claim. An MR of that decision - and any subsequent appeal - will also be from the date of claim.

     
Welfare Rights Adviser
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past caring - 13 June 2018 11:47 AM

OK - good luck with that.

thanks the appeal has been accepted, have papers and am waiting for a date.
it was an revision of the original decision and the appeal is against the original decision and will be paid from then if successful

so will want luck at the hearing

     
HB Anorak
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I think there is only one decision in these cases - the original refusal, which might be a decision on a claim or a superseding decision on an existing award.  Let is call this decision 1 (D1).

If the claimant is unhappy with D1, s/he may make an application for revision - what DWP calls MR, but in law an application for revision.  The possible outcomes of that application are:
(i) D1 is revised to the claimant’s satisfaction - end of the matter.  Or
(ii) D1 is confirmed, or
(iii) D1is revised but not to the claimant’s satisfaction (i.e. either unfavourable or not favourable enough)

Outcome (ii) or (iii) means there is now a right of appeal against D1, which will take place in its own good time.  Meanwhile, DWP still has the option to revise D1 ahead of the appeal.  That is the stage we are at in the OP’s case: DWP has indicated that it is willing to revise D1, but not wholly to the claimant’s satisfaction.  Because the revision is slightly advantageous, this will cause the appeal against D1 to lapse, but the claimant immediately has the right to appeal once more against D1 as revised.  No further MR is necessary because DWP has already considered an application for revision of D1.  The right to appeal against D1 is refreshed, as it always has been ever since the 1998 Act, by the revision of D1 in the claimant’s favour while under appeal.  Otherwise, the DWP would be able to abuse the process by making a trivial revision and shutting down the claimant’s right to appeal.  They cannot do that: you must have a right to appeal if you don’t get everything you wanted through revision or further revision.  An extreme scenario would be DWP revising and further revising in 1p increments, with a new right of appeal every time … and always the decision under appeal would be D1 as (further) revised.

As I see it, there is no need to ask for a superseding decision - there is no D2.  We are still on D1 here.  There is nothing to lose by applying for a superseding decision D2, but unless the claimant believes that his/her circumstances have changed since D1 I think asking for D2 is over-complicating things - the appeal against D1 remains.

     
John Birks
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There is nothing to stop a claimant asking for MR where they make a pragmatic decision to accept the ‘offer.’

There are likely to be very good reasons to accept the offer - especially considering the lengthy delays in hearing appeals.

The DWP may also refuse the MR request - but I’m not sure why or on what basis. But there’s stuff to rely on to get the adviser through the process in that situation.

Yes the appeal lapses as there a more advantageous decision. Fresh rights of challenge follow. The new decision isn’t on the Sh3 - non-appealable list or any other that I can see, 

14: “....A decision maker (DM) cannot be estopped by word or action from applying the legislative conditions; a claimant must be afforded a full and fair hearing by an independent and impartial tribunal in determining the issues in contention. “

CSDLA/606/03