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Forum Home  →  Discussion  →  Disability benefits  →  Thread

PIP Negotiating / bargaining to avoid tribunal

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Elliot Kent
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past caring - 13 June 2018 11:34 AM

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.

Sorry but I don’t think this is right. The DWP can revise a decision on receipt of an appeal. That lapses the appeal. The claimant then has a fresh right of appeal against the revised decision. See CPAG at page 1338 and ADM at A5164.

(Of course, it will need to be a new appeal. The first appeal will end - so the claimant cannot just say “I want to accept the offer and have my appeal continue as well” - they would need to file a new SSCS1)

Or are you positing that if a decision is made that I have been overpaid £1000 and, on appeal, the DWP accept that I was only overpaid £999, I have no right of appeal?

[ Edited: 13 Jun 2018 at 12:12 pm by Elliot Kent ]
nevip
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In my view an appeal lapsed in the client’s favour carries full appeal rights because this decision is a s9 decision (or strictly speaking a s8 decision as revised by s9) against which there is a right of appeal under s12.  There is no requirement for a fresh MR as the MR requirement under reg’ 3ZA of the regs is only a requirement before an appeal can be brought where “the Secretary of State has considered on application whether to revise the decision under s9 of the Act”. 

Therefore, as the SoS cannot make an application to himself, (this interpretation is re-enforced by the separate provisions of reg’ 3(1)(a) and 3(1)(b), then reg3ZA does not then apply.

However, that said, it might be in a claimant’s best interest to go down the supersession route where his/her condition has got worse since the original decision, depending on the facts of the case.

[ Edited: 13 Jun 2018 at 03:11 pm by nevip ]
past caring
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Humble pie. Don’t know what went on yesterday - brain fart/senior moment.

On another note, would be interesting to see what happens in practice where the claimant goes down this route. The DWP would,  I imagine, be furious but more or less impotent…....

Dan_Manville
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past caring - 14 June 2018 08:49 AM

On another note, would be interesting to see what happens in practice where the claimant goes down this route. The DWP would,  I imagine, be furious but more or less impotent…....

They barely mention the offer in the response when I go down this route.

I see this a lot; I warm my clients up when I think it might happen and I’m often right. I’m more likely to get a decision changed once the sscs1 is submitted than on MR.

I’m lucky to be in an enironment rich with medical evidence; if an assessment doesn’t explicitly say “they need prompting with x,y,z” then the MR will ignore it but the appeal writers are a bit more sensible (and not working to -ahem- ‘expectations’) and are likely to accept that such prompting needs are consistent with the presented diagnosis.

If it’s not everything we were asking for I simply put the new appeal in and the offer is barely mentioned; it’s just a revision along the path to appeal.

What irks me is that they push to persuade me (yes, me, not the client!) that the offer is a complete end to the appeal; even when I say “oh come on you know that’s not the case” they push back.

Peter Turville
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Although in my experience if the ‘offer’ is refused appeal writers make a big deal out of it in submissions. Have refused ‘offers’ in cases where the issue is not just the level but also the length of the award (DWP will ‘conceed’ the former but not the latter) for example claimants who are prelingually deaf and DWP will not conceed that a fixed period award of a few years only is not appropriate.

Advice4life
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So does this mean DWP will then report this offer to the Tribunal panel as part of their submission ? Or is this just an underhanded way to save money on an award and the cost of a Tribunal ?

nevip
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To “report the offer” to the tribunal in the explicit way as put to the claimant would be to invite censure.  It would be more common, which I have seen several times, to include it in the DWP’s submission in the form of a concession.  For example, one case I had concerned a young hearing impaired student who had been provided with extra help and assistive technology in the classroom.  She had been awarded no points at all.  The submission conceded that 8 points would be appropriate for communication support.  As that was all we were going for the tribunal allowed the appeal straight away.  The rest of the very short hearing involved a discussion about how long the award should be.

Elliot Kent
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I think I am continuing to go against the grain on this in that I think the DWP’s new policy is reasonable.

The fact is that lapsing an appeal is a completely bizarre concept to most people. If you are not in receipt of advice, you file an appeal and receive a letter through the post several weeks later saying that the decision is changed and you have an award of benefit now (perhaps not as much as you hoped - but better than before). A couple of days later, you get a letter from HMCTS saying that your appeal has come to an end. A “man on the street” would be forgiven for thinking that was the end of it.

Even if the unhappy claimant realises they have a further right of appeal, lapsing puts them to the trouble of getting and filling out a new appeal form and restarting their appeal from day one. There’s another wait of at least four weeks for the new response to be put together and you are at the back of the queue for hearing dates. If you want advice, its another two week wait for an appointment with your adviser. If I’ve been awarded SR/- and I was hoping for SR/SR, I might think this isn’t worth the trouble and just sit on my thumbs instead.

It seems rational for me, if the appeals officer thinks that a decision is wrong, to contact the claimant and establish whether they would be happy with the proposed revision. If they would be happy - then you can lapse as before and a pointless appeal is avoided. If not, then you can avoid putting everyone to the trouble of re-filing by making appropriate concessions in the submission.

The proposition that the DWP might somehow be using this as a way to “settle” or “pay off” claimants at levels below what they know they’re entitled to doesn’t strike me as plausible. I think that it would require a level of self-awareness and competence which is difficult to ascribe to the DWP as an organisation. They would have to sit down and (accurately) establish what the likely award from a Tribunal is (accounting for the “extra evidence” which explains all Tribunal decisions ever and which they haven’t seen) and then work out what the lowest-level that the claimant could be “bought off” for would be. I think the more likely explanation is that “offers” are lower than would be argued for at Tribunal because the DMs genuinely (although wrongly) undervalue claims as a result of the organisational guidance, training and attitudes.

I do think it speaks volumes about the historically high level of distrust which exists at the moment that this policy - which I genuinely think is intended to make everyone’s lives easier - is being seen as some sort of dishonest or underhanded tactical ploy by claimants and advisers.

That said - I do accept that there is work to be done on ensuring that the law is accurately explained to claimants (i.e. that they can still appeal the new decision). But this is hardly the only area where we have that problem…

[ Edited: 15 Jun 2018 at 01:55 pm by Elliot Kent ]
Welfare Rights Adviser
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Mike Hughes
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Elliot Kent - 15 June 2018 01:51 PM

I think I am continuing to go against the grain on this in that I think the DWP’s new policy is reasonable.

The fact is that lapsing an appeal is a completely bizarre concept to most people. If you are not in receipt of advice, you file an appeal and receive a letter through the post several weeks later saying that the decision is changed and you have an award of benefit now (perhaps not as much as you hoped - but better than before). A couple of days later, you get a letter from HMCTS saying that your appeal has come to an end. A “man on the street” would be forgiven for thinking that was the end of it.

Even if the unhappy claimant realises they have a further right of appeal, lapsing puts them to the trouble of getting and filling out a new appeal form and restarting their appeal from day one. There’s another wait of at least four weeks for the new response to be put together and you are at the back of the queue for hearing dates. If you want advice, its another two week wait for an appointment with your adviser. If I’ve been awarded SR/- and I was hoping for SR/SR, I might think this isn’t worth the trouble and just sit on my thumbs instead.

It seems rational for me, if the appeals officer thinks that a decision is wrong, to contact the claimant and establish whether they would be happy with the proposed revision. If they would be happy - then you can lapse as before and a pointless appeal is avoided. If not, then you can avoid putting everyone to the trouble of re-filing by making appropriate concessions in the submission.

The proposition that the DWP might somehow be using this as a way to “settle” or “pay off” claimants at levels below what they know they’re entitled to doesn’t strike me as plausible. I think that it would require a level of self-awareness and competence which is difficult to ascribe to the DWP as an organisation. They would have to sit down and (accurately) establish what the likely award from a Tribunal is (accounting for the “extra evidence” which explains all Tribunal decisions ever and which they haven’t seen) and then work out what the lowest-level that the claimant could be “bought off” for would be. I think the more likely explanation is that “offers” are lower than would be argued for at Tribunal because the DMs genuinely (although wrongly) undervalue claims as a result of the organisational guidance, training and attitudes.

I do think it speaks volumes about the historically high level of distrust which exists at the moment that this policy - which I genuinely think is intended to make everyone’s lives easier - is being seen as some sort of dishonest or underhanded tactical ploy by claimants and advisers.

That said - I do accept that there is work to be done on ensuring that the law is accurately explained to claimants (i.e. that they can still appeal the new decision). But this is hardly the only area where we have that problem…

I’ve been party (mostly accidentally) to several of these lapsing conversations in the recent past and I’m afraid that the level of distrust leveled at DWP is entirely justified. I can think of 2 off the top of my head.

One case, where we are going for enhanced rate of both elements, was the subject of an IAS complaint after which they revised their recommended communication points from 2 to 8. Call from DWP suggested that, whilst they accepted the 8 points, they would remove the other 6 points already given on daily living and give nothing on mobility. If the client agreed to withdraw they would go with the 8. If the client didn’t withdraw then they would fight it all at FTT. One complaint later we have enhanced rate DL and are still going to FTT.

Notably the caller stated outright that no tribunal would buy enhanced rate DL! A 2nd claim was made by the claimant which time limits the 1st award. The CM themselves awarded enhanced rate on an ongoing basis. So much for that theory then.

Second case, where a similar line was taken. “If you go to FTT we will fight both components but we’re prepared to give you this if you don’t.”. To be clear, this isn’t an inference. It’s not implied. It’s threatened outright and I happened to be on a HV when the call came in.

The history of the DWP is littered with examples of where face to face contact as a (let’s be generous) well intentioned attempt to personalise services has done nothing but introduce subjectivity to an extent it could be construed as somewhere between bullying and maladministration. Social Fund reviews? Personal appointments to claim specific benefits and the “There’s no point in me giving you a claim pack for X as you won’t qualify”.

Lack of training and the correct culture inevitably result in people realising that well informed punters can rip them apart and so they will find any means to sound authoratitive.

 

 

Helen Rogers
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The problem with “bargaining” is that staff at PIP are telling claimants that once they accepted the “offer” there is no further right of appeal.

Another problem is that PIP insist on speaking to the claimant before putting (what they see as the) correct award into payment.  If the claimant can’t return their call within an arbitrary deadline, PIP send the appeal bundle off and refuse to consider paying the claim (until it comes back from tribunal, of course).  I had a client in this situation who was in hospital when the call from PIP came, so there was a question about whether she was well enough to make the decision before the cut off the next day that PIP decision maker gave us.  So PIP decision makers are happy to send appeal submissions off knowing that the incorrect award is in payment.  (They’re not paying but they actually think that benefit is due.)

When I worked at the Benefits Agency (as then was) many years ago, there was a motto - “The right benefit to the right person at the right time.”  Clearly this no longer applies.