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ESA award relevant to PIP

 

MaggieB
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Client has been awarded 15 points on mobility descriptor of ESA.  He has no points on MC of PIP which we are appealing.  Is there some case law on this or am i getting muddled with DLA to PIP migration? I thought there was but can’t find it on RN

     
Ed Pybus
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In MA (https://www.gov.uk/administrative-appeals-tribunal-decisions/ma-v-secretary-of-state-for-work-and-pensions-pip-2017-ukut-351-aac) the Judge directed the DWP to supply info regarding the claimants most recent ESA assessment - however this won’t always be relevant.

There was also LS (https://www.gov.uk/administrative-appeals-tribunal-decisions/ls-v-secretary-of-state-for-work-and-pensions-pip-2016-ukut-573-aac) that raised the issue of the relevance of ESA descriptors to PIP which lost at appeal - but has been granted permission to appeal to CoA.

Neither of these directly answers your question but does raise the issue of ESA assessments in relation to PIP.

     
Jane O-P
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I usually get hold of the ESA85 and submit that as evidence for the PIP appeal - that avoids the debate about whether the ESA award itself is relevant.

     
Ruth Knox
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I’ve just been dealing with the same issue the other way round - someone who was found to be met mobility descriptor 2d - 20 to 50 metres but scored no points on the mobility activity for WCA purposes. The case law couldn’t be clearer on this - para 8 of AF v SSWP (ESA [2011] UKUT 61 (AAC) says

“ Secondly, it was noted in the written submission to the First-tier Tribunal on behalf of the Claimant (p64) that the Claimant had an award, apparently made some 3 years previously, of the higher rate of the mobility component of disability living allowance. That would imply 15 points under descriptor 1 (b).  In my judgement the Tribunal should have had before it the evidence on the basis of which that award was made.  Although the Claimant’s representative had not, it seems, made this point the First-tier Tribunal should in my judgement have done so on its own initiative.”

Obviously the descriptors aren’t identical (ESA considers possibility of manual wheelchair as way of mobilising) but they are very close. The logic must surely apply equally for the relevance of ESA medical for a PIP appeal

     
SueLov
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You are probably aware of the following cases - I use these in every submission to counter the standard DWP justification for their decisions ie : in ESA cases they always state “... PIP is not relevant…” and in PIP cases “... ESA is not relevant…” :

1. CPIP/1534/2015 – there is a requirement to refer to specific medical evidence if it is significant

2. CIB/1639/2009 : Use of medical evidence from a claim to another benefit

3. CPIP/2589/2017 : … the S of S is obliged to provide copies of documents relevant to the case in his possession …. the S of S failed to inform the Tribunal that there had been a previous award

4. CE/3630/2014 – Although this case deals with a comparison of DLA Mobility High Rate Component and ESA Mobilising activity the principle established is persuasive when dealing with PIP cases dealing with similar issues

     
Ruth Knox
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Thanks Sue, this is really useful.

     
nevip
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Jane O-P - 28 June 2018 12:06 PM

I usually get hold of the ESA85 and submit that as evidence for the PIP appeal - that avoids the debate about whether the ESA award itself is relevant.

I agree.  It’s an evidential issue, not a legal one.  The question being: does the ESA medical report have any probative value in respect of the relevant PIP criteria.

     
Elliot Kent
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At least the DWP has a clear line on this.

(From the Submission Generator 5000 - https://www.whatdotheyknow.com/request/origins_of_and_list_of_stock_phr)

The Employment and Support Allowance (ESA) examination covers different entitlement criteria to those used on PIP. However, the full functional assessment completed during this examination (including an interview with the claimant, medical examination findings, medical opinion and a mental health assessment), is relevant when considering PIP qualifying criteria.

It should be noted the appellant is currently in the Work Related Activity Group for ESA. This category is normally reserved for those people less severely affected by any health condition present.

Although [Title] [Surname] receives ESA, this shows [he she] was assessed as unfit for work. This is not relevant to the PIP qualifying criteria.

PIP and ESA have different entitlement conditions. Although [Title] [Surname] is entitled to ESA, the ESA evidence is over [number] [Select years/months] old and the recent PIP evidence shows [Title] [Surname] has the functional ability to carry out all daily living and mobility activities shown in the decision under appeal. I agree with all descriptors selected.

     
Ed Pybus
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Elliot Kent - 30 June 2018 08:47 AM

At least the DWP has a clear line on this.

(From the Submission Generator 5000 - https://www.whatdotheyknow.com/request/origins_of_and_list_of_stock_phr)

I hadn’t see that FOI before. 130 pages - that’s pretty….... comprehensive.