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Another FTA but no DLA reinstatement

 

JojoMitchell
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Hi everyone

I am getting myself in a tangle having read the TP & PIP regs plus OM v Secretary of State for Work and Pensions (PIP) [2017] UKUT 458 (AAC) which states that DLA can be reinstated if good cause is accepted for FTA.

My client FTA in Dec 17 and good cause was accepted at MR stage and she now has a new PIP assessment date but PIP are stating that they can only reinstate her DLA if there has been a “procedural error”!  This is not what PIP originally told us and as there has no been a negative decision, surely the DLA can be reinstated?  PIP are now saying that they will backdate her PIP to the date her DLA stopped if she is awarded PIP.

Who is correct here?

Thanks as always
Jo

     
AlexJ
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The DLA should clearly be reinstated. I think that’s quite clear from CPIP/1567/2017 (the OM case you cited above) which says:

The effect on the claimant’s award of DLA
37. Since the decision disallowing entitlement to PIP has been set aside, the basis for the
application of regulation 13(1)(a) of the Personal Independence Payment (Transitional Provisions)
Regulations 2013 (see paragraph 10 above) falls away, because there is no longer a negative
determination under regulation 9(2) of the PIP Regulations in existence. It is perfectly clear from
the terms of the notification letter of 22 July 2016 that the Secretary of State’s decision covered
both PIP entitlement and the termination of entitlement to DLA. The claimant’s appeal against that
decision must therefore be regarded as covering both those aspects of the decision. Accordingly,
my substituted decision sets aside the termination of entitlement to DLA after 9 August 2016.
Payment of the amount due under the existing of award of DLA from 10 August 2016 onwards
must now be made unless and until either that award terminates under its own terms or is brought
to an end by supersession, a PIP assessment determination is made (regulation 17 of the
Transitional Regulations), another negative determination is made or there is a failure to comply
with some other requirements (regulation 13(1)).

     
Elliot Kent
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I don’t necessarily agree that OM sets any general proposition that you are entitled to your DLA back if the FTA decision is “retracted”.

Judge Mesher in OM opted to set aside the decision which embodied the negative determination in that case - leaving something of a decision making vacuum which the DWP needed to fill. That is something which a Tribunal can do (at least in principle), but it is not entirely obvious that the DWP has an equivalent power to “set aside”, “undo” or “retract” one of its own decisions pending some future event (i.e. the new medical assessment). It might be that it does have that power, but I think it might be more likely that it is simply making a determination along the road to making a revising decision.

Regulations 13(2) and 17(2)(b) of the Transitional Provisions seem to anticipate the case you are describing and suggest effectively that if the DWP do decide to award your client PIP, then it takes effect from when the DLA was stopped. (Good news if your client’s PIP award beats the DLA one, bad news if it’s the other way round).

It’s all a very messy issue created by some pretty poorly written legislation and the DWP seemingly failing to actually ask claimants why they didn’t attend assessments before making FTA decisions.

     
JojoMitchell
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Thank you!  I have a feeling that this client will struggle to get the equivalent under PIP so she really could have done with her DLA continuing until the PIP decision.  I will try the OM with PIP anyway as the client has nothing to lose at this stage.

     
John Birks
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Elliot Kent - 02 August 2018 06:12 PM

I don’t necessarily agree that OM sets any general proposition that you are entitled to your DLA back if the FTA decision is “retracted”.

Judge Mesher in OM opted to set aside the decision which embodied the negative determination in that case - leaving something of a decision making vacuum which the DWP needed to fill. That is something which a Tribunal can do (at least in principle), but it is not entirely obvious that the DWP has an equivalent power to “set aside”, “undo” or “retract” one of its own decisions pending some future event (i.e. the new medical assessment). It might be that it does have that power, but I think it might be more likely that it is simply making a determination along the road to making a revising decision.

Regulations 13(2) and 17(2)(b) of the Transitional Provisions seem to anticipate the case you are describing and suggest effectively that if the DWP do decide to award your client PIP, then it takes effect from when the DLA was stopped. (Good news if your client’s PIP award beats the DLA one, bad news if it’s the other way round).

It’s all a very messy issue created by some pretty poorly written legislation and the DWP seemingly failing to actually ask claimants why they didn’t attend assessments before making FTA decisions.

any opinion on what happens if PIP is not awarded?

     
JojoMitchell
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Additionally PIP first told me that the DLA would be reinstated if good cause was accepted (which is has) but now they’re stating only if there’s been a procedural error.  Cannot find this in the PIP TP Regs…

     
John Birks
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Where they’re refusing to award for past period I’ve seen the phrase ‘...by operation of law…’

I’m also not sure of the legality of how reg 13 could apply - I think the SSWP is using 13(2) to deny the right of appeal of refusal of good cause, but only where PIP is awarded.

I’m not seeing why, if PIP is not awarded (for any reason) DLA is (legally) prevented from being put into payment.

The PIP office (in a current case) continue to make a right mess of it as they a) concede ‘good cause’  arrange an assessment, outcome (0points) 2) do not issue a decision but a supplementary submission with a PA4 to the appellant (not to HMCTS or the rep) say what the tribunal can and cannot decide and iii) unilaterally change the appeal to one of an entitlement issue.