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PIP supersessions

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AlexJ
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Hi all,

I’m sure people are familiar with the DWP terminating claims for PIP early when they send out one of their review forms a year before the original award is due to expire. The Upper Tribunal recently held that in order to terminate an award ahead of time, the DWP (and Tribunals) must show grounds for supersession and must explain the reasons for their decision and the reasons for preferring a new medical opinion over an older one. It was held that it is insufficient to assume that a new medical report somehow trumps an older report simply by virtue of being newer. 

I have a client who was originally awarded PIP ER for both components until November 2018. The DWP started a review of her award in November 2017 and in January 2018 decided to reduce the award to SR for both components. We have appealed against the decision and one of the arguments we will be submitting is that there were no grounds to supersede the original award. We have had some success with this argument in the past on the back of CPIP/2621/2016. This argument is particularly relevant to this case, as the DWP have failed to provide an appeal bundle at all, despite numerous directions from a Judge, and we have been asked to supply what documents we can regarding the claim in lieu of a proper bundle. So the DWP definitely won’t be showing any grounds for supersession, given that they’ve not even supplied a bundle, and consequently it seems very likely that the original award will be reinstated.

This causes a problem. If the original award is reinstated by a Tribunal on the grounds that there were no grounds to supersede (let’s say for the sake of argument that it gets heard by a Tribunal in March 2019), it will mean that client’s PIP ended in November 2018. Which will mean that her existing award will terminate, and she will have to make a new claim in March 2019 when she gets the Tribunal’s decision. And for the intervening four months, she will have received only the standard rate of both components which will technically have been overpaid (although I doubt very much that the department would have any luck recovering the overpayment).

It may seem a daft question, but is it possible for a claimant to make a new claim for a benefit that they already are in receipt of? My logic is that if the client claims PIP in November 2018 (ie. the day after her original award would have expired), gets refused on the grounds that she currently gets PIP, and then subsequently it is decided by a Tribunal that the existing award of PIP is terminated from November, she could then go back to revisit the new claim she made. I can’t see any other way around this, other than asking for compensation from the DWP. Putting a supersession request in now wouldn’t work either, because (aside from the fact that there has been no CoC) she would be asking for a supersession of an award that may subsequently cease to exist. 

Any thoughts would be appreciated.

Cheers

Alex

     
Elliot Kent
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Isn’t the better, neater, solution to all of this to argue:

(1) The Department was entitled to supersede the decision under reg 26

(2) However, the actual facts of the appellant’s circumstances are unchanged

(3) Consequently, the award of ER/ER was still appropriate and the Tribunal should make its own decision to award ER/ER for (say) another five years

     
Paul_Treloar_AgeUK
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Elliot Kent - 08 November 2018 04:28 PM

Isn’t the better, neater, solution to all of this to argue:

(1) The Department was entitled to supersede the decision under reg 26

(2) However, the actual facts of the appellant’s circumstances are unchanged

(3) Consequently, the award of ER/ER was still appropriate and the Tribunal should make its own decision to award ER/ER for (say) another five years

Must admit I was having similar thoughts. As long as client has reasonably solid case for EDL/ERM, this seems more appropriate route.

     
Ruth_T
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In the handful of similar cases that we have dealt with, the tribunal has:
1) decided that there were no grounds to supersede the original award;
2) extended the award for just long enough to ensure that there can be a renewal claim, with no gap.

     
John Birks
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Ruth_T - 08 November 2018 07:58 PM

In the handful of similar cases that we have dealt with, the tribunal has:
1) decided that there were no grounds to supersede the original award;
2) extended the award for just long enough to ensure that there can be a renewal claim, with no gap.

I’ve seen this too and it’s been followed by the DWP.

Legally I’d say the extension has no legal force but it’s a neat solution to the problem and is currently working.

I don’t understand the other ideas saying there are grounds to supersede from ER for x dates to ER for x dates on the basis of a poor report.

In similar cases I’ve advised a supersession may be requested from or no more than 6 months before the relevant date (the original scheduled end date) as this can be treated as a renewal following the original decision.

Downsides are one more application, assessment and possibly an appeal at an already stressful time - but if the first appeal is successful (and an extension made to allow for a renewal) a further claim would be required anyway and potentially the renewal claim can be tagged on to the original appeal.

     
Elliot Kent
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John Birks - 09 November 2018 10:50 AM

Legally I’d say the extension has no legal force but it’s a neat solution to the problem and is currently working.

Quite. If the logic of the decision is that supersession was impermissible then they can’t supersede to extend the award (particularly because doing so is to impermissibly take into account circumstances which have developed after the decision date).

John Birks - 09 November 2018 10:50 AM

I don’t understand the other ideas saying there are grounds to supersede from ER for x dates to ER for x dates on the basis of a poor report.

It’s really dead simple imo.

The first question is “Can we supersede?” If an assessment report exists, then the answer is “yes” because that’s what Reg 26 says.

The second question is “What decision should we make?” which is entirely at large so the Tribunal can make whatever decision it likes - taking account of all the various reports and whatnot and not just automatically rubber stamping the new report.

The existence of the report, rather than its quality, is decisive of the first question but the advice in the report is not decisive of the second question (c.f. what the DWP might think) and the Tribunal should reach its own view taking account of all the evidence as to what actual decision should be made.

I am very concerned that this “supersessions are impossible” logic seems to be taking hold amongst a good proportion of the FtT - because if you think about it, it’s only going to be to the detriment of claimants in the long run.

      [ Edited: 9 Nov 2018 at 12:42 pm by Elliot Kent ]
past caring
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I wonder whether something isn’t missing from the opening post?

If the original ER/ER award was set to expire in November 2018, was reviewed in November 2017 and a decision made in January 2018 to reduce to SR/SR, surely the length of award was extended beyond November 2018? It’s just possible that the original end date was left in place, but I very much doubt it.

So unless the client is separately unhappy with the length of the new award, couldn’t you just go as suggested? Argue that as Elliot has indicated, reg. 26 UC/PIP etc D and A Regs gives the power to supersede. Fine. Even though the DWP hasn’t produced a sub and therefore hasn’t produced the medical evidence/HCP report that triggered the reg. 26 power, there is no dispute that there was a report - client recalls going to the assessment and the MR decision refers to the contents of the report. Then it’s simply a case of producing the evidence to show ER?ER to be appropriate.

     
Mike Hughes
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Going off at a tangent I’ve had similar problems in the North West with what appeared to be a “no bundle” scenario. At least three off the top of my head in the past year. In most cases it turns out that there absolutely was a bundle; it had been forwarded to HMCTS in Liverpool and the latter are in such a mess administratively they simply hadn’t linked the case. Incompetence of the highest order and mightily frustrating given that in one case I had sufficient documentation to be able to reconstruct something resembling a pretty decent bundle and took half a day to copy it and get it over to them.

     
John Birks
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Elliot Kent - 09 November 2018 12:17 PM
John Birks - 09 November 2018 10:50 AM

Legally I’d say the extension has no legal force but it’s a neat solution to the problem and is currently working.

Quite. If the logic of the decision is that supersession was impermissible then they can’t supersede to extend the award (particularly because doing so is to impermissibly take into account circumstances which have developed after the decision date).

John Birks - 09 November 2018 10:50 AM

I don’t understand the other ideas saying there are grounds to supersede from ER for x dates to ER for x dates on the basis of a poor report.

It’s really dead simple imo.

The first question is “Can we supersede?” If an assessment report exists, then the answer is “yes” because that’s what Reg 26 says.

The second question is “What decision should we make?” which is entirely at large so the Tribunal can make whatever decision it likes - taking account of all the various reports and whatnot and not just automatically rubber stamping the new report.

The existence of the report, rather than its quality, is decisive of the first question but the advice in the report is not decisive of the second question (c.f. what the DWP might think) and the Tribunal should reach its own view taking account of all the evidence as to what actual decision should be made.

I am very concerned that this “supersessions are impossible” logic seems to be taking hold amongst a good proportion of the FtT - because if you think about it, it’s only going to be to the detriment of claimants in the long run.

We’ll never agree on this one I’m afraid as to me 26 cleary say ‘may’  as in;

...a pip decision **may** be **superseded** where, since the decision was made, the SSWP has received medical evidence from a HCP.

To supersede the quality of the report would (IMO) be very important.

Supersessions are not impossible - it just depends on the case.

     
Chrissum
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So I have a case where my client had his EMC reduced but his SDLC retained. The EMC award was made by a tribunal and the reduction has taken place within the tribunal award period. The DWP argue that the tribunal simply got it wrong (!) but they were not minded to interfere with that decision, instead arguing that the new medical report was a change of circumstances warranting the reduction, effectively seeking to supercede the tribunal decision.. CPIP/3556/2016 strongly indicates that the DWP should proceed with caution when doing this, so my submission deals with this pojnt suggesting that the original award be re-instated. I further submit that as this is not a new claim and the DWP are seeking, therefore, to change the original decision, including the prospective end date. I argue that by reducing the award and giving a new end date, this is a continuation of the original claim so the tribunal are entitled to re-consider the end date of that claim and also re-instate the award. My argument is that the purpose of a planned review is whether an award should continue at its level or not and if so whether a new end date should be imposed, thus allowing the tribunal to re-instate the award and extend its end date.
Not been tested and please shoot me down in flames if this doesn’t hold water.

     
John Birks
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I’ve seen something similar.

The SSWP makes a statement in the submissions to the effect that a previous tribunal awarding benefit had not justified why the points were awarded….’ ....as a Written Statement of Reasons had not been provided.’

The SSWP did not indicate any request for a statement was ever made within the provided legal timescales.

The process of the SSWP is (in effect) to use reviewing the award (under regs 11 & 26) as a mechanism to unlawfully challenge the earlier tribunal decision.

 

      [ Edited: 12 Nov 2018 at 09:53 am by John Birks ]
Chrissum
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Quite right John which is why the submissions inevitably include a phrase akin to “but I have decided not to change / interfere / look at that decision” i.e. the “original” decision as amended by the tribunal. (Usually because they can’t!). In my case they are using a (largely) discredited HCP report and discredited evidence from within it (including such gems as “was leant against a wall smoking so can walk 50m” and “was able to hold a cigarette so can use a knife and fork”, combined with proven to be false observations of walking distances)  to justify using the current evidence from the new HCP report to overrule the tribunal decision: “As the award by the tribunal and the original [HCP] were so different, I have used the findings of the latest assessment”.
Should be an interesting tribunal.

     
Elliot Kent
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John - I think you might be right that we will never agree on this but yes I realise that it says “may”.

Perhaps you might argue that a Tribunal is entitled to say “well the evidence which seeks to persuade us to supersede is so weak that we will leave the award as it is” but that isn’t a call that can be made unless the Tribunal has actually considered and evaluated all the evidence.

And if the Tribunal has considered and evaluated all the evidence, why not just go on to make a proper decision? It’s a ridiculous result if instead of just making a new decision, the Tribunal says “well, we are persuaded that the decision to stop your award was unjustified - but instead of actually making you a new award we are going to allow your claim to expire at some arbitrary point in time at which point you will need to claim PIP from scratch”.

It strikes me that it would be a much stronger argument in the context of ESA (or indefinite awards of PIP) which is why I find it odd that its only an argument which PIP Tribunals are giving any credence to.

Chrissum - I think there are two essential approaches. Either the old FtT decision can and should be superseded or it can’t or shouldn’t.

Your argument is trying to have it both ways - you are trying to say that either the new FtT has no grounds to supersede or should decline to make use of those grounds in as far as the substance goes but that at the same time, the new FtT can and should supersede so as to make a new award with a later expiry date.

I don’t think it works. The end date of the award is as much a part of the old FtT’s decision as the actual points awarded. You can’t say that the old decision is untouchable - save that actually the new FtT can change it to increase its term.

Again, I think the better argument is to say “Well the old FtT decision is extremely powerful evidence of my client’s difficulties at that time. My client says that nothing has changed. You should believe him. As such, it stands to reason that you should supersede under reg 26 and make a new award of PIP with a later end date”

But then the FtT is plainly finding these arguments persuasive and the DWP seems to have no interest in taking it to the UT so what do I know.

      [ Edited: 12 Nov 2018 at 05:54 pm by Elliot Kent ]
Chrissum
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Thanks for that Elliot. Your arguments make perfect sense, if mine quite didn’t. This is one of those areas where there is as conflict between do we let the DWP get away with this versus what is in the client’s best interests. I think tribunals are seeing more and more of these type of decisions with awards being reviewed well within their award periods (on the basis of the miracle cures that ATOS / Capita claim to have taken place), just as they are with failures to attend where the DWP subsequently proceed with an assessment / suggested award.
Where there has been a reduction / removal of an award, my first priority must be to re-instate that award and if the award has been reduced “illegally” this is potentially the “banker” to do so. However, as has been rightly pointed out all that does is re-instate the original end date of the award, which is of no use with the length of time that it is taking to get to tribunals. My argument is therefore that these are not new claims but planned reviews, so the burden falls squarely upon the shoulders of the DWP to show there has been a relevant change of circumstances i.e. an improvement. In my client’s case I am arguing that they have failed to discharge this burden so there are no grounds to reduce the award made by the tribunal. However, on the face of it if the tribunal do feel there has been a change (i.e. a deterioration) that may give them grounds to look at the length of the award again.
I fully appreciate that this does appear contradictory but it does firstly protect the client’s original award and secondly potentially extends it. All it needs the tribunal to accept is “different” grounds for supersession than that suggested by the DWP. The MR case doesn’t say that you can’t interfere with a tribunal’s decision just that there needs to be clear reasoned grounds for doing so. If the facts in my case indicate that there has been a deterioration then arguably that shows grounds for superceding the decision on length. Like I said, an untested argument so I appreciate the hole-punching!
I expect the tribunal in my case will skirt around the issue of whether there were grounds or not and just increase the award the DWP made with an appropriate extension. So why bother? Well firstly I feel I owe a duty to the tribunal to raise the issue and secondly if that tribunal goes pear-shaped, there are potential grounds for challenging an adverse decision.
Having said all that I do like the” FTT decision being powerful evidence when combined with my client’s no change indications” argument as it is so much more simplistic and easier to make! I might just steal that one!

     
John Birks
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Elliot Kent - 12 November 2018 05:37 PM

John - I think you might be right that we will never agree on this but yes I realise that it says “may”.

Perhaps you might argue that a Tribunal is entitled to say “well the evidence which seeks to persuade us to supersede is so weak that we will leave the award as it is” but that isn’t a call that can be made unless the Tribunal has actually considered and evaluated all the evidence.

And if the Tribunal has considered and evaluated all the evidence, why not just go on to make a proper decision? It’s a ridiculous result if instead of just making a new decision, the Tribunal says “well, we are persuaded that the decision to stop your award was unjustified - but instead of actually making you a new award we are going to allow your claim to expire at some arbitrary point in time at which point you will need to claim PIP from scratch”.

It strikes me that it would be a much stronger argument in the context of ESA (or indefinite awards of PIP) which is why I find it odd that its only an argument which PIP Tribunals are giving any credence to.

Chrissum - I think there are two essential approaches. Either the old FtT decision can and should be superseded or it can’t or shouldn’t.

Your argument is trying to have it both ways - you are trying to say that either the new FtT has no grounds to supersede or should decline to make use of those grounds in as far as the substance goes but that at the same time, the new FtT can and should supersede so as to make a new award with a later expiry date.

I don’t think it works. The end date of the award is as much a part of the old FtT’s decision as the actual points awarded. You can’t say that the old decision is untouchable - save that actually the new FtT can change it to increase its term.

Again, I think the better argument is to say “Well the old FtT decision is extremely powerful evidence of my client’s difficulties at that time. My client says that nothing has changed. You should believe him. As such, it stands to reason that you should supersede under reg 26 and make a new award of PIP with a later end date”

But then the FtT is plainly finding these arguments persuasive and the DWP seems to have no interest in taking it to the UT so what do I know.

I’m pretty sure that in making the decision to not supersede a tribunal will have read and considered all the evidence and the legislation.

We’re not dealing in absolutes. Everything depends on the evidence.

The point we’re dealing (in this thread)  with is the presence of a new HCP report offering a different opinion on the same facts.

e.g. OA in both knees - two reports - two years apart -  opinion 1 - can walk 19metres.  Opinion 2 - can walk 22metres.

Nothing has changed but the HCP conclusions differ.

Opinion 1 led to an award of ERM for 3yrs. Opinion 2 obtained 12months before the **specified** end date (whether ny SSWP or tribunal) and therefore renewal process doesn’t apply.

If there is a mistake as to fact, a worsening, an improvement or any other relevant change of circ’s then the rules of supersession and review apply asdo the dates of disclosure or non-disclosure.

 

 

     
Chrissum
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Indeed, but a change of opinion (e.g. the distance they can walk) is not the same as a change of circumstances, though it may be evidence of an underlying change. It is for the tribunal to establish whether there has been a sufficient change of circumstances to warrant a supersession. No-one is asking the tribunal to throw out the decision entirely but merely to decide whether a supersession is justified based on the factual conclusions they reach from the evidence before them. The DWP still have to demonstrate grounds, whether warranted or otherwise.