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Over 65 PIP Application

neilcoll
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Would appreciate guidance on this one.
Client is now 68. Had indefinite award of DLA at HRC and HRM (foot amputee).

Went to Pakistan for 3 months in July 2018. Missed his PIP migration letter and as no response DLA stopped.
He sought assistance on his return and apparently told to claim Attendance Allowance and subsequently awarded Higher rate AA.

He was recently referred to me as he has no “mobility”. I have explained the difference in benefits.

Can he now apply for PIP???? Is there not rules allowing this within 12 months of a DLA award (even allowing for fact he is now 68).

Of course there is the added complication of the AA award which he would have to withdraw. Thoughts folks!

Paul_Treloar_AgeUK
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Can’t see how this would work. He didn’t make PIP claim when invited to so DLA claim stops and nothing you can really do about that (as opposed to if he had made the PIP claim but failed to provide information with good reason). CPAG p.620.

The rules around rapid reclaim of PIP if you’ve been abroad for less than 12 months which caused PIP entitlement to end wouldn’t seem to apply as he didn’t have an entitlement to PIP when he left. CPAG p.750.

Then there’s the complication of having claimed and been awarded AA. Think he’s lost the mobility now I’m afraid.

Elliot Kent
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Reg 27(3) of the PIP (TP) Regs would appear to allow him to make a claim for PIP if he (a) was under 65 on 08/04/2013 which he presumably was or he would not have been invited to transfer and (b) he has been entitled to DLA in the preceding 12 months.

I’m not sure what the consequences would be if he claims and is awarded PIP.

Paul_Treloar_AgeUK
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Well spotted Elliot. I agree that the PIP claim does seem a possibility, but isn’t it going to run up against the fact of an AA claim having been made and an awarrd made on the claim?

csmk
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The client may be able to make a claim from the PIP(TP) regs but there are restrictions on getting PIP Mobility after 65 years- pg 748-749 CPAG/The SS(PIP) Regs 2013 Sec 15 and 26, person making a new claim for PIP over 65 years can only get mobility under

Sec 15 (d) must be substantially the same health condition or a new condition which developed as a result of the original condition an award was made for.

Sec 26: enhanced mobility is awarded only if they had enhanced on a previous award which ended in the last year or standard rate is only awarded if either enhanced or standard rate was awarded within the last year

I’m not sure if the client needed to have a previous mobility award for PIP prior to making a new claim (which wouldn’t be applicable from what you’ve said) or if it would count if Mobility component on DLA had previously been awarded to get the mobility component for PIP; it looks like it would just be based on a previous PIP mobility award.

Please correct me if I’m wrong here though.

Paul_Treloar_AgeUK
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It appears that you can establish entitlement to PIP mobility component post-65 for the first time on a transfer from DLA only. IThis is because of the effect of the regulation Elliot quotes - reg27(1) disapplies sec.83(1) of the WRA 2012, which is what usually prevents people over pension age from claiming either component of PIP. See p.619 CPAG second para.

It’s been discussed elsewhere on here before, but I can’t find the thread - I was pleasantly surprised to hear about this.

csmk
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Ahh that’s good news! Definitely pleasantly surprised, thank you.

neilcoll
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Cheers folks for the input. This type of case is a first for me…..and I suppose for most on here.

So it appears that so long as he withdraws his AA entitlement he can make a PIP claim.

My major concern would be that I will face difficulty in making the initial claims by telephone and them not allowing it due to age????? Can I ask for the grounds for refusing the claim in writing….so as to challenge???

Tactics please :)

csmk
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I and my colleagues from my last bureau had this issue. Occassionally you will get a telephony adviser refusing to complete the PIP application if client is over 65 years.

Normally we bypassed this by requesting to speak to a team leader or just hanging up and calling again to speak to someone else, quoting the regs if they question it, you will eventually get through to someone who accepts the claim, usually isn’t an issue after the 2nd or 3rd call back. Might be the quickest option to avoid waiting times for issuing a complaint.

On the PIP2 form itself, we just write in additional information the age rules for making a new claim, just to make sure.

Paul_Treloar_AgeUK
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neilcoll - 10 January 2019 10:53 AM

Cheers folks for the input. This type of case is a first for me…..and I suppose for most on here.

So it appears that so long as he withdraws his AA entitlement he can make a PIP claim.

My major concern would be that I will face difficulty in making the initial claims by telephone and them not allowing it due to age????? Can I ask for the grounds for refusing the claim in writing….so as to challenge???

Tactics please :)

No in respect of withdrawing AA claim now that an award has been made. The decision on that is final now and effectively foreshortens the period of any possible PIP award on dialy living side at least.

However, I am wondering whether there is an argument to look at pursuing PIP mobility element only but I can’t find the thread where dual receipt of AA and DLA mobility was being discussed. I’m very busy today so might not be able to come back until tomorrow but I would be cautious about doing anythng for now.

The CASA
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Paul_Treloar_AgeUK - 10 January 2019 09:08 AM

Well spotted Elliot. I agree that the PIP claim does seem a possibility, but isn’t it going to run up against the fact of an AA claim having been made and an awarrd made on the claim?

Don’t we need to be careful with clients over 65 who have DLA/PIP refused on review with appeal pending. I have come across a couple of cases recently in similar circumstances but have claimed AA. Am I right in thinking the un/successful claim for AA, ends the PIP claim.
My reasons for this are that the eventual tribunal is restricted to considering entitlement to PIP until the date of decision of the AA claims by the principle of Res Judicata. The following explanation is from Wikipedia.
Res judicata (RJ) or res iudicata, also known as claim preclusion, is the Latin term for “a matter [already] judged”, and refers to either of two concepts: in both civil law and common law legal systems, a case in which there has been a final judgment and is no longer subject to appeal; and the legal doctrine meant to bar (or preclude) continued litigation of a case on same issues between the same parties. In this latter usage, the term is synonymous with “issue preclusion”.
In the case of res judicata, the matter cannot be raised again, either in the same court or in a different court. A court will use res judicata to deny reconsideration of a matter.
The matter already judged is the claim for AA and this automatically excludes any reconsideration of award of PIP.  Obviously, a Tribunal could not award PIP for any period after the effective date of athe award of AA.  Unless regulations specifically allow, it is my opinion the dogma of RJ prevents a Tribunal from awarding PIP.
This raises serious implications for advisors whose clients are over 65, who have lost DLA or on migration re not awarded PIP. If we do not advise our clients who have appealed to consider claiming AA. We are failing in our duty of care. If we do advise a claim for AA without the caveat of RJ. We are failing in our duty of care.
In today’s litigious society, which we are part of concerns me. It’s a classic case of, “damned if we do and damned if we don’t!”

[ Edited: 16 Jan 2019 at 01:15 am by The CASA ]
csmk
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Was this the thread you were looking for Paul? https://www.rightsnet.org.uk/forums/viewthread/10260

Very interested to see if PIP Mob could be paid alongside AA. Never knew DLA mob could be paid alongside it.

Paul_Treloar_AgeUK
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csmk - 16 January 2019 11:49 AM

Was this the thread you were looking for Paul? https://www.rightsnet.org.uk/forums/viewthread/10260

Very interested to see if PIP Mob could be paid alongside AA. Never knew DLA mob could be paid alongside it.

Yes it is, thanks.

I think PIP and AA cannot co-exist, see post 14 https://www.rightsnet.org.uk/forums/viewthread/10260/#53874

So it only works for AA and DLA mobility in theory.

JAS1
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Related question, didn’t want to start new thread.

Client transferred from DLA to PIP. She was just under 65 on 8 April 2013 so just missed the cut off. Got reduced from HR DLA Mob to SR PIP mob. Was advised not to appeal due to risk of losing whole award so did nothing. She has evidence showing her mobility needs started before she was 65. Is there any avenue open to her to even apply for ER mob? Or has that ship sailed?