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Cautionary tale - PIP FTA dec. ‘transforming’ into an ent. dec. at appeal

 

Peter Turville
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Welfare Rights Worker, Oxford Community Work Agency

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A cautionary tale - can you spot the problem - DWP cannot! (case referred to us at appeal stage)?

DLA migration claim made - April 18.
DWP make FTA decision - June 18.
Client makes late MR (which appears to have been accepted) giving reasons for FTA - Sept 18.
Client attends an assessment - Oct 18
MRN issued (0 pts) - Nov 18
Appeal submission now received.

I have just spoken to an appeal writer within PIP appeals team who stated that PIP do not have to make a new decision on accepting good cause. Said they had never seen one(!). Apparently because client was put back into the claimant journey that shows that good cause was accepted.

Your starter for 10 - what decision is before the tribunal and within its jurisdiction?

This is not the first such case we have seen. In one case (referred at SOR stage) we had to apply for leave to appeal where tribunal had failed to spot the dec. under appeal was actually a FTA and not an entitlement dec. (trib had awarded 0 pts).

Daphne - an issue for stakeholders?

     
John Birks
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Welfare Rights and Debt Advice, Stockport Council

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It’s not unusual - Sir Thomas John Woodward OBE

The appeal is for the ending of the DLA - I think the following will deal with this for you

https://www.gov.uk/administrative-appeals-tribunal-decisions/om-v-secretary-of-state-for-work-and-pensions-pip-2017-ukut-458-aac

     
ClairemHodgson
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Solicitor, SC Law, Harrow

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Peter Turville - 15 March 2019 11:40 AM

A cautionary tale - can you spot the problem - DWP cannot! (case referred to us at appeal stage)?

DLA migration claim made - April 18.
DWP make FTA decision - June 18.
Client makes late MR (which appears to have been accepted) giving reasons for FTA - Sept 18.
Client attends an assessment - Oct 18
MRN issued (0 pts) - Nov 18
Appeal submission now received.

I think so.

The decision of November 18 gives 0 points as it is said to be the response to his earlier MR notice re the FTA?  and never mind what the actual assessment says.

     
Elliot Kent
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Shelter

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What do you want to happen? Because it may or may not be in your client’s interests to have the Tribunal make a decision on the substance of the case (e.g. if your client stands to do significantly better under the PIP regime than under DLA)

If not, then you could refer the DM to ADM Memo 24/18 para 11-15.

     
ROBBO
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Welfare Rights Team, Stockport Advice

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John Birks - 15 March 2019 01:27 PM

It’s not unusual - Sir Thomas John Woodward OBE]

Tom Jones, surely?

     
HB Anorak
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benefits consultant/trainer, hbanorak.co.uk, east london

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ROBBO - 15 March 2019 01:46 PM
John Birks - 15 March 2019 01:27 PM

It’s not unusual - Sir Thomas John Woodward OBE]

Tom Jones, surely?

If you two are sitting in the same room at the moment, John can do the “whoosh” thing with his hand over his head

      [ Edited: 15 Mar 2019 at 02:27 pm by HB Anorak ]
ROBBO
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Welfare Rights Team, Stockport Advice

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You know, I wondered why he was doing that.

     
Peter Turville
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Welfare Rights Worker, Oxford Community Work Agency

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Elliot Kent - 15 March 2019 01:37 PM

What do you want to happen? Because it may or may not be in your client’s interests to have the Tribunal make a decision on the substance of the case (e.g. if your client stands to do significantly better under the PIP regime than under DLA)

If not, then you could refer the DM to ADM Memo 24/18 para 11-15.

I have had some further entertainment in a call back from PIP today trying to explain / justify within the Regs what they have actually done.

PIP now state that ‘good reason’ was accepted in Aug 18 on the day they also referred the client back to the provider. They still insist that here is no requirement to issue a decision notice to that effect. They also accept that the MRN was wrongly issued (it should have been an initial entitlement decision) following the MR against the FTA decision (which had by that date apparently been revised) but DWP are happy for the appeal to proceed as against the entitlement decision as it was issued & worded as an entitlement MRN.

They had also provided two different effective dates in the submission for the operation of PIP(TP)Reg. 17!

In my clients case it may be beneficial for the tribunal to determine the appeal is out of jurisdiction (as the actual decision under appeal (if it is a valid appeal at all) is against the original FTA (which has apparently been revised ) and therefore DLA mrcc+lrmc should be reinstated. PIP sr+sr probably equally justified. However given my clients health conditions and the prospect of further delay the pragmatic approach is probably to go ahead as if the appeal were a straight forward entitlement appeal (assuming the tribunal are prepared to do so!).

I merely offer this case as a cautionary tale for other advisers about the problems DWP ineptitude in such cases can cause!

     
T Benson
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Bristol City Council WRAMAS

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I had one like this and it caused me a hadache thinking about it! was alright in the end though. I think the key is to seek directions from the judge setting out what has happened and why there is a problem.

     
Peter Turville
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Welfare Rights Worker, Oxford Community Work Agency

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For the record the tribunal accepted it had jurisdiction and went ahead as an entitlement appeal (ERDL + SRMC from 0 pts). Having contacted PIP appeal section the DWP did make an additional submission on Monday to confirm they had revised the FTA decision (but not told anyone) and miraculously it was before the tribunal yesterday!

Elliott - I didn’t have to rely on the decision but will be helpful in any future cases - clearly ours were not isolated cases.