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Client wants to challenge 2 separate PIP decisions at once, is this wise? 

 

JAS1
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Hi,

Client’s wife got PIP reviewed and got 0 points both components (previously on ER DL and SR Mob). Client did MR and got MR notice March 2019, unsuccessful.

In June 2019 client got letter regarding the DWP review of MH and RJ cases, stated no change to benefit in light of changes in law applying from 07/01/2019 – still on ER DL and standard MOB from 07/01/2019.

Client wants to do MR on June 2019 decision as feels wife should have been getting ER MOB in January 2019.

Client is going to appeal March MR decision of 0 points.

Is it wise to challenge both decisions? Even if they are successful challenging the June decision it only applies from 7th January 2019 to whenever PIP ended on the review (client couldn’t remember this date).

I don’t do direct appeal work, out of interest what actually happens if someone appeals two decisions on the same benefit at once? Could one just end up overwriting the other? I assume, if both successful, the appeal on the June 2019 decision would apply from 07/01/2019 up until the 0 point decision then the March 2019 decision would apply after this?

Seems wiser to me just to do a late appeal on the 0 point decision and forget about the MH and RJ review decision. It’s not a very strong case for ER MOB anyway IMO.

Thanks

     
HB Anorak
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Is it a free hit?  I suppose the risk is that the existing award is reduced or lost from January, which couldn’t happen if your client leaves it alone.  In reality, the odds are against that because of the very high success rate on appeal: simply not getting enhanced M is probably the worst that can happen from January.  But as a matter of law there is a risk and as you seem to feel that the appeal would be a bit of a waste of time then on balance the better option might be to let it go.

     
JAS1
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Thanks Anorak. That’s what I was worried about - they are successful and get the SR Mobility upped to ER, then a decision gets made on the other appeal to award SR Mobility and this overwrites the ER. I am honestly not sure if that is how it would work though or whether the tribunal would just leave the other decision alone.

     
HB Anorak
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I don’t think the earlier period can displace the later one, but the ERDL and SRM would be at risk down to March, in theory if the Jan decision is appealed.  This is on the assumption that the nature of the January decision is a refusal to supersede from that date, as opposed to a refusal to revise older decisions. Could be both I guess, but only refusal to supersede from Jan is appealable.

     
Elliot Kent
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I feel like some dates are getting confused somewhere because the narrative as presented doesn’t really make sense.

The claimant was presumably awarded PIP at ER/SR from a date. I am guessing that 7th January 2019 is actually the date on which the award was superseded and terminated on the review and there has then been the unsuccessful MR of that decision which came in in March. Then the LEAP exercise decision has come in and refused to make any additional award for the period from the date of claim through to 7th January 2019.

(The LEAP decision wouldn’t have any impact on the 2019 review decision because the DWP assume that their decision makers will have taken MH and RJ into account in decisions made from about mid 2018 onward).

So your client’s regular appeal is going to be about the decision of 7th Jan to stop her PIP and then the prospective second appeal is against the refusal as part of the LEAP exercise to supersede the initial decision so as to include a higher rate of mobility.

I don’t see that any risk attaches to either appeal. The normal appeal either makes an award or confirms the status quo. The LEAP appeal could only either confirm the decision not to supersede the initial decision or supersede it so as to include ERM from either the date of claim or 28/11/16 or 08/03/17.

The only hypothetical in which I can see that your client can directly lose out as a result of appealing the LEAP decision would be if the Tribunal not only confirms the LEAP refusal to supersede but also interposes its own decision terminating PIP from some earlier date. But (a) what possible grounds could it have for such a supersession and (b) I doubt any resulting overpayment could even arguably be recoverable.

Normally, when doing multiple appeals on a single benefit, it makes sense to ask the Tribunal to keep all of the appeals together so they are decided by one panel so as to keep things sensible.

If I were doing that for this case (and assuming that there haven’t been any significant changes throughout), I think I would do it as follows:
1. Invite the Tribunal to consider the normal appeal first.
2. If the Tribunal concludes - as part of the normal appeal - that the claimant is entitled to either no mobility or standard mobility, then dismiss the LEAP appeal as it can’t succeed.
3. If the Tribunal concludes that ERM should have been included, then also consider whether it should also allow the LEAP appeal and supersede to include ERM from the appropriate earlier date.

     
HB Anorak
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Makes sense Elliot. I didn’t know what the key dates in the LEAP project were and took a guess on 7 January, followed by a regular review from March. But actually the key dates are earlier aren’t they:

1. Refusal to supersede from Nov 16 or March 17. Decision made in July this year.
2. Review decision from Jan this year, MR rejected in March.

And OP’s dilemma is whether an appeal against 1. is a free hit or whether it carries a risk of losing benefit for the period down to decision 2. Elliot reckons it’s a free hit and that does seem convincing.

     
JAS1
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Thanks both.

Sorry for the confusing narrative. Might have got myself slightly confused. I didn’t get chance to call PIP with the client so am just going off the two letters he brought in, he couldn’t remember exactly what he has done in terms of MR etc.

I have had a look at the two letters the client brought in again -

Letter (standard looking MR notice) dated 16/03/2019 says (paraphrasing) -

‘‘Thanks for asking us to look at your decision again, at this time I can’t award for daily living/mobility needs from 08/01/2019’‘

Letter dated 17/06/2019 says (paraphrasing) -

‘‘There’s been some changes in PIP law which affect out DWP decides PIP claims.  I’ve looked again at your previous PIP claim and decided your award up to 07 January 2019 (the date your previous PIP award ended) is not affected and is still correct. Total score for daily living/mobility… from 14 September 2016 to 07 January 2019.’‘

So it seems PIP claim ended 7th January 2019 following a review (presume it was a 3 year award), client did MR which got turned down in March, then in June (or thereabouts) DWP did the LEAP review of the case and found no change to the award from 28 November 2018 up to when it ended on 07 January 2019. That sound right?

So, if the client wants to do MR/appeal the LEAP review decision, does it have to be based on the MH case and be specifically in relation to psychological distress when planning and undertaking a journey? As that was the decision that was made by DWP. Or can the client also argue for other factors e.g. physical problems and do a more general MR request on all mobility factors?

      [ Edited: 15 Jul 2019 at 01:49 pm by JAS1 ]
Elliot Kent
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I think the facts you have given are in line with my guess, so they do seem to make sense now.

It is probably best to keep the argument against the LEAP review limited to the impact of the MH and/or RJ decisions. It might be possible to cast the net wider than that - I would have to think about it - but it would certainly make life incredibly complicated to try.

     
Callum Robb
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A word of warning here -

Been assisting a client in a very similar position over past few months. Challenged MH decision - argued he should have historically been entitled to ERM - SRM awarded following MR, appeal now lodged. At the same time has had current PIP award reviewed which is lodged as an appeal with FTT but awaiting date of hearing.

Requesting MR of LEAP decision has proven tremendously difficult. Was repeatedly told by various DWP advisers (including escalation route) that couldn’t request MR of the decision because he was already in receipt of mobility (which he never has been, and despite reminding DWP of this 8 times it didn’t sink in). Was also advised many times that it’s not possible to have MRs of one benefit in place at the time. Have been passed through a rabbit warren of departments in the DWP to try and get the issue resolved, but now sorted. Phew.

So, be prepared for lots of confusion and conflicting advice, but stick with it - it has led to a healthy back date for my client (although ERM still not awarded despite clear entitlement, so both PIP decisions now have appeals lodged).