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Forum Home  →  Discussion  →  Disability benefits  →  Thread

FTT appeal PIP review date? 

EKS_COTTON
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Tax and Welfare Rights Officer, Equity

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Hello all,

I have two clients who have seriously disabling long term conditions.  They are both in their mid 50s and their conditions are not going to improve; their mobility and daily living needs are intimately linked to their conditions and so not likely to improve either.

One has been receiving higher rates DLA for decades and recently transferred to PIP.  Has been put on the enhanced rates but with review in 2022.  He was only put on enhanced rates after an any time review request (i.e. put on lower rates initially and decision upheld on mandatory reconsideration).

The other applied for PIP in 2016.  He was awarded enhanced rates on appeal.  He was recently reviewed and awarded nothing.  On MR he has been put on enhanced rates but with review in 2022.

Both clients have been through hell having to justify themselves over and over again.  They are still in time to appeal both decisions.  Even though the awards give them the higher rates, I was thinking it might be a good idea to appeal a PIP award letter on the basis of the review date being unreasonable/inappropriate based on the facts of the case? 

I know there is the risk that the decision could be changed not in their favour however I am pretty confident in their entitlements and these continual re-assessments are having a really negative effect on them - one has contemplated suicide.

On the other hand,  regulation 11 of the PIP regs effectively prevent an appeal on this basis?

Re-determination of ability to carry out activities

11.  Where it has been determined that C has limited ability or severely limited ability to carry out either or both daily living activities or mobility activities, the Secretary of State may, for any reason and at any time, determine afresh in accordance with regulation 4 whether C continues to have such limited ability or severely limited ability.

What are other people doing?  I wonder also whether the same thing can be done for ESA.

[ Edited: 23 Jul 2019 at 10:17 am by EKS_COTTON ]
Mike Hughes
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Well this is a useful decision for starters.

https://www.rightsnet.org.uk/welfare-rights/caselaw/item/whether-pip-appeal-can-be-pursued-where-sole-issue-of-challenge-is-question

I currently have one on the go which is exactly this. The award level is correct. The award length is a nonsense. We have done an MR and are now at the appeal stage.

FWIW, and I may be alone in this but it has literally failed just in the one case above over a 6 year period, I routinely use the Extra Information section at the end of PIP forms for, amongst other things, requesting a 10 year award. I explain why and ask that if the DM is minded to award for less than that then they explain why and identify the medical or other evidence which would support a shorter award. They never can and I have just the 1 failure in 6 years. Suffice to say that whilst we are proceeding to appeal DWP are doing so having conspicuously failed to identify said evidence. A fun day out for all awaits.

Elliot Kent
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As per Mike, you can definitely run an appeal on award length should you wish.

The significance of reg 11 is that - regardless of the award length - the DWP can run along and re-assess a claim whenever they please.

So for example, if you were successful in your appeal and changed the end date from 2022 to 2027, then in the course of things you would expect a planned review in 2026; but there would be absolutely nothing to stop the DWP deciding to review the case in 2020 if they wanted to “for any reason”

However, you can turn this on its head and use it as an argument for making a longer term award. As per Judge Mitchell in RS v SSWP (PIP) [2016] UKUT 85 (AAC)

66. The relative ease with which the Secretary of State is able to re-open the question of an individual’s entitlement to PIP is a factor tending to favour indefinite awards in cases where a person’s limiting conditions are unlikely to change.

Elliot Kent
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Oh and just on this:

EKS_COTTON - 22 July 2019 05:33 PM

I wonder also whether the same thing can be done for ESA.

The difference is that ESA is always awarded indefinitely and the length of the award is not a part of the decision, so can’t be the basis of appeal. PIP is usually awarded for a fixed term so the duration is part of the decision and can be appealed.

EKS_COTTON
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Many thanks Eliot and Mike.  Will let you know how it goes.

Mike Hughes
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As things stand there’s no way of predicting which of us will get heard first so yes please do let us know how you get on and I will try and remember to do the same.