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regulation 26 as grounds to supersede for PIP

Chrissum
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I’ve revisited the various threads about this, but am still struggling to get my head around it. My client was in receipt of EDLC and SRMC which was originally awarded in 2016 for 6 years. In October 2018, it appears she rang PIP to report a deterioration. There is no record of this conversation nor what deterioration was reported but it triggered an unplanned review and following a HCP report in March 2019, her award was reduced to SR DLC and SRMC. An appeal has been duly lodged and, following some fun and games to obtain a bundle (as is usual in these type of cases), the DWP’s submission contained the following:

“On the 13/03/19 a new HP report was received which indicated a different level of needs to those reflected in the previous decision. However as there is no identifiable change of circumstances (or other grounds to revise or supersede), the Decision Maker decided to supersede the previous decision under Regulation 26… which allows the Secretary of State to supersede a decision awarding PIP on the grounds of receipt of medical evidence from a healthcare professional” and further (after citing DS):

“In determining the ground for supersession and the effective date, the DM had the option of seeking to identify a change of circumstances which the claimant should have notified. However, as the evidence didn’t suggest there would be an easily identified change the DM decided not to investigate and instead used the report as grounds for supersession”

To be fair, they have gone on to identify where the two reports differ but they differ in opinion rather than fact, but my understanding is they still have to show sufficient reason for preferring one over the other, as the report in itself is not the change of circumstance but potential evidence of it, particularly as the points have been removed as a result of her not being deemed to have cognitive impairment as a result of her long diagnosed paranoid schizophrenia, one of the major notable things about which is it’s variability. Just to rub this in, the HCP closes with the statement “She is currently having input that could improve her functionality over time. However her conditions have potential to deteriorate which could further effect her functional ability”, indicating that they really don’t know IMHO!

I know what to address primarily in my submission with regards to the evidence and functionality, but it is this concept of not investigating and not being able to identify a change of circumstances that intrigues me. Surely they still need to do that with reg 26? At least that is my understanding of the case law.

Any thoughts, tips and tactics greatly appreciated, particularly on whether the validity of the supersession can be challenged (we have time as the original award is not scheduled to end until October 2022). Many thanks.

Stainsby
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You might want to adapt what is becoming my standard submission in “planned review ” cases

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Elliot Kent
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The effect of reg 26 is to create a legal basis for supersession irrespective of whether there have been any change in circumstances - however reg 26 does not bypass the need for the new decision to be justified on the overall evidence incorporating both the new report, the old report and anything else which exists.

Reasons need to be given for departing from the old decision, if that is what the FtT does, but its reasons do not need to relate to a change in the underlying facts. The FtT could simply find that the old report is wrong and shouldn’t be followed. Or it could find that it has access to so much more evidence and expertise that little weight can be placed on the report. I suspect in many cases, it will find both reports equally unpersuasive. It is not required to assume that the first report and decision were accurate to the situation at the time.

The corollary of the argument in Stainsby’s submission is that the original decision was a good and sensible one from which it would only be appropriate to depart if there were some sort of change in the facts - but if the FtT accepts that, then it seems to me you’ve already won.

Chrissum
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Thanks both. Very useful. It seems to me that if the DWP are unable to easily identify a change from the evidence, including the HCP report they rely on, then that evidence is not necessarily strong enough to support a reduction in award and it is “merely” a question of persuading the tribunal of that.

Elliot Kent
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Chrissum - 11 September 2019 11:51 AM

Thanks both. Very useful. It seems to me that if the DWP are unable to easily identify a change from the evidence, including the HCP report they rely on, then that evidence is not necessarily strong enough to support a reduction in award and it is “merely” a question of persuading the tribunal of that.

This isn’t right because the Tribunal are not obliged to accept that the first report is reliable.

Chrissum
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Elliot Kent - 11 September 2019 12:05 PM
Chrissum - 11 September 2019 11:51 AM

Thanks both. Very useful. It seems to me that if the DWP are unable to easily identify a change from the evidence, including the HCP report they rely on, then that evidence is not necessarily strong enough to support a reduction in award and it is “merely” a question of persuading the tribunal of that.

This isn’t right because the Tribunal are not obliged to accept that the first report is reliable.

I don’t disagree, hence the merely being in inverted commas. The tribunal will use their inquisitorial role to look at all the evidence before reaching their decision, and, in this case, on the face of the evidence it is likely they will re-instate the previous award. However, my point (rather badly made) was as the DWP have effectively admitted they can’t identify grounds for a change of circumstances having considered all the evidence they have in front of them, including both medical reports, it shouldn’t be too difficult to persuade a tribunal likewise and that, therefore, there is no apparent justification for the reduction in the award on the basis of the new report. I’m arguing that the DWP may well have grounds for superseding under reg 26 but in the light of the evidence the subsequent award decision is not justifiable.

Steph F
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Can this work for a supersession in favour of client?
my client was re diagnosed with cancer 02/04/2019, applied for a supersession after having an operation , PIP was only backdated to July as this was when form received. client was obviously upset when diagnosis was given and te treatment was being changed nearly every day due to a gene deficiency which meant couldn’t have radiotherapy.
I am thinking client wasn’t in a fit state and could not be reasonably expected to tell of change earlier.


was on standard daily living which has now been upped to higher rate.

Elliot Kent
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Steph F - 24 September 2019 09:40 AM

Can this work for a supersession in favour of client?
my client was re diagnosed with cancer 02/04/2019, applied for a supersession after having an operation , PIP was only backdated to July as this was when form received. client was obviously upset when diagnosis was given and te treatment was being changed nearly every day due to a gene deficiency which meant couldn’t have radiotherapy.
I am thinking client wasn’t in a fit state and could not be reasonably expected to tell of change earlier.


was on standard daily living which has now been upped to higher rate.

It is possible in these circumstances to supersede on the basis of a change of circumstances under regulation 23 or on the basis of the reg 26 receipt of medical advice ground.

If reg 26 is used, then the supersession takes effect on the date of the decision.

If reg 23 is used, then the date is set by reference to part 2 of Schedule 1 of the D&A regs which would allow an earlier effective date in the circumstances you describe.

DWP seem to just be slapping “reg 26” on everything, but it is open to your client to argue that reg 23 should have been used and the supersession should therefore be effective from either the date on which he reported the change (see para 14) or the date of the change if there were good reasons for not declaring in time (see para 15).

It’s perfectly possible for this to be the basis of an appeal.

Chrissum
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The July date may well also tie in with the 3 month rule i.e. your client needs to have had the level of need for 3 months before an increase in award could be made, so if the change in functional ability occurs in April, they would first satisfy the qualification period in July. Unless of course the form you are talking about is a DS1500…

slaw
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I’ve also been trying to get my head around this in relation to a PIP appeal against a supersession decision following a planned review.

In my case the decision that was superseded was a decision made by a First-tier Tribunal in 2016.  I have read around and have found references to the UT decision MR v SSWP (PIP) [2017].  Am I right in thinking that this decision confirms that regulation 26 cannot be used to supersede a decision of a FTT? Or have more recent decisions altered this approach?  Or have I completely misunderstood?

The submission of SSWP in the appeal papers states that the decision was superseded under regulation 26.  If Reg 26 cannot be used, what are the options for the upcoming FTT regarding this appeal?

Thanks in advance for any assistance

Elliot Kent
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There is no reason why reg 26 can’t be used in these circumstances. Judge Wikeley doesn’t say it can’t be used in MR and in TH he clarifies that reg 26 can be used to supersede a tribunal decision.

slaw
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Thanks for the clarification Elliot.  I’ve also just read another thread on here about this that explains the decisions in more details. I’m a bit clearer now.  Thanks again.