regulation 26 as grounds to supersede for PIP
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.