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Forum Home  →  Discussion  →  Disability benefits  →  Thread

‘Take it or leave it’ offers by the DWP for PIP and ESA

Rachel1
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There is an article in The Guardian today which is DWP accused of offering disabled people ‘take it or leave it’ benefits.

It details how claimants in the middle of waiting for the hearing dates are being called by the DWP in unrecorded calls pressuring them to accept a lower benefit then they could potentially get at appeal.

I’ve only just seen this tonight and coincidentally this has happened to one of my clients today. I advised her of pros and cons of both going ahead and accepting the offer and stated that the decision is ultimately hers. However I was not aware, as the article states, that ‘the DWP said that if someone one accepted an offer the could continue their appeal, and would have any award at a higher rate backdated to ensure they did not miss out’.

Does anyone have a source other than a newspaper for this info? Thank you in advance.

Ianb
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If the claimant accepts a revised award the original appeal lapses but the revised award is a new decision which comes with the usual rights to request an MR and then appeal if so wished.

Also discussed here https://www.rightsnet.org.uk/forums/viewthread/13957/ and here https://www.rightsnet.org.uk/forums/viewthread/15480/

That second thread references this CPAG article https://cpag.org.uk/welfare-rights/resources/article/offer-you-cant-refuse

[ Edited: 2 Mar 2020 at 09:27 pm by Ianb ]
Rachel1
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Ianb - 02 March 2020 09:22 PM

If the claimant accepts a revised award the original appeal lapses but the revised award is a new decision which comes with the usual rights to request an MR and then appeal if so wished.

Also discussed here https://www.rightsnet.org.uk/forums/viewthread/13957/ and here https://www.rightsnet.org.uk/forums/viewthread/15480/

That second thread references this CPAG article https://cpag.org.uk/welfare-rights/resources/article/offer-you-cant-refuse

Thanks so much this is super helpful! I’m still a little unclear what this means practically, so for example, my clients accepts the offer and still wants to appeal that. Does she wait for her decision notice on the revision then go through the same process as before? ie mandatory reconsideration and SSCS1 form again? Thanks so much again I really appreciate it.

Ianb
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Rachel1 - 02 March 2020 09:35 PM

Thanks so much this is super helpful! I’m still a little unclear what this means practically, so for example, my clients accepts the offer and still wants to appeal that. Does she wait for her decision notice on the revision then go through the same process as before? ie mandatory reconsideration and SSCS1 form again? Thanks so much again I really appreciate it.

That’s my understanding. Obviously that extends the time to the ultimate tribunal (if that’s where it ends up) but the client gets an award, or increased award, sooner. In deciding I think a lot depends on how far ahead of a likely tribunal date the ‘offer’ is made and how the original decision, the offer and the desired outcome compare.

The whole idea of ‘offers’ is wrong, the decisions are supposed to reflect the claimants needs.

Stainsby
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There is no need for a second mandatory reconsideration because the” offer”  is a revision of the original decision

I have advised a few clients to accept the offer and then do an SSCS1 That way the client gets an immediate increase in the award while waiting for the appeal hearing

I think the DWP should not be making these offers and would probably stop if there are enough supposedly accepted offers which are subsequently appealed

[ Edited: 3 Mar 2020 at 06:24 pm by Stainsby ]
neilbateman
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The problem is that the post-offer decision letter is the standard one which tells people they have to apply again for an MR, so most people either give up or go back to square one in the disputes process, assuming they have the energy and knowledge to do so.

DWP could simply propose an amendment to the legislation to allow the disputed part of the revised decision to proceed to a hearing, but that would of course be too claimant friendly in the hostile environment that has been created.

I agree that the process of making telephone offers is not acceptable.

Stainsby
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The trouble is that appeals are against decisions, not against determinations that are the building blocks of decisions

Mr Commissioner (now Judge) Jacobs gave a comprehensive explanation of the distinction between determinations and decisions in CIB/2338/2000 and again in the housing benefit context in MF v Redcar and Cleveland Borough Council [2015] UKUT 0634 (AAC).

The DWP may revise a decision at any time when an appeal is pending (Reg 3(4A) Social Security and Child Support (Decisions and Appeals) Regulations), but revising decisions cannot themselves be revised (CP v City of Brighton & Hove (HB) [2013] UKUT 0542 (AAC))  A purported revision in these circumstances is really a further revision of the original decision.

A fresh appeal when the previous appeal lapses due to an advantageous revision does not require an MR because Regulation 3ZA (2) of the Decisions and Appeals Regulations provides that a person has a right of appeal only “where the Secretary of State has considered an application whether to revise the decision under section 9 of the Act”, and it is self-evident that since revising decisions cannot themselves be revised,  “the Secretary of State will have already ” considered an application whether to revise the decision under section 9 of the Act”  if an appeal is lapsed because the appellant accepted an “offer”.

There is therefore no requirement for a further so called mandatory reconsideration.

[ Edited: 3 Mar 2020 at 06:23 pm by Stainsby ]
Ianb
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Thanks, Stainsby. When I posted the back of my brain was telling me an MR might not be necessary - but i couldn’t remember why not!

Daphne
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Justin Tomlinson’s response today -

The Department does not make ‘offers’ to claimants. If at the appeal stage of the decision making process it is decided that a decision can be changed in the claimant’s favour, then in law the Secretary of State has the option to revise the decision and thereby lapse the appeal against that decision. As we always aim to make the right decision as early as possible, then changing the decision to award a higher rate of benefit is the right thing to do. However, we will only do this if the claimant agrees. The telephone call is made to explain the changed circumstance. But, critically, it also the case that, whilst the appeal against the original decision will stop, a new right of appeal is given against the revised decision. This is explained both by the new decision notice and by the letter sent by the Tribunals Service confirming the appeal has stopped. The process does not disadvantage claimants. And, of course, if the second appeal is successful the additional benefit will be backdated and full arrears paid.

Surely if they decide a higher rate of benefit is the right thing to do, then they should send an award letter confirming that with fresh appeal rights. It shouldn’t be ‘only if the claimant agrees’!!!

Peter Turville
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Elliot Kent
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Daphne - 17 March 2020 01:05 PM

Surely if they decide a higher rate of benefit is the right thing to do, then they should send an award letter confirming that with fresh appeal rights. It shouldn’t be ‘only if the claimant agrees’!!!

As I think I’ve said before, the DM is between a rock and a hard place.

They can either unilaterally revise the decision, lapse the appeal and allow the claimant to lodge a new appeal if they are unhappy (if they realise that this is possible), or they can take the view that they should only revise if the claimant has indicated that the proposed revision is acceptable to them.

DWP policy has taken the view that the latter is the better option for a number of years (see ADM A5159 on)

Neither of these is a perfect option - there isn’t a middle ground where the partial award could be put into payment without lapsing the appeal.

Should the DWP be bullying people into accepting less than they might get at a hearing, falsely implying that these are time-limited proposals or failing to make the concessions known to the tribunal? No

Is it inherently unreasonable not to lapse an appeal where the DWP are only prepared to concede a small part of the case and lapsing would just result in a new appeal with the claimant being put to the back of the queue? No

John Birks
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Elliot Kent - 17 March 2020 01:37 PM
Daphne - 17 March 2020 01:05 PM

Surely if they decide a higher rate of benefit is the right thing to do, then they should send an award letter confirming that with fresh appeal rights. It shouldn’t be ‘only if the claimant agrees’!!!

As I think I’ve said before, the DM is between a rock and a hard place.

They can either unilaterally revise the decision, lapse the appeal and allow the claimant to lodge a new appeal if they are unhappy (if they realise that this is possible), or they can take the view that they should only revise if the claimant has indicated that the proposed revision is acceptable to them.

DWP policy has taken the view that the latter is the better option for a number of years (see ADM A5159 on)

Neither of these is a perfect option - there isn’t a middle ground where the partial award could be put into payment without lapsing the appeal.

Should the DWP be bullying people into accepting less than they might get at a hearing, falsely implying that these are time-limited proposals or failing to make the concessions known to the tribunal? No

Is it inherently unreasonable not to lapse an appeal where the DWP are only prepared to concede a small part of the case and lapsing would just result in a new appeal with the claimant being put to the back of the queue? No

He’s right you know.