PIP appeal - health improved before hearing
Recent successful PIP appeal, awarded enhanced daily living for 12 months from the decision under appeal. In the decision notice the tribunal explained why there was a time limited award of EDL (which we agreed with) but made reference to an ongoing entitlement to standard DL including which activities and points would be relevant going forward.
I expected a ‘stepped’ award in this situation but they have instead stated that a new claim should have been made when the change occurred and that a new decision maker is not bound by their decision.
Is this approach right? if not am I better going for set aside or written reasons and appeal to upper tribunal?
Any help much appreciated
I am struggling with the narrative here.
Your client made a claim for PIP - was that refused or was an award made which your client was unhappy with?
Then the FtT are saying there is an SRDL award a year later - is that because your client made a successful second claim?
Or has the FtT created the “stepped” award for itself? If so, what is the change on which this is based and was it known about when the DWP made its first decision on the claim?
Or is it something else and the FtT has effectively recommended a supersession from a particular date?
It might be best if you could just post the decision notice suitably anonymised…[ Edited: 24 Aug 2020 at 04:44 pm by Elliot Kent ]
Thanks for the speedy reply, Elliot
There was no award originally, at claim or MR.
The decision on the date of the appeal was to award EDL for 12 months from the date of claim (the claimant’s condition improved 12 months after the initial claim was made)
There has been no award made at appeal beyond this 12 month period and no new claim has been made (yet).
This is what they said in the decision notice:
‘However, aspects of her health began to improve and the Tribunal found
that from 10/12/19 she no longer satisfied the criteria for an enhanced award
but would have met the criteria for a standard award. The Tribunal would have
reduced the points for preparing food from 4 to 2 and would not have awarded
any points in relation to nutrition.
As this improvement was after the date of the decision the Tribunal could
not then make a standard award as the law does not permit this. However,
this may be of assistance to the decision maker should Miss S*** now make
an application for PIP’
Wow that’s a weird decision.
The Tribunal’s job is to stand in the shoes of the decision maker and in doing so it cannot take account of circumstances not obtaining at the date of that decision - s12(8)(b) SSA. It is difficult to see how the Tribunal has done that if it’s decision on award length is based on a post decision improvement. The Tribunal would need to explain itself by reference to something foreseeable at the date of the decision for it to avoid error. So I think worth requesting an SOR.
But there are two things I would do immediately.
First, your client needs to make a new claim for PIP in order to protect her position.
Second, I would be trying to make contact with the DWP appeals officer before they implement this decision. They have a power to make a new decision interposed between the Tribunal’s decision and the award ending which supersedes the Tribunal’s formal decision on the basis of a change of circumstances (reg 23 D&A) and make a further award of PIP at the lower rate. If the appeals officer knows what they are doing, hopefully they would figure that out. (There is no reason this specifically needs to go to the appeals officer - they are just the person best placed to understand the circumstances).
On tribunals exercising hindsight, I agree with Eliot’s point about “reference to something foreseeable at the date of the decision”.