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PIP award start dates made by First-tier tribunal

Andy King
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Avon and Bristol Law Centre

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We think the DWP and tribunals may not be failing to start awards from the correct dates:

1. AWARDS REVIEWED BY THE SECRETARY OF STATE
In appeals relating to decisions made by the DWP following a review of PIP entitlement that they initiated, the start date for the award is the date on which that review process was commenced, provided the outcome (as determined by the decision maker or by the Tribunal) is advantageous to the claimant.
The Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013 - SCHEDULE 1 para 18:
“Where the superseding decision is advantageous to the claimant and is made on the Secretary of State’s own initiative, the decision takes effect from the date on which the Secretary of State commenced action with a view to supersession.”  We think tribunals invariably follow the “Decision Effective Date” suggested by DWP in their appeal submissions which is the (later) date on which their revision decision (usually disadvantageous to the claimant) was made. Anyone else seen this happening?

2. LEAP REVIEW DECISIONS
The DWP’s LEAP Review process involves a review of all PIP decisions made after two key Upper Tribunal decisions (MH and RJ) which failed to follow the case law established by those judgements.
Decision MH: From 28 November 2016 there was a change to the way the Department for Work and Pensions (’the department’) considers how overwhelming psychological distress affects a claimant’s ability to plan and follow a journey. This decision is known as MH.
Decision RJ: From 9 March 2017 there was a change to the way the department considers if a claimant can complete a PIP activity safely and if supervision is required, by considering both the likelihood of harm occurring, and the severity and nature of the harm that might occur. This decision is known as RJ.

If a Tribunal is considering an appeal about a refusal to supersede a decision in the LEAP review process, the key date is either the date the claim decision was made or the date of the Upper Tribunal (UT) judgment, whichever is later.
Even if a decision was made before the UT judgment, the Tribunal should consider whether to supersede in light of the judgment from the date of that judgment. This is an issue because the DWP have been refusing to supersede decisions made before UT judgments as the judgments did not have effect until after the claim decision. Grounds for supersession arise from an error of law (reg 24 of the UC, PIP, JSA & ESA (Decision and Appeals) Regulations 2013). If the error of law is revealed by a test case the date of the test case decision is the relevant date (reg 35(5)).
See https://www.rightsnet.org.uk/welfare-rights/caselaw/item/effective-dates-for-awards-superseded-as-a-result-of-dwps-review-exercises-following-mh-v-sswp-and-rj-ors-v-sswp-1
And even if the appeal before the tribunal relates to a different decision, we think the tribunal can review the LEAP decision as well, provided an MR request was made within 12 months and an appeal lodged within 13 months of the MR decision. Any thoughts?

BC Welfare Rights
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The Brunswick Centre, Kirklees & Calderdale

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Re. point 1, In LS v Secretary of State for Work and Pensions (CPIP) [2019] UKUT 3 (AAC) Judge Bano said at para 7:

Regulation 26(1) stands apart from the other supersession grounds now
found in the 2013 Regulations and, once the conditions entitling the Secretary of
State to carry out a review under regulation 26 have been satisfied, it is not
necessary to establish a change of circumstances under regulation 23 or any of the
grounds for supersession permitted by regulation 24 of the 2013 Regulations in order
to justify a supersession (although that does not of course relieve tribunals in
regulation 26 cases from the need to give an adequate explanation for their decision
in those cases where they decide to depart from an earlier award). Because the
supersession decision in such cases is not on the ground of a change of
circumstances, the effective date of the decision is not governed by Part 2 of
Schedule 1 to the 2013 Regulations, and under section 10(5) of the Social Security
Act 1998 the ‘effective date’ in regulation 26 cases is therefore always the date of the
supersession decision itself.

Most PIP supersessions that I have seen rely on reg 26 so this argument would appear to be ruled out in the majority of cases ( edit your post says “revision decisions” but I presume you are referring to supersessions?)

[ Edited: 12 Nov 2020 at 04:59 pm by BC Welfare Rights ]
Elliot Kent
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Sorry, its somewhat tricky because you have taken two fairly hefty subjects and put them in the same post.

On the first one, DWP will typically use reg 26 (particularly where reducing the award) because it will be satisfied in every case where a HCP report is completed. The supersession will take effect on the date of the decision. There will be no reason for the claimant to complain about this where entitlement is either reduced or stays the same. Where entitlement is increased, consideration needs to be given to whether there was a change of circumstances enabling a supersession under reg 23. (Your summary omits that Schedule 1 only has any application at all where the ground of supersession used is reg 23).

The Tribunal makes its own decision and also chooses its own ground of supersession and consequently effective date. A not uncommon situation goes like this:
-Claimant has award of PIP at rate X
-PIP is superseded and ended effective from decision date under reg 26
-FtT on appeal decides that the claimant should have been awarded at higher than rate X and awards this from the decision date.

In this situation, the Tribunal will be in error of law if it has not at least considered whether it is possible to identify a change of circumstances to apply reg 23 and therefore the potentially earlier effective date from the Schedule.

If you look at a more recent PIP bundle you will see it should say something to the effect “Any award the Tribunal were to make may therefore require a different effective date to that of the decision under appeal”. Similarly, your submissions should identify when you say an entitlement will arise if the Tribunal agrees with you that a supersession to a higher rate is appropriate.

On the second one, there are lots of permutations of how these cases can present themselves so it is going to depend on the specific situation you are dealing with. In particular, some of these cases depend on revision and others depend on supersession and in some of the cases (e.g. where PIP was flat out refused before the relevant decisions) it isn’t possible to do anything at all.

The guidance to decision makers on how to use the revision and supersession powers in various scenarios is broadly correct
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/718724/adm16-18.pdf

I am not really sure what you mean in your last paragraph. Are you saying that if your client was awarded PIP SRDL on say 12/11/15 and this was removed by a supersession under reg 26 on 12/11/19, in the resulting appeal could you argue that the Tribunal ought to supersede the decision on the basis of an error of law in the failure to reflect RJ effective from 09/03/17?

I don’t think I would say for sure that the Tribunal does not have the power to do that, but it would certainly need to put the DWP on notice and give it a chance to respond substantively if this was being considered as it would be highly unusual. The better approach would probably be either to (a) just wait for the case to be considered by LEAP or (b) make an application for supersession on the basis of RJ and then challenge that if needs be.

Andy King
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Avon and Bristol Law Centre

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Thanks both- that’s a really helpful clarification of the start date in Reg 23 cases - I guess rep’s can therefore argue that the FtT can revise under Reg 23 and the start date would then be the date on which the Sec of State initiated the supersession?

Regarding LEAP review cases, this is a much less common issue. It arises where a PIP award (eg SDL or EDL) has been made, the DWP have conducted a LEAP review and decided that Mob 1b, d and f do not apply (“Decision 1”). Then at a later date but within 12 months, they initiate a supersession under Reg 26 and terminate/reduce the award (“Decision 2”). On appeal, the appellant argues not only that the DL award should be reinstated but that she was also entitled to Mob on mental health grounds. The FtT agree. In this situation, we are seeking to argue that the start date for the Mob award should be 28.11.16, the date of MH. Our argument is that when the appellant requested an MR of Decision 2, this should have been treated as a request for a review of all decisions made within the previous 13 months - and the subsequent appeal should have the same scope. This argument may be based more on hope than sound precedent!