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PIP claim turned down due to not returning PIP2 form
Hi
Just looking for a bit of advice/guidance as I’ve never needed to deal with a situation like this.
Our client has had his PIP claim turned down due to not returning his PIP2 form i.e. has had a negative determination.
I spoke with the DWP on Monday who stated that it was closed and he would need to put in a new claim. Client didn’t want to do this and asked us to help him appeal his decision which we are doing.
I know that he can appeal the decision (says quite clearly on the letter) so I’ve filled out an MR form with the reasons for not filling in the form and also completed the PIP2 form he already has.
Couple of questions:
1. If the “good reasons” are accepted will the DWP continue with the MR process using the completed PIP2 form but without a health assessment?
2. If the DWP turn down the MR and we decide to appeal against the decision, will the appeal be solely about his reasons for not returning the form or will it be reasons + discussion of points he is entitled to?
I’m more concerned with the second question because after looking at the DWP guidance, I honestly don’t think they’ll accept his reasons.
Thanks
Adam
The appeal will just be about whether he had good cause so it would be a good idea to submit a new claim alongside to protect your client in case appeal isn’t successful.
If this claimant is found not to have “good reason” for not returning the form and is unable to displace that conclusion, then that is the end of the road for the claim.
The position is more complicated if it gets to appeal and the Tribunal accepts that your client had good reason.
The decision which your client is challenging is that he does not qualify for PIP. The reason for that decision is that he did not send a PIP2 back. But in appealing, your client is challenging the decision - not the reason - and it is open to the Tribunal to make any decision which could have been made which includes a decision to award PIP.
This means that the Tribunal can - if it is appropriate to do so - find that your client had a good reason for non-attendance and then go on to consider whether he in fact substantively qualifies for PIP. Or, instead, it could find that your client has good reason for non-attendance, set the decision aside and then remit the rest for the DWP to decide. It will depend on what the circumstances require. The case on that is AI v SSWP (PIP) [2019] UKUT 103 (AAC).
It is, as Daphne points out, a good idea to make a new claim along with any appeal. This is because (1) its your client’s only chance to get PIP if they can’t persuade the DWP/Tribunal of good reason and (2) if the new claim results in PIP entitlement, it should be straightforward enough to say to the Tribunal on appeal that if they accept good reason, they should make the same award for the “closed period” as your client has now been awarded on the new claim.
*It is also worth noting that the DWP letters inviting claimants to attend medicals for both PIP and ESA have been found to be ineffective in creating a legal obligation to attend - see IR v SSWP (PIP) [2019] UKUT 374 (AAC). I don’t know what the current letter requiring you to return the PIP2 form says, but if it similarly fails to use “the language of clear and unambiguous mandatory requirement”, then the decision will be vulnerable to appeal whatever your client’s reasons for non-attendance. If there was no legal obligation to attend, then the failure to attend has no consequences. ADM Memo 23/20 tells us that the problem is now fixed but that is of course just their opinion.
Thank you both - both replies have been extremely useful.
This may sound like a stupid question but I was under the impression that you couldn’t make a fresh claim for PIP whilst its going through the MR or FTT stage unless the client has a change of circumstance and/or their condition gets significantly worse. Is this correct or can you put in a fresh claim whilst having an on-going appeal.
Thanks
Adam
You can make a new claim whenever you like. There often isn’t much point if the facts are the same.
I think the landscape has changed on this somewhat since DWP have moved to having some claims where there is no requirement to complete a PIP 2 and linked that to vulnerability. Few claimants fail to complete a PIP 2 for reasons somehow wholly unconnected to their health so it can arguably then be about the specifics of why the PIP 2 was not completed and then taking that into a conversation about whether a PIP 2 was in fact therefore the appropriate route. I have already had 1 case where a PIP 2 was not done for health related reasons and the DWP were open to proceeding on the basis of no PIP 2 rather than forcing us down the challenge route. I won’t go into detail on that as the reasoning (and health issues) were complex but it is something to consider.
Thanks for the reply.
This is really helpful
*It is also worth noting that the DWP letters inviting claimants to attend medicals for both PIP and ESA have been found to be ineffective in creating a legal obligation to attend - see IR v SSWP (PIP) [2019] UKUT 374 (AAC). I don’t know what the current letter requiring you to return the PIP2 form says, but if it similarly fails to use “the language of clear and unambiguous mandatory requirement”, then the decision will be vulnerable to appeal whatever your client’s reasons for non-attendance. If there was no legal obligation to attend, then the failure to attend has no consequences. ADM Memo 23/20 tells us that the problem is now fixed but that is of course just their opinion.
The most recent version I have seen (last month) regarding attending a consultation is pretty unambiguous. It says:
“You must attend the consultation. If you fail to attend without good reason, the DWP will end your PIP claim. If you currently get DLA, the DWP will also stop this claim. Please let us know straightaway if you cannot attend your telephone appointment so we can see if we can offer you a different time or date. You can only change your appointment once.”
Edit
The AR1 as of last month says: “Your PIP may stop if we don’t get this form and your supporting information back or you don’t contact us by [date]”
I don’t have a more recent PIP2 to hand but as of November 2020 ithe PIP2 was saying: “If you don’t return this form to us and we don’t hear from you to ask for more time to complete it, we may end your claim to PIP.”
That’s interesting. The phrasing from the appointment letter appears to have been borrowed from para 38 of IR so you would imagine that would suffice. The text you have quoted for the AR1 and PIP2 still seems vulnerable to challenge on the same grounds. “May”.
The AR1/PIP2 wording also suggests, to me at least, that the very act of contacting DWP to ask for an extension is enough. From memory of ringing for an extension there is no set format of words used by the call handler to say what will happen if you go on to miss the extended deadline. So there may be further scope for challenge if you are in that position too…
The wording on the new PIP2 is, I think, unambiguous:
If we invite you to an assessment, you must attend. If you do not attend your assessment and you do not have good reason, your PIP claim will end. If you currently get DLA this will stop.
I think the DLA element of that statement is ambiguous to say the least and is well known for causing issues.