Search rightsnet
Search options

Where

Benefit

Jurisdiction

Jurisdiction

From

to

Forum Home  →  Discussion  →  Disability benefits  →  Thread

DS1500 while appeal pending

 1 2 > 

bensansum
forum member

Age UK Bristol I&A Service

Send message

Total Posts: 2

Joined: 10 November 2017

I’ve searched the forum but can’t find this covered, so thanks in advance if anyone can help.

Client has PIP appeal in process for PTSD/trauma related MH issues. Cannot face telephone hearing, so is waiting for a paper hearing to take place.

Client has now recieved a terminal cancer diagnosis, and has been issued with a DS1500.

Should the DWP treat the existing pending-appeal claim as valid and begin payments from the issue date of the DS1500, or does the claimant have to go through the telephone process to register a fresh claim?

Ianb
forum member

Macmillan benefits team, Citizens Advice Bristol

Send message

Total Posts: 901

Joined: 24 November 2017

Do they have anything in payment at the moment or is the appeal against an outright refusal?

If there is something in payment then clearly that award is capable of being amended.

If nothing is in payment I don’t know the legally correct position but would be inclined to ring the PIP claim line, select Special Rules option and give them client’s details. They will be able to tell you if the claim shows as live or not and you can then respond appropriately.

[ Edited: 1 Apr 2021 at 05:49 pm by Ianb ]
bensansum
forum member

Age UK Bristol I&A Service

Send message

Total Posts: 2

Joined: 10 November 2017

Thanks Ian - it’s a case that is likely to be a ‘zero points at medical, 30+ after Tribunal’ one, so there currently isn’t anything in payment. I’ll register a fresh claim on her behalf on Tuesday to protect the position. Thanks for your reply.

Ianb
forum member

Macmillan benefits team, Citizens Advice Bristol

Send message

Total Posts: 901

Joined: 24 November 2017

That seems to be the pragmatic thing to do - what you primarily want is a quick decision by whatever means is easiest.

Given that the DS1500 should result in the maximum award there is no downside to creating a closed period for the appeal other than that the award will be limited to three years whereas the appeal decision might otherwise be for longer. However the three year limit is, by definition, not usually an issue in these circumstances.

I would still check, when you ring, whether they can accept the DS1500 as a change of circumstances not requiring a new claim. If you make sure you go through to the Special Rules team they are usually helpful.

I am sure that others may clarify the legal position in due course and may give you a different steer.

Elliot Kent
forum member

Shelter

Send message

Total Posts: 2547

Joined: 14 July 2014

If you have an award of PIP, you can request a supersession of your award on the basis of a change in circumstances.

If you don’t have an award of PIP, supersession isn’t possible and you have to make a new claim instead.

As this claimant doesn’t have an award of PIP at this point in time, they would have to make a new special rules claim. It doesn’t make any difference that there is an appeal underway.

Ianb
forum member

Macmillan benefits team, Citizens Advice Bristol

Send message

Total Posts: 901

Joined: 24 November 2017

Thanks, Elliott. That was my instinct. Glad to have it confirmed.

From the other side
forum member

CRU/CARF-FIFE

Send message

Total Posts: 141

Joined: 22 April 2014

If you don’t have an award of PIP, supersession isn’t possible and you have to make a new claim instead.

Sorry to jump in here but just slightly off the topic, original claim is at appeal (nil award) but then cancer diagnosis (not DS1500) whilst awaiting appeal and new claim entered as there is no current claim in payment. Appeal then heard before 2nd claim decided and SR DL awarded. I know that the 1st claim is a closed period up to date of new claim but why can’t the 2nd claim at this stage not then be turned into a supersession request to allow the first claim to continue in payment until 2nd claim is decided because otherwise client is penalised financially due to the poor decision making process of DWP in first instance?

Elliot Kent
forum member

Shelter

Send message

Total Posts: 2547

Joined: 14 July 2014

Yes, in a situation where a claim is made and refused but this is overturned on appeal and the claimant has reclaimed in the meantime, it would be possible for the decision on the first claim to be superseded. So there would be a Tribunal decision on claim one, a DWP decision on claim two and then the superseding decision would sit in the middle of the two. I doubt DWP would do this on their own initiative but it could legitimately be requested in a suitable case.

The specific situation you put forward of the tribunal decision being made between the special rules claim being made and decided so that the new claim can be treated as a request for supersession of the tribunal’s decision is probably unlikely in practice because of the relative speed in resolving special rules claims but I don’t see why it wouldn’t work in principle.

CA Adviser
forum member

Citizens Advice Calderdale, West Yorkshire

Send message

Total Posts: 119

Joined: 27 September 2011

Hello, reopening an old thread.
Cl has been refused PIP and is appealing. She had various conditions at the time of claim, the symptoms of which, in retrospect, seem likely to have been due to her having cancer (not yet diagnosed) at the time. She now has a stage 4 bowel cancer diagnosis (not special rules). The descriptors she identified at the time of the original claim are unchanged now, so is there any point in a new claim? It would appear that her diagnosis now explains her original symptoms so can argue this at appeal. I would be grateful for any thoughts. PIP has advised her not to make a new claim.

Elliot Kent
forum member

Shelter

Send message

Total Posts: 2547

Joined: 14 July 2014

(Edited response - I had assumed from the title of the thread “DS1500 while appeal pending” that your client has a DS1500. However I now see that is not correct.)

If your client’s actual symptoms and the applicable descriptors have not changed from the initial claim, and a DS1500 has not been issued, then there isn’t really any reason to make a new claim. The diagnosis is just evidence explaining the circumstances as they were at the date of the decision (see R(DLA) 2 and 3/01).

If a DS1500 is issued or the situation substantially changes, then yes a new claim may be required.

[ Edited: 23 Jun 2022 at 10:31 am by Elliot Kent ]
CA Adviser
forum member

Citizens Advice Calderdale, West Yorkshire

Send message

Total Posts: 119

Joined: 27 September 2011

It is not a terminal diagnosis, so not special rules.

Elliot Kent
forum member

Shelter

Send message

Total Posts: 2547

Joined: 14 July 2014

CA Adviser - 23 June 2022 10:31 AM

It is not a terminal diagnosis, so not special rules.

Yes I saw that immediately after posting and my edit has crossed with your post.

CA Adviser
forum member

Citizens Advice Calderdale, West Yorkshire

Send message

Total Posts: 119

Joined: 27 September 2011

Thanks Elliot, that was my view too.

CA Adviser
forum member

Citizens Advice Calderdale, West Yorkshire

Send message

Total Posts: 119

Joined: 27 September 2011

I’ve just had an appointment with the client.

When CA completed her initial claim form, she identified descriptors which would have entitled her to the enhanced rate of DL component, if awarded. So now, obviously, the descriptors selected still indicate the enhanced rate of DL but not a significantly higher number of points. So it would appear there is no reason to make a new claim. But, I think perhaps the descriptors indicated at the initial form-filling were optimistic, whereas it would seem to me now more likely that she would actually score the points identified. So I wonder if making a new claim, as well as appealing, would be a faster way to get an award in payment.

I would appreciate any thoughts.

CA Adviser
forum member

Citizens Advice Calderdale, West Yorkshire

Send message

Total Posts: 119

Joined: 27 September 2011

I would be very glad if anyone could reply to my latest post.

Va1der
forum member

Welfare Rights Officer with SWAMP Glasgow

Send message

Total Posts: 469

Joined: 7 May 2019

Some similarity to a case I recently discussed here: https://www.rightsnet.org.uk/forums/viewthread/18338/ (Namely about a potential issue of what you’re proposing.)

In the end, and after also discussing it with CPAG, I advised my client to withdraw the new claim. I’m still waiting to see how that goes - hoping DWP will apply supersession from the date of new claim.

One option we (mostly CPAG) came up with for such future cases was requesting a supersession now - which DWP can’t act on until the appeal is allowed, but hopefully would allow you to argue that that was the date of supersession request etc. Worst case you have a less messy outcome than I did.

Alternatively, if you think the new claim will be decided before the appeal is heard, you could do that, and let the appeal decision run for a closed period.