Early PIP migration - challengable at tribunal???

Hello all,

I’m going to try and do my own research on this but am really up against it for time and so if anybody has an answer quickly off the top of their head I would be super grateful.

Client was on DLA. We are in S. London and so the date that either people with ongoing DLA awards or who reported circumstances began to be migrated over to PIP was in July. Before that date the only people who were supposed to be doing PIP claims were brand new claims and people whose DLA came to an end and who wanted to renew.

Client had an ongoing DLA claim and it appears that either he tried to make a new claim for PIP or reported a change of circumstance. Either way a claim for PIP was processed, client was assessed, turned down and told that this meant that his DLA would also stop. PIP refusal was in May. Client has appealed and has a hearing coming up.

Is the decision to migrate the client before he was supposed to move to PIP something that can be disputed at the hearing? I raised the issue in client’s SSCS1 but the DWP ignored it in their response. Or am I stuck just trying to win the PIP appeal?

Thanks!!!

Are ‘self-selectors’ not also amongst the group who were eligible to claim PIP at that time? Your client may have been treated as one of them.

Billy Durrant - 20 October 2015 10:55 AM

Are ‘self-selectors’ not also amongst the group who were eligible to claim PIP at that time? Your client may have been treated as one of them.

I have had one case like this, the gent misread the letter warning him that he would have to claim PIPS at some point in the future as an instruction that he had to claim PIPS right away. We couldn’t get the PIPs claim stopped as he was deemed to have chosen to apply for PIPS

Was the migration process set down in legislation or has it just been at the discretion of the secretary of state? This is what I’m trying to double check - as if it is all discretionary I don’t think the Tribunal can get involved?

SamW - 20 October 2015 01:36 PM

Was the migration process set down in legislation or has it just been at the discretion of the secretary of state? This is what I’m trying to double check - as if it is all discretionary I don’t think the Tribunal can get involved?

No it’s in the PIP(Transitional Provisions) Regs 2013 at pp 747 et seq of vol 1 of the legislation.

I think the Tribunal can get involved. I have discussed it with our local DTJ and he seemed to agree although in that case the DLA claim would have expired before it came to an appealable decision anyway so it was moot.

edit. linky http://www.legislation.gov.uk/uksi/2013/387/contents

You need the Personal Independence Payment (Transitional Provisions) Regulations 2013

Invitations to persons entitled to disability living allowance to claim personal independence payment

3.—(1) At any time after 6th October 2013, the Secretary of State may by written notification invite a DLA entitled person to make a claim for personal independence payment.

This appears to be a pretty broad and open-ended power for DWP to invite anyone who receives DLA to be invited to make a claim for PIP, with everything else flowing from that power insofar as once the process starts, it doesn’t seem possible to stop it without losing the DLA claim ultimately.

However, reg 3(5) deals with DLA entitled persons notifying a change of circumstances to be invited under reg.3(1). The application of this is limited by reg. 3(5A) which only allows reg.3(5) to operate if the DLA entitled person lives in an area where the Secretary of State has specified a relevant date, and the notification of the change is made on or after that date.

(5A) Paragraph (5) does not apply unless—

(b)that person notifies the Secretary of State of the change of circumstances on or after that relevant date

You can find the amendment regs here The Personal Independence Payment (Transitional Provisions) (Amendment) (No. 2) Regulations 2013

So if your client notified a change in circumstances before a relevant date had been specified, then arguably reg.3(5A) should have operated so as to prevent a PIP claim being invited.

Then we turn to reg. 4, as amended, which deals with Claims by persons entitled to disability living allowance for personal independence payment other than by invitation

(a) they were aged under 65 on 8th April 2013,
(b) the Secretary of State has specified a relevant date which applies in their case, and
(c) they make the claim on or after that date.

This would clearly seem to hold that your client should not have been able to make a new claim for PIP due to not having a relevant date specified again.

Paul you are an absolute star! Much appreciated! Hopefully at some point I can return the favour 😊

Thanks to all others as well of course!

S

Paul_Treloar_CPAG - 20 October 2015 02:38 PM

So if your client notified a change in circumstances before a relevant date had been specified, then arguably reg.3(5A) should have operated so as to prevent a PIP claim being invited.

I don’t think there’s any “arguably” about it Paul: it just should have prevented it.  The issuing of the invitation would be a breach of the DLA-Pip conversion procedure.  However, as we know, a three Judge panel of the UT has previously held, albeit in the context of IB to ESA conversion, that such a procedural breach isn’t sufficient to nullify the conversion decision.  The present circs are arguably similar.  After all, the fact the claimant has made a claim in response to the improper invitation doesn’t appear to stop him falling within the definition of “notified person”.  I think DWP would probably revise a decision where there’s been such a breach and, if it didn’t, a FtT would probably allow the appeal.  In either case, the DLA should be re-instated as there’d no longer be a Pip decision getting in the way.  However, if the DWP decided to take such a case to the UT it’d be interesting to see what happened.  After all, had the client not notified the change of circs, the DWP could have invited him to claim Pip under Reg 3(1) at any time after 27/10/13 even if that meant it was before the “relevant date” for the area in which he lived. 

Paul_Treloar_CPAG - 20 October 2015 02:38 PM

..Then we turn to reg. 4, as amended, which deals with <i>Claims by persons entitled to disability living allowance for personal independence payment other than by invitation...
...This would clearly seem to hold that client should not have been able to make a new claim for PIP due to not having a relevant date specified again.

Agree completely with that.  Reg 4 provides that there’s in effect no legal basis for the claim so any resulting conversion decision is almost certainly not legal and void.  Unlike the situation above it would not be possible to fit the client within the definition of “voluntary transfer claimant” and, it follows, “transfer claimant” in spite of the breach.  However, there’s potentially a jurisdiction issue for the tribunal that being the case.  Illegal decision = no jurisdiction?  There is that three Judge panel judgment whose reference escapes me which I recall was about an interlocutory decision made by a single judge for which there was no legal power.  The UT held that the FtT tribunal nevertheless had jurisdiction to consider that decision (I’d need to read that case again to be sure).  Although the context was obviously very different, that judgment might help here in suggesting that the FtT would have jurisdiction to declare the Pip conversion decision void for a clear breach of Reg 4.  Again, however, I think the DWP would almost certainly revise without much argument once the procedural impropriety is pointed out without it ever going to tribunal.

Fingers crossed Tom that they see sense, but we shall see.