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PIP supersession
I have a client who was in receipt of PIP at the standard rates for both daily living and mobility. He reported a worsening of his health in Feb 15. Following completion of a new form and a medical assessment, a decision was made on 21.7.15 to reduce this award to standard rate daily living only with no award for mobility. The reduction in award was only applied from 21.7.15, the decision maker stating that the claimant ‘could not have been expected to know that the evidence shows that he is entitled to less benefit’. The client went through a mandatory recon (unsucessful) and appeal, which he has now won. The Tribunal have decided that the client is entitled to enhanced rate daily living and mobility from 21.7.15.
My clients dispute is now that he initially notified the change in his health in Feb 2015, so can the award following appeal be backdated to this date?
I am struggling to find any specific guidance on decisions that have been changed following appeal and wondered if anyone had had any similar cases? Guidance in cpag (p1315) states that if a change is reported, even if you could not have reasonably been expected to know that you should have reported the change, the supersession takes place from the date you applied for the supersession, and only if the decision maker decides to do a supersession on her/his own, the date the decision is made. This being the case, I am not sure why the award was only changed from the date of the decision, 21.7.15 not Feb 15, and what this means for the decision now that the Tribunal have changed it. My initial thoughts were that they are stuck with the date of 21.7.15, but had the award made on this date been advantageous to my client in the first place, it appears that it would have taken effect from the date he satisfied the conditions of entitlement to the higher rate (including the required period condition - my client advises that his health originally deteriorated Oct 14) which seems unfair.
Any ideas?
Write to the tribunal asking for a correction of the decision. You’re correct about the date the supersession should take effect from, but it’s unlikely that anyone in the DWP will see sense on the point with the tribunal decision framed as it is currently.
Ok - So my understanding is that if a client phones and asked for a supercession then that is the date that applies (confirming that the time scales have been satisfied) But we have a client that has been given an award PIP ERDL + ERM who was previously on DLA HRM - advised of a change in circs - Decision was made and award increased in July - Notified in Feb - their reason - She was on DLA - can’t get the DLA + PIP at the same time. Am I being thick in thinking that DLA HRM - Overpayment offset against the PIP ERM then pay ERDL?
Any clues?
The relevant date to start from to determine when the higher rate applies from is the date the request for a supersession was received at the DWP not the date of the decision.
The claimant must satisfy the qualifying criteria for the higher rate (of whichever component(s) is at issue) for the ‘required period’ period (Regs 12 & 13) - 3 months before + 9 months after date of the application for supersession.
A tribunal is limited to looking at the claimants circumstances down to the date of the decision (27/7/15). Therefore a tribunal could decide:
The 3 month ‘required period’ was already satisfied at the date of the supersession application and award a higher rate from the date of application.
The three month period was not satisfied until the date of decision and award from that date.
It was satisfied at some date betweeen Feb and 27/7/15 which it must identify and award from that date.
If there has been a gradual deterioration in the claimants condition which of those possibilities applies will depend on the facts. The date at which the claimant actually ‘crossed the line’ may be very difficult to identify in practice unless there was a significant change at or about a specific date . Being pragmatic most tribunals, where there has been gradual deterioration would be most likely to identify the date of application or the date of decision as that at which the 3 month prior ‘required period’ has been satisfied.
So, most probably, the tribunal decided either (a) the ‘required period’ was not satisfied until the date of decision, or, that (b) is was satisfied at the date of application but made an error in the date in the decision notice.
If (a) this may be the appropriate date depending on the facts. If (b) you could request the tribunal amend the decision notice to the correct date in Feb.
If it is unclear which date the tribunal meant request a ststement of reasons for an explanation of why the later, rather than the earlier date was accepted and also request a correction of the decision (make seperate requests so as not to confuse HMCTS admin!).
It is not unknown for a tribunal to make a simple error in the dates or to confuse the relevant date they are dealing with in superseesion requests between the date of application and date of decision. It is always helpful to be clear in written and oral submission to identify at which date you think the ‘required period’ provision was satisfied.
There is no issue of overpayment or offsetting in this senario.
Ok - So my understanding is that if a client phones and asked for a supercession then that is the date that applies (confirming that the time scales have been satisfied) But we have a client that has been given an award PIP ERDL + ERM who was previously on DLA HRM - advised of a change in circs - Decision was made and award increased in July - Notified in Feb - their reason - She was on DLA - can’t get the DLA + PIP at the same time. Am I being thick in thinking that DLA HRM - Overpayment offset against the PIP ERM then pay ERDL?
Any clues?
Sounds like the change of cirs was notified when she was on DLA which would mean the pip would not be backdated.