New claim while waiting for PIP appeal hearing - no decision yet
Client migrates from DLA to PIP, scores 2 points for DL, we assist to appeal. We are waiting for the appeal and now have a date. In the meantime the client, not advised by us, has put in a brand new PIP claim and sent back the PIP2 last week - we only became aware of the new claim as we received a letter chasing the return of the PIP2.
ADM Chapter A5 says that:
‘A5013 Where a further claim is made and has been determined, the FtT cannot consider any period after the effective date of the decision on that claim. The FtT should always be informed in a further response where a further claim is decided before the hearing.’
This would make whatever award the FTT make at our appeal outcome for a closed period, if a decision is made on the new claim before then. However the appeal is in 3 1/2 weeks and the new claim is certainly not going to be determined before then.
So is there still a risk that any award made at the FTT appeal will be for a closed period ending with the date of the new claim? I’m scratching my head about this one.
UC, PIP etc. C&P Regs 2013 say at Reg 31. that you can withdraw a claim for benefit at any time in writing before a decision is made, so would it be a strategy to withdraw the new PIP claim before, or after the appeal?
Could withdrawing the new claim result in a PIP disallowance decision which again makes any award the FTT makes for a closed period ending with the date of the disallowance on the new claim?
Thoughts gratefully appreciated.
One option is to request postponement of the appeal hearing until there is a decision on the new claim. If decision/subsequent MR is negative you can then ask for the appeals to be heard together.
I do realize that this drags things out however. I think I’d be tempted to let things run their course with the appeal and the new claim (especially if there has been any deterioration/increase in needs since the original decision) and if the appeal is successful (and the new claim fails) you’ll have excellent grounds for the decision (hopefully) being revised at the MR stage. If the appeal fails client has second bite of the cherry.
If the 2nd claim is still in the air, it will be irrelevant as far as the FTT is concerned. However if the FTT decides the case and then a new medical is held, it may be that the decision of the 2nd medical supersedes the FTT decision. This is, I think, what the DWP means when it refers to a “closed period” - any decision made by the FTT would be superseded by a subsequent medical.
There are a number of options which all have their risks.
*You could ask the Tribunal to wait and see what happens with the 2nd claim. Adds to time and risks weakening your case if there is a 2nd unfavourable medical report/ your client’s recollection of her circumstances gets worse.
*You could withdraw the 2nd claim and put everything in the FTT basket. Risk is that if the appeal fails, then the 2nd claim isn’t there for a second go.
*You could wait for the FTT decision and then decide whether to withdraw the claim. Risk is that a DWP decision might come out more quickly than you hoped, also the risk that your client will wander off after winning the case and forget to withdraw the claim (worth bearing in mind).
A colleague told me that she had one case where the claimant had won at appeal only to have her 2nd claim (which she had forgotten about) decided a month or so later. The 2nd claim superseded the appeal decision and she lost out on the 3 year award the tribunal had made. A complaint was made and apparently things were put right, although I would not be sure the same thing would happen in every case.
Thanks for your replies.
Decided to wait for FTT appeal, as the PIP2 had only just been sent in, and there was good evidence for both mobility and daily living.
(PIP assessor’s note was that she walked into the assessment carrying her white signal cane but not using it - so, a fashion accessory, obviously! and was scored 0 points for Mobility and 2 for DL).
The appeal was heard today - result: 14 points - Enhanced DL/12 points - Enhanced Mob.
We will now withdraw the new claim.
Glad to hear - good result.