Personal Independence Payment (PIP): reconsiderations and appeals

Transcription

1 Personal Independence Payment (PIP): reconsiderations and appeals December 2014 This factsheet is for anyone who wishes to appeal a decision that s been made regarding their application for PIP. Contents If you do not agree with the decision 2 Mandatory reconsideration 2 Making an appeal 3 Preparing your case for a reconsideration or appeal 4 Help preparing your case 5 Gathering medical and other evidence 7 Attending the hearing 8 What to do if your appeal is not successful 10 Useful contacts 10 Appendix I: activities and descriptors 11 Appendix II: DWP definitions for activities and descriptors 17 1

2 If you do not agree with the decision If you have not been awarded any PIP, or been awarded the benefit but at a lower rate than you think you should get, you have the right to challenge this decision. If you have not been awarded PIP at all, in addition to the decision letter you will also get a phone call from the Department for Work and Pensions (DWP) to explain the reasons for the decision. If you have not been awarded any PIP you have nothing to lose in financial terms by appealing. If you have been awarded a lower rate than you had hoped for, appealing could have a slight risk attached to it as a new case manager (the case manager is the person employed by the DWP to make a decision on your claim) or Her Majesty's Courts & Tribunals Service (with whom you lodge an appeal) may reduce or stop your award. This is unlikely and only happens occasionally, but you do need to be sure that you think you clearly meet the criteria for the award of PIP that you have been granted and that you have a good chance of getting a better award. If you do wish to get the decision looked at again you will need to ask the DWP for a mandatory reconsideration first (see below). You must do this before appealing. You have a calendar month from the date of your decision letter in which to do this. Mandatory reconsideration When submitting this you will need to explain why you disagree with the decision and ideally provide some more evidence to support your argument. You will probably not be able to go into great detail at this point, as you may not have been sent the medical report yet and will not have seen all the papers relating to the decision. You need to request the medical report and any other reports that were used when making the decision as soon as you can. If you intend to send in further evidence after you have submitted the reconsideration request, make sure you explain that you intend to do this. The DWP says in its PIP disputes process factsheet: The claimant will be asked to be specific about the points at issue or descriptors they are unhappy with and will be encouraged to send in any further evidence or information they may have to DWP at this point. The full factsheet is available at disputes-process.pdf It is important to stick to the one month deadline for asking for the reconsideration but you will be able to send in further information after this date. A different case manager will look at all the evidence again to see if they can change the decision. If they do not change the decision you will receive another letter (the 2

3 mandatory reconsideration notice) and will then have one calendar month within which to appeal to the tribunal service. Making an appeal If the mandatory reconsideration is not successful you can then go to the appeal stage. You will need to appeal directly to the tribunal service and you have another month in which to do this from the date of the new decision letter. You will need to enclose a copy of the mandatory reconsideration notice with the appeal. When the tribunal service receives your appeal they will write to the DWP for their response. The DWP is meant to respond to this within 28 days. The appeal needs to be in writing and there is a form (called Notice of appeal against a decision of the Department for Work and Pensions SSCS1 ) to use to make your appeal on. You can download this form at 3

4 Preparing your case for a reconsideration or appeal When preparing your case you will need to look closely at the descriptors (see Appendix I on p 10) to work out which ones you think apply to you. This will form the basis of your case. The form asks you questions about 12 activities: 1 Preparing food 2 Eating and drinking 3 Managing treatments 4 Washing and bathing 5 Managing toilet needs 6 Dressing and undressing 7 Communicating 8 Reading 9 Mixing with other people 10 Making decisions about money 11 Going out (used in the test for the mobility component) 12 Moving around (used in the test for the mobility component) We now give an overview of the activities and background on how you should be assessed. You may also wish to look at Action for M.E s factsheet, PIP: filling in the form (you can download this at or call us see useful contacts on p 9 for a paper copy). Each activity has a set of descriptors and points are awarded according to the descriptor that you satisfy. If you can show that a descriptor applies to you for six months within a 12 month period, and this is accepted by the DWP, you should be awarded points for that descriptor. In on page 7 of the PIP handbook, the DWP states: For a descriptor to apply to a claimant, the claimant must be able to reliably complete the activity as described in the descriptor. Reliably means whether they can do so: safely in a manner unlikely to cause harm to themselves or to another person, either during or after completion of the activity; to an acceptable standard; repeatedly as often as is reasonably required; and in a reasonable time period no more than twice as long as the maximum period that a non-disabled person would normally take to complete that activity. There is other useful information about the assessment criteria available in this pack, which is available at The PIP assessment guide for assessors is also a helpful resource. You can see this at 4

5 You may think that you have already given enough information to support an award of PIP, in which case you will need to reiterate this and make any clarifications that you can. If you feel that you have left out information or not explained things in enough detail, it would be a good idea to do this now. If you can think of examples this would be helpful to illustrate your points. If you had a medical you will need to request a copy of the report as early as you can in the process (you could phone and request this as soon as you get the decision letter or ask for it when you are asking for a reconsideration). You will need to go through it very carefully to identify if there are things that you do not agree with in the report. You will also need to ask for copies of any other medical evidence that was used in assessing your claim. For example, the DWP may have contacted your GP in connection with your PIP claim. If you have made a claim for Employment and Support Allowance (ESA) they may have a copy of your Work Capability Assessment (WCA) report. In the Government response to the House of Commons Work and Pensions Select Committee report on ESA (published November 2014) it says that while PIP and ESA are separate benefits designed to meet different purposes, they could do more to share information. It states that they are testing sharing WCA reports with PIP assessment providers to inform their assessments and help us make decisions faster. On the 25 November 2014 the Minister for Disabled People confirmed that this was happening and said that the report from the WCA would be put with a claimants PIP form. They seem to be hoping to make more decisions based on paper and without the need for a face-to-face assessment. It is likely that your PIP assessment report could be used in future ESA claims too. It is therefore even more important to ensure that you request copies of these reports and write to the DWP to correct any inaccuracies. Help preparing your case If you can it would be helpful to find a representative who can help you prepare your case. This would usually be a welfare rights worker. Unfortunately it can be a challenge to find this help, but please look at the useful contacts (p 9) for some ideas of where you may be able to find support with your appeal. If you are not able to find a representative it is still worth appealing but it does mean you will have to do the work yourself. Perhaps there is a friend, family member or carer who could help you? 5

6 Going through the paperwork You will get sent a lot of paperwork about your appeal and will need to go through this carefully. If you have a representative they will also need to see this paperwork. You will be sent this by the tribunal service once you have lodged your appeal and the DWP has responded explaining its decision. -- You need to look through the documents to see if there are any statements that you disagree with contained in the evidence. There may be factual mistakes, or the healthcare professional or case manager may have made statements concerning your capabilities that you disagree with, based on their own opinions of what you can do. It may take a long time to get a date for the hearing and the tribunal will be assessing you at the time the original decision was made. So if your condition changes while you are appealing you need to bear in mind that they will ask you questions about how you were at the time of the of the decision. So, if your condition deteriorates significantly whilst you are waiting for a hearing, you need to consider whether you need to put in a new claim to reflect this, particularly if you feel that there is a greater chance of you now meeting the criteria or at a higher rate. 6

7 Gathering medical and other evidence It is important that you try to obtain supportive evidence yourself. Hopefully your own GP will be prepared to help with this by writing a letter or report. It is probably best to seek this once you have seen the medical report as you may want to ask your GP to comment on specific issues. You may also have a consultant or specialist who can help. If you are seeing anyone else in connection with your M.E., such as a complementary therapist or physiotherapist for example, you could see if they would be willing to write a letter of support. If you have a representative from an organisation supporting you they may be able to request the medical reports you need on your behalf. This obviously takes the pressure off you. Friends, carers or relatives can also provide written statements that may give useful information about how you are affected. The evidence that you get needs to be relevant to your claim so ask people to specifically refer to information relating to PIP. Ask them to comment on the activities that you have difficulty managing that are covered by the PIP activities. You can either write to or talk to the people that you would like to get evidence from. If you write, Her Majesty's Courts & Tribunals Service may ask to see copies of any letters that you have sent. You could also keep a diary, just for a representative time period: maybe a week or a fortnight, and it doesn t need to be very detailed. Use it to record things about your mobility and daily living needs: for example, if you didn t go out, or were not able to cook dress or wash, because you felt too unwell, make a note of this. You need to try to get your medical evidence sent in before the hearing. If you do have late evidence it is still worth submitting it or even taking it on the day but the tribunal may not accept it. 7

8 Attending the hearing You do have a better chance of success at tribunal if you attend so we would advise you to go if you possibly can. If you are not able to go, we would suggest that you write explaining why and also state your case (ie. the reasons you are appealing) in writing. In some cases tribunals can be held in your home: this is called a domiciliary hearing. If you request a domiciliary hearing you will usually need to include a letter from your GP stating that you are unable to travel at all, even by taxi. You may have to wait longer for a hearing if you ask for a domiciliary hearing. At the hearing You can take someone with you, for example a partner, friend or carer. It would be useful for them to have an overview of your case and the grounds of your appeal. They could also take notes for you throughout the hearing and if you have forgotten to say something they may be able to prompt you by saying something like: Do you think the tribunal would find it useful if you told them about what happened when you At the hearing you will usually be greeted by the clerk to the tribunal. The clerk may be in the room whilst your appeal is being heard but they are there in an administrative function and are not a part of the decision making process. The actual panel is composed of the judge (who is legally qualified); someone who has experience of disability; and a doctor. Sometimes a presenting officer will also be there; they are from the DWP and are there to explain why the original decision was made. Tribunals vary in the way that they are conducted but generally, even if you have a representative, it will be you that the tribunal will want to question directly. In addition to questioning you, the tribunal will also observe you and are likely to ask you questions about how you got to the hearing It would also be a good idea to tell the tribunal panel what kind of a day you are having. In order to be able to attend you may have rested for several days before the hearing. You may wish to tell the panel about how you will be affected after the hearing. It is a good idea to take a list of all the points you wish to raise so you can make sure you have covered everything. If you are feeling very unwell on the day you may not be able to express yourself as well as you would like to. In this case you may wish to explain that you may have problems with concentration and may be too exhausted and unwell to answer fully. If you feel like this, having a representative or someone else with you can be very helpful as they will hopefully be able to fill in the gaps. 8

9 Your representative will sometimes be able to put your case forward at the beginning of the hearing or may do so at the end. They will also be able to prompt you and ask you questions if they feel that you have omitted information that is important. It is worth talking to your representative about how they usually work at the hearing and what to expect as there are variations in the way representatives work and Judges conduct hearings. Once the panel has collected all the information that they need you will be asked to leave the room whilst they make their decision. Usually you will be called back in and given the decision on the day; sometimes the tribunal will not be able to reach a decision on the day and will write to you informing you of the decision a few days later. What to do if your appeal is not successful If you are not happy with the outcome of the hearing, you have two choices: 1. You can ask for a set aside. The first tier tribunal can set aside a decision when there has been a procedural irregularity. For example, if someone wasn t present at the hearing or a relevant document was not available at the hearing. The tribunal judge can set aside the decision in cases such as these if it they believe that it is just to do so. 2. You can appeal to the upper tribunal. This must be on the grounds that the first tier tribunal made an error of law. Errors of law could include such things as the tribunal failing to apply the law correctly, or the evidence not supporting the decision, or the tribunal failing to give adequate reasons for the decision. The first thing that you need to do is to ask for the statement of reasons (ie. the reasons behind the decision) from the tribunal. If you are given a negative decision on the day of your hearing you can request the statement of reasons from the judge straight away, but always follow this up with a written request. If you do not ask for this on the day, you have one calendar month within which to request this. We would advise you to seek further advice (see useful contacts on the next page) if your appeal is not successful and you wish to consider either of the above options. Make sure that you stick to the strict time limits for asking for a set aside or appealing to the upper tribunal. 9

10 Useful contacts Action for M.E. Information and support for people with M.E. and their carers General enquiries: (Mon-Fri 9am-5pm) Enquiries Welfare Advice and Support Service: (times vary) Online M.E. Centre: Citizens Advice Bureau Offers advice on a range of issues and may complete a benefits check for you Civil Legal Advice Help with some benefit appeals for eligible people Disability Law Service Offers information and advice on a range of issues including welfare rights factsheets. Please note that they no longer offer welfare rights advice. Tel: Disability Information and Advice Line (DIAL) To find your local DIAL office, contact Scope, 6 Market Road, London N7 9PW Tel: Disability Rights UK Factsheets on benefits, tax credits and independent living Law Centres Offer free legal information and advice to people who are unable to afford a lawyer Local councils Some local councils employ welfare rights workers. The council may also have information about other services that offer welfare rights advice in your area. If you have found this factsheet helpful, please consider making a donation to Action for M.E. at or by calling Thank you. 10

11 Appendix I: activities and descriptors The activities, descriptors and points listed below are the legal test as laid out in the Social Security (Personal Independence Payment) Regulations You can see these at The amendment regulations, which make it clear that the descriptors must be satisfied in the ways laid out in the bullet points above on p 4 of this factsheet, are available at In order to qualify for the daily living component (activities 1 to 10 in the table below) of PIP you need to score: at least eight points to be awarded the standard rate at least 12 points to be awarded the enhanced rate. In order to qualify for the mobility component (activities 11 and 12 in the table below) of PIP you need to score: at least eight points to be awarded the standard rate at least 12 points to be awarded the enhanced rate. To get both the daily living and mobility component you would need to score at least eight points in both sections (ie. a total of 16 points.) You can only score once in each activity so only the descriptor with the highest points that applies to you will be awarded. Daily living component activities Activity 1. Preparing food a. Can prepare and cook a simple meal unaided 0 points b. Needs to use an aid or appliance to either prepare or cook a simple meal 2 points c. Cannot cook a simple meal using a conventional cooker but is able to do so using a microwave 2 points d. Needs prompting to be able to either prepare or cook a simple meal 2 points e. Needs supervision or assistance to either prepare or cook a simple meal 4 points g. Cannot prepare and cook food 8 points 11

12 Activity 2. Taking nutrition a. Can take nutrition unaided 0 points b. Needs either (i) to use an aid or appliance to be able to take nutrition OR (ii) supervision to be able to take nutrition OR (iii) assistance to be able to cut up food 2 points c. Needs a therapeutic source to be able to take nutrition 2 points d. Needs prompting to be able to take nutrition 4 points e. Needs assistance to be able to manage a therapeutic source to take nutrition 6 points f. Cannot convey food and drink to their mouth and needs another person to do so 10 points Activity 3. Managing therapy or monitoring a health condition a. Either: (i) does not receive medication or therapy or need to monitor a health condition OR (ii) can manage medication or therapy or monitor a health condition unaided 0 points b. Needs either: (i) to use an aid or appliance to be able to manage medication OR (ii) supervision, prompting or assistance to be able to manage medication or monitor a health condition 1 point c. Needs supervision, prompting or assistance to be able to manage therapy that takes no more than 3.5 hours a week 2 points d. Needs supervision, prompting or assistance to be able to manage therapy that takes more than 3.5 but no more than 7 hours a week 4 points e. Needs supervision, prompting or assistance to be able to manage therapy that takes more than 7 but no more than 14 hours a week 6 points f. Needs supervision, prompting or assistance to be able to manage therapy that takes more than 14 hours a week 8 points 12

13 Activity 4. Washing and bathing a. Can wash and bathe unaided 0 points b. Needs to use an aid or appliance to be able to wash or bathe 2 points c. Needs supervision or prompting to be able to wash or bathe 2 points d. Needs assistance to be able to wash either their hair or body below the waist 2 points e. Needs assistance to be able to get in or out of a bath or shower 3 points f. Needs assistance to be able to wash their body between the shoulders and waist 4 points g. Cannot wash and bathe at all and needs another person to wash their entire body 8 points Activity 5. Managing toilet needs or incontinence a. Can manage toilet needs or incontinence unaided 0 points b. Needs to use an aid or appliance to manage toilet needs or incontinence 2 points c. Needs supervision or prompting to be able to manage toilet needs 2 points d. Needs assistance to be able to manage toilet needs 4 points e. Needs assistance to be able to manage incontinence of either bladder or bowel 6 points f. Needs assistance to manage incontinence of both bladder and bowel 8 points Activity 6. Dressing and undressing a. Can dress and undress unaided 0 points b. Needs to use an aid or appliance to be able to dress or undress 2 points 13

14 c. Needs either: (i) prompting to be able to dress, undress or determine appropriate circumstances for remaining clothed OR (ii) prompting or assistance to be able to select appropriate clothing 2 points d. Needs assistance to be able to dress or undress their lower body 2 points e. Needs assistance to be able to dress or undress their upper body 4 points f. Cannot dress or undress at all 8 points Activity 7. Communicating verbally a. Can express and understand verbal information unaided 0 points b. Needs to use an aid or appliance to be able to speak or hear 2 points c. Needs communication support to be able to express or understand complex verbal information 4 points d. Needs communication support to be able to express or understand basic verbal information 8 points e. Cannot express or understand verbal information at all even with communication support 12 points Activity 8. Reading and understanding signs, symbols and words. a. Can read and understand basic and complex written information either unaided or using spectacles or contact lenses 0 points b. Needs to use an aid or appliance, other than spectacles or contact lenses, to be able to read or understand either basic or complex written information. 2 points c. Needs prompting to be able to read or understand complex written information 2 points d. Needs prompting to be able to read or understand basic written information 4 points e. Cannot read or understand signs, symbols or words at all 8 points 14

15 Activity 9. Engaging with other people face to face. a. Can engage with other people unaided 0 points b. Needs prompting to be able to engage with other people 2 points c. Needs social support to be able to engage with other people 4 points d. Cannot engage with other people due to such engagement causing either: (i) overwhelming psychological distress to the claimant OR (ii) the claimant to exhibit behaviour which would result in a substantial risk of harm to the claimant or another person 8 points. Activity 10. Making budgeting decisions. a. Can manage complex budgeting decisions unaided 0 points b. Needs prompting or assistance to be able to make complex budgeting decisions 2 points Mobility component activities c. Needs prompting or assistance to be able to make simple budgeting decisions 4 points d. Cannot make any budgeting decisions at all 6 points Activity 11. Planning and following journeys. a. Can plan and follow the route of a journey unaided 0 points b. Needs prompting to be able to undertake any journey to avoid overwhelming psychological distress to the claimant 4 points c. Cannot plan the route of a journey 8 points d. Cannot follow the route of an unfamiliar journey without another person, assistance dog or orientation aid 10 points e. Cannot undertake any journey because it would cause overwhelming psychological distress to the claimant 10 points f. Cannot follow the route of a familiar journey without another person, an assistance dog or an orientation aid 12 points 15

16 Activity 12. Moving around a. Can stand and then move more than 200 metres, either aided or unaided 0 points b. Can stand and then move more than 50 metres but no more than 200 metres, either aided or unaided 4 points c. Can stand and then move unaided more than 20 metres but no more than 50 metres 8 points d. Can stand and then move using an aid or appliance more than 20 metres but no more than 50 metres 10 points e. Can stand and then move more than 1 metre but no more than 20 metres, either aided or unaided 12 points f. Cannot, either aided or unaided: (i) stand OR (ii) move more than 1 metre 12 points 16

17 Appendix II: DWP definitions for activities and descriptors Note: The information below is based on draft regulations (and the explanatory notes). They may be subject to further development and consultation. These are available at aid or appliance A device to improve either a physical or mental function or both. It includes a prosthesis but does not include an aid or appliance ordinarily used by a person without a physical or mental condition which limits that person s ability to carry out daily living or mobility activities assistance Physical intervention by another person bathe To clean one s torso, face, hands and underarms cook To heat food at or above waist height communicate To convey and understand information in the claimant s native language communication support (a) support from a person trained to communicate with people with specific communication needs (b) support from someone experienced in communicating with the claimant; complex financial decisions (a) calculating household and personal budgets (b) managing and paying bills (c) planning future purchases dress and undress To put on and take off socks and slip-on shoes engage socially (a) to interact with others in a contextually and socially appropriate manner (b) to understand body language (c) to establish relationships groom (a) to comb or brush one s hair (b) to wash one s hair (c) to clean one s teeth 17

18 manage incontinence To manage evacuation of the bowel or bladder including using a collecting device or self-catheterisation; manage medication or therapy means take medication or undertake therapy, where a failure to do so is likely to result in a deterioration in the claimant s health; medication Medication prescribed or recommended by a registered doctor, nurse or pharmacist monitor health (a) to detect significant changes in the claimant s health condition (b) to take action advised by a healthcare professional, without which the claimant s health is likely to deteriorate overwhelming psychological distress Distress caused by an enduring mental health condition or an intellectual or cognitive impairment prepare In the context of food, means the activities required to make food ready for cooking or eating prompt To remind or encourage simple financial activities (i) calculating the cost of goods (ii) calculating change required after a purchase simple meal A cooked, one-course meal for one using fresh ingredients social support Support from a person trained or experienced in assisting people to engage in social situations supervision The continuous presence of another person for the purpose of ensuring the safety of the claimant support dog A dog trained to guide or assist a person with a sensory impairment take nutrition (a) to cut food into pieces (b) to convey food or drink to one s mouth (c) to chew and swallow food or drink (d) to take nutrition by using a therapeutic source 18

19 therapeutic source Parental or enteral tube feeding using a rate limiting device such as a delivery system or feed pump therapy Refers to long-term therapy which is (a) undertaken at home (b) prescribed or recommended by a registered doctor, nurse, pharmacist or healthcare professional regulated by the Health Professions Council [now Health and Care Professions Council] toilet needs (a) getting on and off the toilet (b) cleaning oneself after using the toilet unaided means without (a) without the use of an aid or appliance (b) without assistance, prompting or supervision Copyright Action for M.E. December Registered charity in England and Wales no Registered in Scotland no. SC Company limited by guarantee, registered in England no Disclaimer: Welfare benefits law is complex and subject to change and the information is correct at the time of writing. We are updating this factsheet as changes occur. Whilst every care has been taken to ensure accuracy at the time of writing, this fact sheet can only be a general guide as the process will vary depending on the severity of the claimant s condition. Action for M.E. cannot accept responsibility for any loss experienced as a result of this document. 19