General – Getting PIP is relevant to ESA award
The DWP has always been keen to say that ESA and PIP are completely different benefits and getting PIP does not have any relevance to whether you can get ESA. In decision CE/2314/2016, however, the Upper Tribunal has said that the fact that someone gets PIP IS relevant to their entitlement to ESA and that ESA Tribunals should always take into account the fact that someone gets PIP, and for what reasons, when making their decision.
The Upper Tribunal has also said that if someone supplies a copy of their PIP assessment or claim file, the Tribunal should always look at it and take it into account. The UT even went so far as to say that if an unrepresented claimant (one without a representative) hasn’t supplied a copy of a recent PIP claim file, the ESA Tribunal should consider getting a copy of the PIP case file from DWP.
Importantly, if the Tribunal doesn’t take into account any PIP award and whether they should obtain the PIP claim file, they have made an error in law and their decision can be set aside or appealed.
WHAT THIS MEANS FOR YOU
If you’ve been awarded PIP, but are then turned down for ESA or the ESA Support Group, you can now use your PIP decision as evidence that you qualify for ESA when asking for a mandatory reconsideration or when appealing.
You should give the DWP decision-maker or the Tribunal a copy of any PIP documents which support your ESA claim – eg a PIP assessor’s report that you can’t walk 50 m or have significant mental health issues. Be sure to make the link between the two, eg ‘I am claiming points under ESA for not being able to walk 50 metres. My PIP assessment shows that I cannot walk 50 metres’. If you don’t have copies of the PIP documents, ask the DM or Tribunal to get copies. Quote the case reference above.
If a DWP decision maker for ESA does not take any relevant recent PIP documents into account, they have made an error which you can challenge at Tribunal. If an ESA Tribunal fails to take any relevant recent PIP documents into account, they have made an error at law and their decision can be set aside. The ESA Tribunal’s Statement of Reasons has to specifically say that they have considered the PIP documents (including whether or not to request them) or they have made another error in law.
This decision does NOT mean that everyone on PIP automatically will get ESA. But it does make it much harder for DWP to make stupid decisions where people who they have accepted as being disabled for PIP are at the same time considered not disabled for ESA. It’s another nail in the coffin of arbitrary decision-making on the whim of assessors, too.
This will apply to all ESA Tribunal decisions after 12 January 2017.
This analysis is brought to you free of charge by BuDS Benefit Information Team – see https://buds.org.uk/benefits-information/. It is only general information and you should take advice on your own case.
You can read the full judgement here: https://www.gov.uk/…/jb-v-secretary-of-state-for-work-and-p…