Group file 42 DLA to PIP swaps Re-instate                        DLA? CPIP/1567/2017 

The Upper Tribunal has recently made a decision (CPIP/1567/2017) which requires DWP to reinstate the DLA payments of someone transferring to PIP *in certain circumstances*. See below for details. This is a complicated post, but you can just jump down to the section ‘What This Means For Me’ for a quick summary.

NB: This UT decision also made some important new rules about why it’s acceptable to not go to a PIP assessment, but these are explained in another post to make things simpler.


BACKGROUND
Everyone receiving DLA will eventually have to re-apply for PIP – about two-thirds of the people receiving DLA in 2013 have yet to move to PIP, so this will go on for some years.

The process for ending your DLA and starting PIP usually works like this:

1. DWP select you at random
2. DWP write to you telling you that your DLA will stop in the future and asking you to ring DWP and request a PIP claim form.
3. You call DWP and this starts your PIP claim. But your DLA claim continues as normal for the time being.
4. DWP ask you to go for a face-to-face assessment with an ATOS or Capita assessor. This can be at your home or at an assessment centre. A few people don’t get asked to attend a face-to-face assessment, but most do.
5. You attend the assessment
6. The assessor sends your assessment report to DWP
7. DWP decide on your PIP claim. This legally triggers the end of your DLA claim.
8. DWP write to you saying what they have decided about your PIP claim and telling you when your DLA will stop. Your DLA usually stops about 4 weeks after the date of this letter and your PIP award (if you have one) starts the next day.

 

If, for whatever reason, you do not attend the face-to-face assessment (step 5 above), DWP will ‘disallow’ your PIP claim. This means that they close your PIP claim because you have failed to comply with their rules about claiming PIP, one of which is that you must attend a face-to-face assessment. Their decision to disallow your PIP claim is also known as a ‘negative determination’ decision. However, DWP will still stop your DLA claim, even though your PIP claim has been disallowed.

You can then ask the DWP to review their decision to disallow your PIP claim (a mandatory reconsideration or MR) and then appeal to the independent Tribunal. If the DWP do reverse their decision at MR, or you win your appeal, the DWP will send you another appointment for a face-to-face assessment and you go back to step 4 on the first list.

Your progress will look like this:
 

5A. You don’t attend the assessment
6A. The assessor tells DWP that you didn’t attend
7A. DWP disallow your PIP claim (their negative determination). This triggers the end of your DLA claim too.
8A. DWP write to you saying your PIP claim has been disallowed and telling you that your DLA will stop.
Your DLA may stop immediately or in a few weeks’ time. 9A. You ask for a mandatory reconsideration of the DWP’s decision to disallow your claim (step 7A above) 10A. DWP agree with your mandatory reconsideration request, and you go back to step 4 OR 11A.
The DWP refuse your MR but the independent Tribunal accepts your appeal, and you go back to step 4.

Until now, the DWP have said that they could not legally reinstate your DLA after taking it away – step 8 or 8A above. All they have done – if you’re awarded PIP - is backdate your PIP claim to the day after your DLA stopped. That wasn’t a good situation for lots of people: - Many people got more DLA than PIP, so backdating their PIP claim rather than reinstating their DLA claim meant they lost money - People were left without any DLA income while the second PIP assessment and decision is being made - If PIP isn’t awarded after the second assessment, then the person has lost their DLA much earlier than they should.

This Upper Tribunal decision was about whether DWP can reinstate a DLA claim if their decision to disallow a PIP claim has been changed.
 

WHAT THE UPPER TRIBUNAL DECIDED
DWP argued that the PIP Regulations did not allow them to reinstate DLA claims in any circumstances. The Upper Tribunal took a different view of the Regulations and said that they DID allow DWP to reinstate DLA claims. As DWP have not sought leave to appeal, that is now the law.

The Upper Tribunal also instructed Tribunals to make an order requiring DLA to reinstate DLA when appropriate.

This is important for people on DLA who have their PIP claim disallowed by DWP, but that disallowance is later reversed. In such cases, the Upper Tribunal has said that DWP should reinstate DLA as from the date it was stopped until DWP make another decision on the PIP claim.

Using the progress line above, people at steps 10A or 11A should have their DLA (which had been stopped at stage 8A) reinstated. This means that they would be paid DLA until they reached step 8 again, ie until after they had their second face-to-face assessment and the DWP had made another decision on their PIP claim. (The same applies if you fail to attend the second assessment).

If this applies to you, you can ask DWP to reinstate your DLA claim if they fail to do so automatically. If DWP do not reinstate your DLA, you can ask for an MR and appeal against that decision alone – given that the UT instructed Tribunals to reinstate, you shouldn’t have a problem winning. This MR or appeal about the reinstatement of your DLA would be quite separate from any MR or appeal about your PIP claim.
 

WHAT THIS MEANS FOR ME
If you are on DLA and apply for PIP, but fail to attend a face-to-face assessment for PIP, you won’t get PIP and your DLA will also stop. However, if you persuade DWP or a Tribunal to change their mind and give you another PIP assessment, your DLA should now re-start until the DWP decide about your PIP claim after the second assessment. If your DLA doesn’t re-start, you can ask for an MR or ask a Tribunal to order it to be re-started.

 

TIMING The Upper Tribunal made this decision on 23 November 2017 but it’s a clarification of the law rather than a new definition. This means that this decision applies straightaway to all claims, mandatory reconsiderations and appeals.
 

This analysis is brought to you free of charge by BuDS Benefit Information Team. It is only general information and you should take advice on your own case. If you value our entirely voluntary charitable work, please consider making a donation via
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You can read the full judgement here: https://www.gov.uk/…/jm-v-secretary-of-state-for-work-and-p…

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