Mandatory Reconsideration advice please 4 January 2021 at 6:51PM in Disability money matters 13 replies 1.8K views

yellowfreesias

Hello

Some background:  My wife suffers from Chronic Fatigue and anxiety - applied for DLA in 2005 got refused then was awarded lower rate for both care and mobility at tribunal that same year.  In 2016 she was moved over to PIP - lost the daily living element (she was too unwell at the time to appeal) but kept the mobility element (standard rate)

She was due for renewal and had a telephone assessment in November, this lasted 20 minutes. Received the decision letter saying she had lost her award. 

Her points previously (2016) were:

Preparing food -2 points

Mixing with other people (due to anxiety) -2 points

Planning & following a journey (due to anxiety) - 4 points

Moving around - 4 points

Points now (2020)

Preparing food -2 points

Washing and bathing -2 points

Moving around - 4 points

The DM is stating that as she has no dietician or specialist input (and can read!) this means she can manage all of the daily living activities, apart from preparing food and washing & bathing, which they’ve given points for despite not having any specialist input for these either! Incidentally the washing/bathing are ‘new’ points she’s been awarded so they’ve acknowledged and accepted she’s worse than last time with that!

They also said “You said you have difficulties planning/following journeys.  At your telephone consultation you said you go out once or twice a week.  I have therefore decided you can plan/follow the route unaided”.  My wife clearly stated to the  assessor that she could only go out once or twice a week maximum and only on a good week if her fatigue allowed, some weeks not at all, and if she was able to go out it was never alone (always with me) because of her anxiety - so certainly not unaided, but they have removed all previous points awarded due to her anxiety.

Have phoned the DWP to ask for a Mandatory Reconsideration which we will be following up with a letter.  Also requested the accessors report but have received a further 2 copies of the decision letter instead! Have requested the accessors report again, but the MR letter has to be back by 16th January so we don’t have much time now.

We have read up about the MR and it’s recommended to send medical evidence, but the problem is she doesn’t have any current specialist input - so can only repeat what she put on the renewal form - so presumably if they ignored this before they will again?

Also the real life examples are difficult as she has learnt to ‘pace’ herself with the CFS and to avoid situations which cause her anxiety/distress. She was due to have a minor procedure done but because of Covid the hospital are saying that she can’t have anyone with her so she has had to turn the appointment down as her anxiety would be too overwhelming if she was alone - so would this be a suitable example?  How recent do examples need to be?

Finally is it worth me putting a letter in with the MR explaining my wife’s difficulties or is this pointless?

If anyone has any advice it would be much appreciated, thank you

poppy12345

Medical evidence isn't really needed for a successful PIP claim. The recent real world examples will be what they are looking for and this is definitely what will help.

The "no specialist imput" is a standard copy and paste they use quite often and should be ignored. The assessment report is not needed for the MR request because what you shouldn't do is point out the "lies" that may have been told in that report. This isn't going to get her a PIP award. What will give her more of a chance is the strength of her evidence.

The majority of MR decision's don't change so be prepared to take it to Tribunal, although decision's have changed at MR stage, even for those that originally scored zero points.

Personally, i wouldn't have rang to request the MR first, i would have put it in writing, send it and then ring to request it and they should then receive the letter shortly after that. Whether you send the letter now is entirely your decision.

Spoonie_Turtle

I also have CFS and had to do an MR. I couldn't process all of your comment but it is worth explaining why their reasoning is faulty. Also explain exactly *why* there is no specialist input (even if it is literally 'there is nothing they can do to help' - it carries extra weight if she's seen specialists in the past and been either officially or practically discharged).

For real life examples, explain pacing and WHY, explain how she copes, and what would happen IF she tried xyz or pushed too far. Same with the journeys, just tell them why their reasoning/assumptions/justifications are wrong.

My assessor's report arrived way after the decision letter but it turned out the justification in the decision letter was almost verbatim from the report. Justification for being fine included because I hold a driving licence (even though I've been too unwell to drive for ~5years, and I told them that), that I went to mainstream school - !!! yes really -, that I answered all the questions (only because I was laying in bed with my eyes closed with the phone on speaker, and it took me time to find my words and I had literally only got out of bed to go to the toilet that day, had a nap before the call and slept after the call), and that I had no specialist input (because neither the GP nor the Chronic Fatigue Service could do anything else to help; and by the time I saw the service I'd already had to buy my own wheelchair and they gave zero help for mobility - all of which I put in my form and told the assessor).

It is worth persevering. I was fortunate that the DM who looked at my MR actually did her job and made a much better decision. She phoned me up to clarify some things, and while I didn't agree with all her descriptor choices it was enough for an appropriate award. Even if you do the work for an MR and it remains the same, you'll have laid a good foundation for an appeal.

Do include a letter, focusing on the activities assessed and particularly the ones you disagree with the descriptors.

Overall for an MR, focus on the avtivities/descriptors where you think she should score points (or score more points), not so much ones where she has difficulty but not enough to score any (extra) points.

I'm assuming you understand how PIP is assessed but in case not, helpful links:
https://www.citizensadvice.org.uk/benefits/sick-or-disabled-people-and-carers/pip/appeals/how-decisions-are-made/
RELIABLY is probably the most important concept, especially for illnesses that aren't straightforward physical impairments
https://www.gov.uk/government/publications/personal-independence-payment-assessment-guide-for-assessment-providers/pip-assessment-guide-part-2-the-assessment-criteria#reliability-1

yellowfreesias

Thank you both for your replies - it’s helpful to know that ‘specialist input’ isn’t as important as they make out.

She hasn’t seen a consultant for years for exactly the reason you mentioned - because they couldn’t do any more for her.  She will make sure to mention this in the letter

The reason we phoned first to request the MR was because the decision letter was dated the 16th December but we didn’t receive it until Christmas Eve - the DWP were then closed until the 29th and we were concerned that we would run out of time.  Due to her cognitive dysfunction caused by the CFS it takes a long time to get letters/forms completed and it exhausts her.

Spoonie_Turtle

Makes sense. You can help her with it, or even write it for her if necessary and then she can go over it and make sure nothing's been missed out. If so, tell them you've helped / done it for her and why. 

(It took me many months to draft my answers for the PIP form, then another 3 months to do the final thing back when they were giving that long because of the pandemic, but that was another justification they used: that I filled in the form myself. I had to get a friend's help to do the MR because I only had a couple of weeks, which probably helped my case!)

Actually the points your wife was awarded were exactly the same as my initial outcome! I wonder if there's a standard "ME/CFS with no specialist input = these are the likely points" guideline! (If it weren't so distressing it would be laughable.)

poppy12345

It's also worth remembering that you have 13 months to request the MR and Tribunal and not 1 month like they tell you. With good reasons why you were late requesting it, it's not usually refused and if DWP refuse to look at the decision again with the MR then you'll have a decision letter saying it's been refused. Then you'll take it to Tribunal.

50Twuncle

I have an important question for these (MR and Tribunal) appeals - are they "in person" appeals or just paper exercises ?

poppy12345

50Twuncle said:

I have an important question for these (MR and Tribunal) appeals - are they "in person" appeals or just paper exercises ?

The MR has never been " in person."It's always been paper.  Tribunals are mostly telephone,hearings, up until a few months ago they were only doing face to face hearings under the most extreme circumstances. No idea about now with the national lockdown. Although most are telephone hearings. Sometimes they will make a decision before the telephone hearing takes place but this is rare.

The success rate of paper based hearings is still below 10%.

Alice_Holt

OP.
Just to reinforce Spoonie_Turtle's point about reliability. 
This will be very important in your PIP appeal.  It includes doing tasks safely, to a acceptable standard, in a reasonable time scale (no more than twice as long as a person without that illness / disability), and repeatedly.

So, as an example - let us take the dressing activity (for which the assessor scored your wife no points) - does your wife take a long time to dress [on the majority of days] ? 
If so then she needs to fully explain this in her appeal. 

Re the Social engagement PIP activity. Have a look at the assessors report (when you get it). Assessor's often use the wrong test. It is not if someone can engage (fleetingly) with a shop assistant, the assessor, a close family member. The test is whether they can initiate, maintain, and sustain meaningful social engagement.  Does your wife's condition prevent her from achieving this [on the majority of days], as she would wish to do? 
The case law around this is stated in [2017] UKUT 154 (AAC)   CPIP/3622/2016
https://www.gov.uk/administrative-appeals-tribunal-decisions/pm-v-secretary-of-state-for-work-and-pensions-pip-2017-ukut-154-aac

"Regulation 4(2A) of the main PIP regulations provides -

Where [a claimant's] ability to carry out an activity is assessed, [the claimant] is to be assessed as satisfying a descriptor only if [the claimant] can do so - (a) safely; (b) to an acceptable standard; (c) repeatedly; and (d) within a reasonable time period.

Regulation 4(4) of the main PIP regulations provides -

1. "safely” means in a manner unlikely to cause harm to [the claimant] or to another person, either during or after completion of the activity;
2. “repeatedly” means as often as the activity being assessed is reasonably required to be completed; and
3. “reasonable time period” means no more than twice as long as the maximum period that a person without a physical or mental condition which limits that person’s ability to carry out the activity in question would normally take to complete that activity."

Whirleybird_2

Have you asked for a copy of the assessor’s report? If not, do so immediately. This will show where they have lied, and what you need to address in the letter about the MR. I have ME, and have had to go to tribunal in the past - I was on DLA indefinitely, when I moved to PIP, had my award reduced and for 3 years. When I received my assessor’s report, I found she had decided how far I could walk without having seen me move off the sofa (I spent the whole assessment lying on the sofa). The MR confirmed her assessment, so I went to tribunal. I had my previous award reinstated. Since then, I’ve been reassessed on paper once, and face to face once. I now have the award indefinitely again. They hope that you won’t appeal. I hate the DWP and this hideous government with all my heart for the way they are abusing and killing us. Fight hard for your wife. 

poppy12345

Whirleybird_2 said:

 I now have the award indefinitely again.

There are no indefinite awards for PIP like there were for DLA. The longest PIP award is ongoing, which is 10 years.