PIP Back Payment

astra948

Hi,
My Apologies if this has been asked before.....

My wife was awarded indefinite or life long DLA but when they moved her to PIP the DWP said she wasn't entitled to anything.   At the time she didn't have the physical or mental strength to go through that horrendous DWP appeals process so a reconsideration wasn't requested.  

Many months later she put a new PIP claim in and she was turned down again.  But this time she felt strong enough go through appeals process and after 10 months of fighting them, and a few day before the tribunal date she received a phone call saying she was getting an award.  It was then back dated to the date she put the new claim in.

So my question is this....  as her PIP claim was won in the end and the DLA claim was for life, doesn't that show that the DWP were wrong to have stopped the claim at all, be it that they call it DLA or PIP i.e. they should back date payments to when the DLA was stopped, because they were wrong, and not just when the new PIP claim was put in.

Its interesting that when my wife went for her face to face and was told that she wasn't entitled to anything, its the worst her health has ever been.  It just shows how random the whole process is, it just depends on how sympathetic the assessor is on the day. 

Its not important to the question but we amassed a lot of debt when the money was stopped so it would help to clear some of this.

Thank you




  

poppy12345

Unfortunately, DWP are correct to only backdate her claim to when she applied the 2nd time because it was a new claim. As she was refused the first time, there is nothing to backdate further.

Had she requested the MR/Tribunal the first time, then of course she would have received backdated money owed at that time.

Muttleythefrog

As above.... and a classic example of how the system (and those human element in particular) fails disabled people who often because of their disabilities will not be able to get their due entitlement in the process where there is common incompetence and inaccuracy. The process certainly can be hit and miss (in this case the DWP had what.. 3 chances to get an accurate decision and only then when facing impending independent eyes on their evidence suddenly had a change of mind). But hopefully at least now she has a correct award, and if not you can pursue the appeal but perhaps seek advice first, and the backdated money to when the new claim was made. Keep paperwork etc for possible reference in future reviews. But in the meantime hopefully it is one less thing to worry about.

Probably obvious to add and say but DLA and PIP are quite different in terms of criteria and therefore awards can be different so there was no guarantee her disabilities would translate to any PIP award. However, reading between lines, and supported by the DWP's own decision in existence now they likely should have. Crucial for PIP... focusing on those descriptors of disability that are applicable in the various activities. 

calcotti

If you are within 13 months of that first refusal you can still request a Mandatory Reconsideration. If it is longer than that, which I infer it is, you are out of time.

Alice_Holt

   When the DWP settle weeks before the tribunal, it often indicates:
 a) The DWP  employee responsible for preparing the DWP appeal paperwork, having now looked at the case, realises that the DWP haven't a snowball's chance that the flawed DWP decision will be upheld by the independent tribunal panel;
 b) The DWP employee will offer the claimant the very minimum award. Knowing that a tribunal would likely decide on a higher award, they will then try to 'persuade' the claimant to accept this minimum 'offer' in order to minimise DWP payments;
 c) The DWP employee has a large caseload, has come to your case very late (only weeks before the tribunal date), and understandably doesn't want to spend time writing a submission which they know will not convince a tribunal panel. They may well feel that to best advantage their employer, it is better to make this low 'offer' rather than the case be decided by the tribunal panel.    

  How you and your wife respond to this 'offer' depends on whether you think the award does accurately reflect the needs of your wife and the PIP criteria. 
   If you feel the award is too low, then the option is there to "bank" the award, but still continue to tribunal to establish if an impartial tribunal panel agree with you or agrees with this belated DWP award. Whatever the tribunal decide, any payments due are always backdated to the date the PIP claim was started.  
  
 https://cpag.org.uk/welfare-rights/resources/article/offer-you-cant-refuse

 "A claimant to whom an offer is made would be well advised to accept it – ie, to request the decision maker carry out the revision and give her/him at least part of what s/he wanted. A claimant who is entirely happy with the revised decision (ie, where s/he has been given all s/he was contending for) is of course not obliged to continue with the appeal and so can say s/he is happy with the revision and then not pursue the appeal. However, even where the claimant is not entirely happy with the offer and will still want to appeal, the decision maker should be requested to do the revision. Arguably, a decision maker who refused to revise in those circumstances could face a challenge via judicial review.

If a claimant has accepted an offer but then changes her/his mind and decides that s/he wants to appeal in any event, s/he will still have a right of appeal. A claimant almost certainly does not lose her/his right of appeal through having undertaken not to exercise it, and cannot be bound by such an undertaking."

 I would suggest you try to seek the assistance of your local advice charity.  However recent case law has reduced the risks of proceeding to appeal:

"The decision of the Upper Tribunal should provide procedural protection to claimants who continue with appeals rather than accepting proposed revisions: effectively any First-tier Tribunal which wants to award less than the rejected offer will need to consider the same sort of issues they would do if wanting to make a decision that was worse for the claimant than the one appealed.

NB: The DWP have agreed to change their guidance such that if a claimant wants them to revise the decision they will conduct the revision even though the claimant states they will bring a further appeal."

See - https://cpag.org.uk/welfare-rights/resources/test-case/dwp-offers-and-how-tribunals-should-deal-them

https://cpag.org.uk/sites/default/files/files/resource/DO-v-SSWP-[2021]-UKUT-161-(AAC).pdf





As a general point always consider an appeal if you feel the DWP decision is wrong. I have found tribunals panels to be very understanding of claimants, and much more fair and thorough than the ATOS (etc) assessments.  About 75% of PIP tribunal appeals succeed. 

There are some good resources available if your local advice charity doesn't have the capacity to provide a representative:

 https://www.advicenow.org.uk/guides/how-win-pip-appeal

(As calcotti states a challenge can be made within 13 months of the date of the decision. Beyond that you are out of time)

calcotti

Alice_Holt said:..

 b) The DWP employee will offer the claimant the very minimum award. Knowing that a tribunal would likely decide on a higher award, they will then try to 'persuade' the claimant to accept this minimum 'offer' in order to minimise DWP payments

While I am sure that does happen I have generally found awards made as revisions prior to tribunal to be reasonable and on the one occasion I have had a lengthy discussion about an award with a DM at this stage found the DM to be entirely open abut their thinking and to discussing the award. I believe people involved at this stage are often more experienced with a proper understanding of how the award should be assessed. I think the length of award is still often short but that seems to be a general DWP issue,

sammyjammy

Alice_Holt said:

   When the DWP settle weeks before the tribunal, it often indicates:
 a) The DWP  employee responsible for preparing the DWP appeal paperwork, having now looked at the case, realises that the DWP haven't a snowball's chance that the flawed DWP decision will be upheld by the independent tribunal panel;
 b) The DWP employee will offer the claimant the very minimum award. Knowing that a tribunal would likely decide on a higher award, they will then try to 'persuade' the claimant to accept this minimum 'offer' in order to minimise DWP payments;
 c) The DWP employee has a large caseload, has come to your case very late (only weeks before the tribunal date), and understandably doesn't want to spend time writing a submission which they know will not convince a tribunal panel. They may well feel that to best advantage their employer, it is better to make this low 'offer' rather than the case be decided by the tribunal panel.    

  How you and your wife respond to this 'offer' depends on whether you think the award does accurately reflect the needs of your wife and the PIP criteria. 
   If you feel the award is too low, then the option is there to "bank" the award, but still continue to tribunal to establish if an impartial tribunal panel agree with you or agrees with this belated DWP award. Whatever the tribunal decide, any payments due are always backdated to the date the PIP claim was started.  
  
 https://cpag.org.uk/welfare-rights/resources/article/offer-you-cant-refuse

 "A claimant to whom an offer is made would be well advised to accept it – ie, to request the decision maker carry out the revision and give her/him at least part of what s/he wanted. A claimant who is entirely happy with the revised decision (ie, where s/he has been given all s/he was contending for) is of course not obliged to continue with the appeal and so can say s/he is happy with the revision and then not pursue the appeal. However, even where the claimant is not entirely happy with the offer and will still want to appeal, the decision maker should be requested to do the revision. Arguably, a decision maker who refused to revise in those circumstances could face a challenge via judicial review.

If a claimant has accepted an offer but then changes her/his mind and decides that s/he wants to appeal in any event, s/he will still have a right of appeal. A claimant almost certainly does not lose her/his right of appeal through having undertaken not to exercise it, and cannot be bound by such an undertaking."

 I would suggest you try to seek the assistance of your local advice charity.  However recent case law has reduced the risks of proceeding to appeal:

"The decision of the Upper Tribunal should provide procedural protection to claimants who continue with appeals rather than accepting proposed revisions: effectively any First-tier Tribunal which wants to award less than the rejected offer will need to consider the same sort of issues they would do if wanting to make a decision that was worse for the claimant than the one appealed.

NB: The DWP have agreed to change their guidance such that if a claimant wants them to revise the decision they will conduct the revision even though the claimant states they will bring a further appeal."

See - https://cpag.org.uk/welfare-rights/resources/test-case/dwp-offers-and-how-tribunals-should-deal-them

https://cpag.org.uk/sites/default/files/files/resource/DO-v-SSWP-[2021]-UKUT-161-(AAC).pdf





As a general point always consider an appeal if you feel the DWP decision is wrong. I have found tribunals panels to be very understanding of claimants, and much more fair and thorough than the ATOS (etc) assessments.  About 75% of PIP tribunal appeals succeed. 

There are some good resources available if your local advice charity doesn't have the capacity to provide a representative:

 https://www.advicenow.org.uk/guides/how-win-pip-appeal

(As calcotti states a challenge can be made within 13 months of the date of the decision. Beyond that you are out of time)

I know the system isn't perfect and there a small % of staff who let their own feelings colour their professional judgement but I think this is unfair to most of the hard working staff at DWP that don't make decisions to benefit the governments pocket and try to do the right thing within the laws laid out in front of them.

Muttleythefrog

sammyjammy said:

Alice_Holt said:

   When the DWP settle weeks before the tribunal, it often indicates:
 a) The DWP  employee responsible for preparing the DWP appeal paperwork, having now looked at the case, realises that the DWP haven't a snowball's chance that the flawed DWP decision will be upheld by the independent tribunal panel;
 b) The DWP employee will offer the claimant the very minimum award. Knowing that a tribunal would likely decide on a higher award, they will then try to 'persuade' the claimant to accept this minimum 'offer' in order to minimise DWP payments;
 c) The DWP employee has a large caseload, has come to your case very late (only weeks before the tribunal date), and understandably doesn't want to spend time writing a submission which they know will not convince a tribunal panel. They may well feel that to best advantage their employer, it is better to make this low 'offer' rather than the case be decided by the tribunal panel.    

  How you and your wife respond to this 'offer' depends on whether you think the award does accurately reflect the needs of your wife and the PIP criteria. 
   If you feel the award is too low, then the option is there to "bank" the award, but still continue to tribunal to establish if an impartial tribunal panel agree with you or agrees with this belated DWP award. Whatever the tribunal decide, any payments due are always backdated to the date the PIP claim was started.  
  
 https://cpag.org.uk/welfare-rights/resources/article/offer-you-cant-refuse

 "A claimant to whom an offer is made would be well advised to accept it – ie, to request the decision maker carry out the revision and give her/him at least part of what s/he wanted. A claimant who is entirely happy with the revised decision (ie, where s/he has been given all s/he was contending for) is of course not obliged to continue with the appeal and so can say s/he is happy with the revision and then not pursue the appeal. However, even where the claimant is not entirely happy with the offer and will still want to appeal, the decision maker should be requested to do the revision. Arguably, a decision maker who refused to revise in those circumstances could face a challenge via judicial review.

If a claimant has accepted an offer but then changes her/his mind and decides that s/he wants to appeal in any event, s/he will still have a right of appeal. A claimant almost certainly does not lose her/his right of appeal through having undertaken not to exercise it, and cannot be bound by such an undertaking."

 I would suggest you try to seek the assistance of your local advice charity.  However recent case law has reduced the risks of proceeding to appeal:

"The decision of the Upper Tribunal should provide procedural protection to claimants who continue with appeals rather than accepting proposed revisions: effectively any First-tier Tribunal which wants to award less than the rejected offer will need to consider the same sort of issues they would do if wanting to make a decision that was worse for the claimant than the one appealed.

NB: The DWP have agreed to change their guidance such that if a claimant wants them to revise the decision they will conduct the revision even though the claimant states they will bring a further appeal."

See - https://cpag.org.uk/welfare-rights/resources/test-case/dwp-offers-and-how-tribunals-should-deal-them

https://cpag.org.uk/sites/default/files/files/resource/DO-v-SSWP-[2021]-UKUT-161-(AAC).pdf





As a general point always consider an appeal if you feel the DWP decision is wrong. I have found tribunals panels to be very understanding of claimants, and much more fair and thorough than the ATOS (etc) assessments.  About 75% of PIP tribunal appeals succeed. 

There are some good resources available if your local advice charity doesn't have the capacity to provide a representative:

 https://www.advicenow.org.uk/guides/how-win-pip-appeal

(As calcotti states a challenge can be made within 13 months of the date of the decision. Beyond that you are out of time)

I know the system isn't perfect and there a small % of staff who let their own feelings colour their professional judgement but I think this is unfair to most of the hard working staff at DWP that don't make decisions to benefit the governments pocket and try to do the right thing within the laws laid out in front of them.

Small percentage or majority? Decision makers seem to routinely short cut to using the 'independent' medical assessment company's reports rather than properly assessing all the relevant evidence available (as a tribunal surely will). Then to compound the problem they seem to routinely do same when asked to reconsider. You get cases like this as a result where only when the impending threat of independent and reasonable eyes on the evidence does someone decide to do their job - DWP DMs had 3 formal opportunities to award PIP previously (the caveat that her disabilities could have varied sufficiently to explain I think we can largely discount along with the often trotted out line of 'new evidence'). I appreciate that many of the shortcomings will be down to resource and pressures to get through work efficiently (just as will be the case of the HCPs conducting assessments) but the consequence is disabled people are being let down and the DWP itself will likely know this from the recent report it commissioned on the disabled claimant experience and will not publish (last I checked). 

In all of my time claiming ESA/UC and PIP the decision makers did not veer one iota from a copy paste job on the medical report (which may or may not be accurate) and I would bet that is the typical reality rather than exception. Indeed we have even seen cases on MSE where the 'copy paste job' was of abundantly clear errors like where the report itself had a justification for a descriptor selection that was not the descriptor selected on the same page of the report yet the decision contained both. I am sure most DWP staff are authentic and do a decent job - but I am not convinced the same can be said of Decision Makers acting on 'sickness and disability' benefits.

Alice_Holt

calcotti said:

Alice_Holt said:..

 b) The DWP employee will offer the claimant the very minimum award. Knowing that a tribunal would likely decide on a higher award, they will then try to 'persuade' the claimant to accept this minimum 'offer' in order to minimise DWP payments

....I have generally found awards made as revisions prior to tribunal to be reasonable and on the one occasion I have had a lengthy discussion about an award with a DM at this stage found the DM to be entirely open abut their thinking and to discussing the award. I believe people involved at this stage are often more experienced with a proper understanding of how the award should be assessed. I think the length of award is still often short but that seems to be a general DWP issue,

     Unfortunately that's not been my experience, but hopefully the DWP may be moving towards making fairer offers.

     Certainly claimants have expressed to us their view that they were being pressured into accepting the offer.    
     Some claimants feel that if the DWP comes in with an 'offer' so close to a tribunal date, they would prefer to carry on with their appeal so that they can give their own verbal evidence directly to the tribunal panel.   

     It is a pity that experienced DM's are not involved earlier in the process, so that a reasonable decision could have been made in the first instance (or at MR stage) without the claimant waiting many, many months for a flawed decision to be rectified.
  

Alice_Holt

sammyjammy said:

Alice_Holt said:

   When the DWP settle weeks before the tribunal, it often indicates:
 a) The DWP  employee responsible for preparing the DWP appeal paperwork, having now looked at the case, realises that the DWP haven't a snowball's chance that the flawed DWP decision will be upheld by the independent tribunal panel;
 b) The DWP employee will offer the claimant the very minimum award. Knowing that a tribunal would likely decide on a higher award, they will then try to 'persuade' the claimant to accept this minimum 'offer' in order to minimise DWP payments;
 c) The DWP employee has a large caseload, has come to your case very late (only weeks before the tribunal date), and understandably doesn't want to spend time writing a submission which they know will not convince a tribunal panel. They may well feel that to best advantage their employer, it is better to make this low 'offer' rather than the case be decided by the tribunal panel.    

  How you and your wife respond to this 'offer' depends on whether you think the award does accurately reflect the needs of your wife and the PIP criteria. 
   If you feel the award is too low, then the option is there to "bank" the award, but still continue to tribunal to establish if an impartial tribunal panel agree with you or agrees with this belated DWP award. Whatever the tribunal decide, any payments due are always backdated to the date the PIP claim was started.  
  
 https://cpag.org.uk/welfare-rights/resources/article/offer-you-cant-refuse

 "A claimant to whom an offer is made would be well advised to accept it – ie, to request the decision maker carry out the revision and give her/him at least part of what s/he wanted. A claimant who is entirely happy with the revised decision (ie, where s/he has been given all s/he was contending for) is of course not obliged to continue with the appeal and so can say s/he is happy with the revision and then not pursue the appeal. However, even where the claimant is not entirely happy with the offer and will still want to appeal, the decision maker should be requested to do the revision. Arguably, a decision maker who refused to revise in those circumstances could face a challenge via judicial review.

If a claimant has accepted an offer but then changes her/his mind and decides that s/he wants to appeal in any event, s/he will still have a right of appeal. A claimant almost certainly does not lose her/his right of appeal through having undertaken not to exercise it, and cannot be bound by such an undertaking."

 I would suggest you try to seek the assistance of your local advice charity.  However recent case law has reduced the risks of proceeding to appeal:

"The decision of the Upper Tribunal should provide procedural protection to claimants who continue with appeals rather than accepting proposed revisions: effectively any First-tier Tribunal which wants to award less than the rejected offer will need to consider the same sort of issues they would do if wanting to make a decision that was worse for the claimant than the one appealed.

NB: The DWP have agreed to change their guidance such that if a claimant wants them to revise the decision they will conduct the revision even though the claimant states they will bring a further appeal."

See - https://cpag.org.uk/welfare-rights/resources/test-case/dwp-offers-and-how-tribunals-should-deal-them

https://cpag.org.uk/sites/default/files/files/resource/DO-v-SSWP-[2021]-UKUT-161-(AAC).pdf





As a general point always consider an appeal if you feel the DWP decision is wrong. I have found tribunals panels to be very understanding of claimants, and much more fair and thorough than the ATOS (etc) assessments.  About 75% of PIP tribunal appeals succeed. 

There are some good resources available if your local advice charity doesn't have the capacity to provide a representative:

 https://www.advicenow.org.uk/guides/how-win-pip-appeal

(As calcotti states a challenge can be made within 13 months of the date of the decision. Beyond that you are out of time)

I know the system isn't perfect and there a small % of staff who let their own feelings colour their professional judgement but I think this is unfair to most of the hard working staff at DWP that don't make decisions to benefit the governments pocket and try to do the right thing within the laws laid out in front of them.

        I wonder if some of the difficulties centre around reduced employee numbers, increased workload, poor processes and systems. I get the impression that DWP staff nowadays are limited by time constraints, considerable work overload, and poor guidance / training.

       I fully admit that my views are coloured by the very poor quality disability benefit decision making that come to us at my local office. It is not uncommon for a claimant with a negative PIP award, then to be awarded enhanced at a tribunal. 

     I would really hope that the majority of awards are indeed right, we tend to only see the flawed ones.  However, I do worry about claimants (such as the OP's wife with the first PIP decision) who may not be able to access advice, view the appeal process as too stressful, and consequently accept a flawed decision.   

calcotti

Alice_Holt said: Some claimants feel that if the DWP comes in with an 'offer' so close to a tribunal date, they would prefer to carry on with their appeal so that they can give their own verbal evidence directly to the tribunal panel.   

I tend to agree that if the offer is ‘low’ and the tribunal date is close it does make sense to continue with the existing appeal. If the offer is made near start of appeal then taking the offer and reappearing as suggested by CPAG makes more sense just to get the income in place.

Reflecting on my comments, these are from offers made at the start of the appeal process rather than last minute as in this case. I don’t do many appeals but the three of four I have done in the last couple of years have all been resolved prior to tribunal with offers that I considered reasonable.

I completely agree that there should be far fewer decisions that are not got right first time. Not only is is harmful to clients but it’s a waste of time and taxpayers’ money.