An important new Upper Tribunal judgment has clarified the legal framework for deciding whether a Personal Independence Payment (PIP) award should be an indefinite award or for a fixed term.
The judgment can be used by those disabled people who feel that they should be made an indefinite award of PIP as their daily living and/or mobility problems are unlikely to diminish.
It can also be used by those disabled people who feel that they should have been made a longer fixed term PIP award again because their daily living and/or mobility problems are likely be more long standing.
In UK/5459/2014, Upper Tribunal Judge Mitchell holds that the Welfare Reform Act 2012 provides a qualified requirement that PIP awards are to be for a fixed term.
The statutory qualification to the requirement for fixed term awards is that a fixed term award would be “inappropriate”.
In deciding whether a fixed term would be inappropriate, a key consideration is the likely persistence of an individual’s limiting conditions.
A factor in favour of concluding a fixed term award would be inappropriate is the relative ease with which the DWP may re-open the question of a PIP recipient’s entitlement even if s/he has an indefinite award.
Judge Mitchell further holds that:
- if a fixed term award would be inappropriate, an indefinite award is to be made;
- a First-tier Tribunal has jurisdiction to hear an appeal against a decision not to make an indefinite award; and
- if the Secretary of State issues guidance about deciding whether a fixed term award would be inappropriate, while a First-tier Tribunal is required to have regard to the guidance it must not be treated as if it were a rule.
In fixing the duration of a fixed term award, relevant considerations will include the likely persistence of an individual’s limiting conditions and the relative ease with which PIP entitlement may be re-opened before the end of the fixed term. Generally, the likely persistence of limiting conditions and duration of a fixed term award are positively related.
In addition, Judge Mitchell finds that:
- rigid categories for the duration of fixed term awards are not compatible with the purpose of the 2012 Act; and
- a First-tier Tribunal has jurisdiction to hear an appeal against a decision as to the duration of a fixed term award.
This decision also clarifies that DLA to PIP transfer awards have effect from a date determined by reference to the Secretary of State’s entitlement decision, not the date of the transfer claim.