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DR UK writes to DWP Minister to raise concerns about new PIP descriptor activity guidance

08 November 2017

Disability Rights UK has written to DWP Minister Penny Mordaunt to confirm what action will be taken following changes to Personal Independence Payment (PIP) guidance.

The DWP has updated its PIP assessment guide following case law relating to the ability to carry out a PIP descriptor activity “safely”.

Entitlement to PIP is determined by an assessment of a disabled person’s ability to carry out specified daily living and mobility activities. They should not be assessed as able to carry out an activity unless they can do so “safely”.

In March 2017, a Three Judge Upper Tribunal panel held that a PIP activity cannot be carried out safely does not require that the occurrence of harm is “more likely than not”.

Instead, what must be is considered is whether there is a real possibility that cannot be ignored of harm occurring, having regard to the nature and gravity of the feared harm in a particular case. Both the likelihood of the harm occurring and the severity of the consequences are relevant.

The same approach must apply to the assessment of a need for supervision.

On 2 November Penny Mordaunt Minister for Disabled People, Health and Work said -

“The DWP will be going through all existing cases to identify anyone who may be entitled to a higher rate of PIP as a result of the judgment, which was handed down on 9 March 2017. Anyone who is affected will be contacted by DWP, and their payments will be backdated to the judgment.

… In the case of existing claimants, the DWPs will undertake an exercise to go through all existing cases and identify anyone who may be entitled to more. We will then write to those people affected and all payments will be backdated to the date of the change in case law.”

The DWP estimates that around 10,000 PIP claimants will benefit by say that this PIP case trawl exercise by £70 to £90 per week in 2022/2023.

Disability Rights UK welcomes that the DWP –

  • is not seeking to dispute the judgment or amend PIP legislation;
  • recognised the implication of the legal judgment; and
  • is undertaking a trawl of existing cases as a result to confirm if some claimant’s PIP awards should be increased.

However, it is not clear exactly what amendments have been made to PIP guidance or who may benefit from the changes.

DR UK’s CEO Kamran Mallick has written to DWP Minister Penny Mordaunt asking –

  • for copies of the updated guidance paragraphs;
  • whether the claims of all those who have been refused PIP or have had PIP ceased to be paid will be reviewed;
  • the PIP case trawl procedure to be adopted and its likely timescale;
  • what evidence the Department will consider;
  • whether the DWP will be writing to claimants to ask them to submit evidence that they cannot undertake an activity “safely”;
  • how far back any increase to a claimant’s PIP award will be backdated; and
  • where it is decided that a PIP award will remain the same, will decision notices be issued inviting a claimant to submit an appeal.

DR UK’s Welfare Rights Adviser Ken Butler said –

“DWP action aimed at ensuring disabled people are receiving their correct PIP entitlement must be welcomed.

But it is disgraceful that after 4 years of PIP being in operation it has taken a legal judgment for the DWP to properly assess disabled people’s safety.

Disability Living Allowance was rightly payable to disabled people who need “constant supervision” (watching over) to avoid substantial danger to themselves. However, during consultations about the design of PIP the DWP refused to include this provision within the new benefit’s rules.

As a result, many disabled people, for example those with conditions such as epilepsy, have not successfully moved from DLA to PIP or been awarded a reduced rate of benefit.

The quality of Health Care Professional (HCP) reports has been the subject of continual criticism since PIP was introduced. This has been accompanied by decision makers giving weight to these reports over a disabled person’s own evidence.

If guidance on carrying out PIP activities “safely” has not been correct until now it’s possible that HCP reports will not have fully reported disabled problems in terms of safety.

Given this, it’s essential the DWP confirm how it will ensure that all current PIP claimants will properly have their PIP uprated.

But also, that it will consider if claims from those previously refused PIP had their claims wrongly decided.”

Read DR UK’s letter to the DWP Minister in full.

DR UK’s Guide to Making a Claim for Personal Independence Payment is available @ https://www.disabilityrightsuk.org/personal-independence-payment-pip