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DWP launches case trawl review exercise to identify PIP claimants owed benefit arrears following landmark legal judgment on the need for support when ‘Engaging with other people face to face’

25 September 2020

The DWP has announced that it has launched a PIP case trawl search exercise to identify claimants now owed benefit arrears following a recent Supreme Court judgment.

This DWP review will result in potentially thousands more disabled people getting PIP or receiving it at a higher rate.

The Supreme Court judgement - Secretary of State for Work and Pensions v MM [2019] UKSC 34 - ruled that the DWP got the law wrong when deciding whether PIP claimants should get points for the activity “Engaging with other people face to face”.

Note: Activity 9 of the PIP daily living descriptors (Engaging with other people face to face) provides that:

a  Can engage with other people unaided.        Score 0

b  Needs prompting to be able to engage with other people.        Score 2

c  Needs social support to be able to engage with other people.  Score 4

d  Cannot engage with other people due to such engagement causing either:

(i) overwhelming psychological distress to the claimant; or

(ii) the claimant to exhibit behaviour which would result in a substantial risk of harm to the claimant or another person. Score 8

Previously, the DWP decided PIP claims on the basis that if someone needed ‘prompting’ to be able to engage with others then they would only score 2 points for descriptor b.

Due to the DWP’s limited interpretation of Activity 9, PIP claimants may have missed out if they regularly have support to help them manage face-to-face encounters from either:

  • a mental health professional; or
  • particular friends or relatives who are experienced in providing them with support

Two issues in respect of daily living activity 9 were in dispute before the Supreme Court:

  • what is the distinction between and meaning of the terms “prompting” (descriptor 9b) and “social support” (descriptor 9c);
  • can social support be given to a person at a time other than during the activity?

The Supreme Court held that some people previously only awarded 2 points for needing “prompting” should have got 4 points for needing social support, if that prompting was provided by somebody ‘trained or experienced’ in providing social support.

For example a mental health specialist or a friend or family member who is experienced in providing them with support.

“Prompting” is defined in PIP Regulations as meaning “reminding, encouraging or explaining by another person”.

In addition, the Supreme Court held that some people previously awarded 0 points because the social support they received did not happen “immediately before or during” the social engagement, should have got 4 points, as social support can be relevant even if provided before or after the event.

It is likely that it will consider PIP decisions made between the 6 April 2016 - the date from which the ruling applies - and 17 September 2020 - the date from which the DWP says that it has been following the Supreme Court ruling.

Those refused PIP previously and who benefit from the Supreme Court judgment may be owed several thousands of pounds in arrears.

While the DWP says that the procedure for its case review will be finalised after consultation with stakeholders, it has issued the following FAQ responses:

"What will this mean for current PIP claimants?

Where claims are reviewed, as part of the administrative exercise, and this leads to an increase in the PIP award, claimants will receive backdated payments to the effective date in each claim. This will usually either be the date of the start of their PIP award, or the date of the UT decision, whichever is the later.

What will this mean for PIP claimants who have previously been disallowed PIP?

We will be checking claims which have been disallowed after the Upper Tribunal’s decision on 6 April 2016 to see if they are within scope for inclusion in the exercise.

If claimants were disallowed PIP before the UT decision on 6 April 2016, their disallowance decision will not be reviewed. If they think the MM judgment may apply to their claim, they should consider making a new PIP claim.

What about claims where the DWPs award has been appealed? What about claimants who have appealed their PIP claim and their award was decided by a tribunal?

We do not have the power to change decisions made by a Tribunal on the basis that their decision is wrong in law. Therefore, we do not plan to review cases where the award decision was made by a Tribunal.

If claimants feel that they are affected by the Supreme Court judgment, they can ask us to review their claim at any point and this may result in a supersession of their PIP award.

If a claimant’s needs arising from their health condition or disability have changed since their award was decided by a tribunal and they think they are affected by MM, they will need to ask for their claim to be reviewed as a Change of Circumstances."

For more information see Personal Independence Payment (PIP). Implementation of legal judgment MM: frequently Asked Questions (FAQ) available from parliament.uk.

Benefits and Work have a 7 minute video explainer of the DWP case trawl review together with a video transcript available from www.benefitsandwork.co.uk.

See also Personal Independence Payment – A guide to making a claim available from disabilityrightsuk.org.