PIP appeal

Can a compensation award against an NHS Trust for damage sustained in hospital be clawed back if a claim for migration for DLA to PIP is disallowed? The award (2009) was made in recognition that the disability resulting from the hospital incident (2003) was permanent and degenerative.

Thirteen years after receiving IB/ESA and DLA at the highest rates, a recent application for PIP scored only 4 points for mobility. Part of the reasoning was that attending regular physiotherapy and therapeutic swimming evidenced reasonable mobility. A MR returned 10 points for mobility.

Substantiating medical evidence from the surgeons involved in several unsuccessful attempts at revisionary surgery and from the physiotherapist, all stating the permanent and degenerative nature of the injury and the severe limitation on normal mobility, appear to have been given little weight, in favour of the Decision Maker's assertion "I have decided you can move between 20 and 50 metres". This has no basis in fact, is not based on any information given or any observation at the assessment in December, and is directly contradictory to the medical reports.

There is no option but to appeal but, given the arbitrary nature of the comments in the DM's report, many of which do not mirror the discussion in any way, the concern is that if the Tribunal overturns the appeal and decides there is very little disability, can this be applied retrospectively with the result that the NHS can claw back the award? The concern is that twisted logic suggests it must follow that an award made for a permanent disability, which magically improves some seven years after the payment, was made in error.

Hi,

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Your query regarding your compensation in not within the forum remit, and we are not legally qualified to advise on it.

However, from the knowledge that I have as a "lay person" The DWP Compensation Recovery Unit (CRU) can only claw back any benefits received as a result of a personal injury from any personal injury compensation received, for a maximum of 5 year prior to the compensation settlement.

The fact that you may not qualify for a PIP award is not necessarily indicative that you no longer suffer from the disabilities that resulted in your compensation, it purely indicates that you cannot fulfil the stringent qualifying criteria for a PIP award.

If you have any further concerns regarding The NHS insurers being able to claw back some of the compensation due to you not receiving a PIP award, you should consult a solicitor, maybe the one that represented you in your case.

From my own "lay" viewpoint, it should not result in The NHS being able to claw compensation back, but a brief conversation with your solicitor should confirm the facts.

Regarding your appeal, many, many DLA to PIP transfers are resulting in a lesser PIP Award, or no award at all.

This is because the qualifying criteria for PIP differs greatly from that of DLA !!

Have a read through the following generic advice regarding PIP MR Appeals then come back to us if you have any further queries, although I am afraid that we cannot offer any further comments on the "Compensation" issue.

You have one month from the date of the PIP Decision Notice letter to make a written request for a Mandatory Reconsideration (MR) of the PIP decision.

Sending Documents to the DWP.

You could also ring the PIP Helpline :

Telephone: 0345 850 3322
Textphone: 0345 601 6677
Monday to Friday, 8am to 6pm

To request a copy of The PA4 PIP Medical Report compiled by the PIP Assessor at your face to face and sent to The DWP PIP DM to be used when the DM came to their decision.

If you have any problems obtaining The PA4 with a verbal request, you can make a written request which should be done as a separate issue to any MR request :

You can do this using a SAR Form :

SAR Form Download

From this page :

DWP Data Protection Policy

Or you can make the request in the form of a letter, as long as you make it clear that you are making a formal SAR under The Data Protection Act 1998.

Address the envelope : FAO The Data Controller, at the Benefits Office dealing with your PIP.

Write DPA 1998 SAR in front, top, left corner of envelope.

Once received, they have 40 calendar days to comply.

You should not miss your one month deadline if The PA4 or any other supporting evidence that you may be awaiting has not arrived.

You can make comment that you have requested this and will submit further evidence if applicable when you receive it.

Once you have The PA4, you can then pose any counter arguments to the PIP Assessors recommendations.

e.g. If they are stating that you can carry out a particular PIP Activity, has it been taken into account that to be classed as being able to carry out a PIP Activity, you must be able to do so Reliably and Safely for The Majority of Days

If the Assessor has stated that they witnessed you Walking a set distance have they taken into account the above, the time it took you to do so, and any pain, discomfort and breathless, etc that you may have suffered whilst doing so ? etc, etc, etc !!

You should be aware that when you request an MR, any current PIP Awards, Daily Living and/or Mobility, that you might have, can be increased, reduced or taken away altogether, as they will look at the whole PIP Awards afresh.

Obviously if you have no current PIP Award, there is no risk involved.

See : PIP MR/Appeals Guidance.

Disability Rights UK Factsheet - Appeals and Mandatory Reconsiderations.

Once you have gone through The MR Process, if you are still unsuccessful, you have one month from the date of The MR Decision Notice Letter to appeal directly to The Tribunal Service. (TS)

You should do this using one copy of The MR Notice letter (keep the othercopy) and the : SSCS 1 Form (Download Link)

All this is explained in our PIP Appeals Guidance

You should concentrate on reiterating where and why you should have scored the extra points with respect to the applicable PIP Activities and the appropriate scoring PIP Descriptor for that Activity, whilst cross-referencing to any medical evidence that you have, or may have already provided which indicates that you should have.

See also : PIP Self Test

PIP Points Scoring System

&

PIP Claims Guide. (2nd Link down the page)

I know that you have already gone through the MR, but you may find some of the information above helpful.

Just to note, that the Tribunal will have no concern with your Compensation award, they will just be looking at all the fact regarding your PI P assessment with a fresh pair of eyes from a totally neutral aspect to see whether you should have qualified for the appropriate PIP award at the time of the adverse decision that you are appealing !

You should Bookmark/Favourite this page in your Internet Browser now. That way you can return to this topic easily to pose any further queries that you may have by replying to the topic.

See : This Topic also !

Thanks in anticipation of your future co-operation in keeping all your PIP related queries to this topic !

bro58