Can DWP change your PIP after appeal? [Webinar]

Hello

This is a message for those members who attended the Benefits and Work webinar on 'PIP: Using and finding the Law' with Mark Perlic, and me, Liam Casey, on Monday 21st June.

Some of you asked whether the DWP can change your PIP if it was awarded by a First-tier Tribunal.

The answer to this is that they cannot revise your award. In other words, if the Tribunal awards you PIP from 1st June 2021, the DWP can't change your award (down or up) on the 1st June 2021. However, they can supersede your award on certain grounds. In other words, in some circumstances, they can change your award from a later date - e.g. 1st June 2022.

Reassessments

The DWP have the power to 'redetermine' whether you satisfy the PIP disability criteria at 'any time' and for 'any reason' (Reg 11, SS(PIP) Regs 2013). This means that even if you have been awarded PIP by a Tribunal for (e.g.) three years, the DWP can ask you to complete a PIP form and/or attend a health assessment at any time and for any reason (i.e. just because they feel like it). So, if the Tribunal awards you PIP for a specific period, it doesn't mean the DWP will leave you alone for that whole period.

Howver, whilst they can reassess you for any reason, they cannot simply decide to change your award for any reason.

Supersessions

The DWP can only supersede an award made by a Tribunal on specific grounds, given in the UC, PIP, etc. (D&A) Regs 2013:

Reg 26 - where they have new medical evidence from a Health Care Professional or other person approved by the DWP

Reg 23 - where a relevant change of circumstances has occured

Reg 31(a) - where the decision arose from ignorance of or mistake as to some material fact

The DWP must have grounds to change your award

Reg 26 allows the DWP to change a Tribunal's award by supersession on the basis of a new HCP assessment report. However, they are still bound by usual standards of decision making. They should consider all the available evidence (not just the HCP report) and apply the disability test - including the descriptors, fluctuating conditions and reliability rules - properly.

Reg 23 allows the DWP to change the Tribunal's award by supersesion if there has been a change in circumstances. This might happen if you report a change in your condition, or if they decide your condition has changed without you having notified them. There are complex rules about the date such a supersession takes effect, listed in Schedule 1 of the D&A Regs.

Reg 31(a) allows the DWP to change the Tribunal's award by supersession if the Tribunal's decision was based on a mistake or ignorance of a material fact. The DWP must identify a 'primary fact', not just a difference in opinion, and it must be a fact which would have lead to you getting a different award had the Tribunal known about it. In practice, it will be difficult for the DWP to know exactly what facts the Tribunal had available to them, and in my experience the DWP use this ground only rarely.

If you disagree with a decision to supersede your PIP awarded by a Tribunal, then as always, you can challenge the decision by a mandatory reconsideration and appeal.

Summary

Highlighting how useful case law is, all of the above was set out by Judge Jacobs in BD v SSWP (PIP) [2020] UKUT 178 (AAC). You can read a copy of this Upper Tribunal decision here:

www.gov.uk/administrative-appeals-tribun...ip-2020-ukut-178-aac

All the best,

Liam
Benefits and Work

I received my Enhanced award for both at Tribunal and my award ran until 6 March 2021 - I was sent an AR1 form to review if anything had changed (not reassessed) and lost both awards. I’ve already asked this but this post has confused me again - sorry brain fog!!! Does this ruling CPIP1623/2017 where there has to be proof of a change and the onus is on DWP to prove it only apply if the DWP decided to review/supersede during an award time or does it apply when you’re reviewed - cos I thought it also applied if your award date ended and you were reviewed but now I’m not so sure again - sorry for being so but want to use it in my MR but want to get ti right!!!