Up to 192,000 claimants may have had their PIP claim unlawfully stopped because letters sent out did not make it clear that failure to attend an assessment without good reason would definitely result in their claim ending.
An upper tribunal judge ruled last week that PIP appointment letters sent out by Atos were flawed and that a claimant who failed to attend without good cause could not lawfully have their PIP claim closed for non-attendance.
Judge Wikeley was ruling in relation to a claim made in February 2017.
The claimant had a number of medical conditions including severe epilepsy, severe depression and anxiety as well as daily faecal incontinence and used a colostomy bag.
The claimant was being moved from DLA to PIP.
They cancelled their first assessment appointment three days before it was due to take place.
They were given a second appointment which they failed to turn up for.
The claimant said they had missed the second appointment because of an epileptic fit which had resulted in an overnight hospital stay.
They said they would provide medical evidence of the hospital stay but did not do so.
A decision maker found that they had failed to attend their PIP assessment without good cause and stopped their claim.
The claimant appealed but the tribunal upheld the DWP’s decision.
The claimant then appealed to the upper tribunal.
Judge Wikeley held firstly that the original tribunal’s decision was wrong because they had not seen the appointment letter the claimant was sent. This in itself was an error of law.
But Judge Wikeley did have a copy of the letter and went on to consider whether it was legally enforceable.
The letter from Atos said:
“It is important that you attend this appointment. If you fail to attend without good reason the decision maker at the Department for Work and Pensions is likely to disallow your claim. If you can’t attend please contact our Customer Service Centre straightaway on [phone number to be inserted].”
The judge found that it was not sufficiently clear that the Atos letter involved the imposition of a legal requirement on a claimant to attend the assessment.
This is because it only said it was ‘likely’ that the decision maker would disallow the claim if there was not a good reason for not attending. This suggested that there were some circumstances where failure to attend, even without a good reason, would still not result in a claim being stopped.
The judge held that the letter ought to have said something like: “You must attend this appointment. If you fail to attend without good reason the decision maker at the Department for Work and Pensions will disallow your claim.”
The DWP, rather outrageously tried to claim that it was out of concern for claimants that they had been ambiguous:
“The letters are addressed to persons with a disability, many of whom will be vulnerable. It is necessary to strike a balance between clear communication which stresses the need to attend the assessment, and the likely consequences of failure to attend, but without frightening claimants into being so fearful of punitive action that they will attempt to attend an appointment even if the nature of their health condition or disability makes this difficult or impossible.”
Many claimants who have been threatened with sanctions will know only too well how little the DWP cares about “frightening claimants into being so fearful of punitive action”.
The judge dismissed the DWP’s argument, pointing out that the letter could have explained how to change an appointment and also that it was wrong to argue that “politeness” should take precedence over clarity.
The judge overturned the decision of the first-tier tribunal and awarded the claimant the enhanced rates of both components of PIP.
Up to October 2019, 192,000 claimants had been refused PIP due to failure to attend an assessment. It now seems that many of those refusals were unlawful.
We should stress that this absolutely does not mean that you can simply fail to attend an assessment without fear of consequences.
But it does mean that if you are refused PIP because of failure to attend an assessment without good cause then, depending on the precise wording of the letter, you should seek advice because you may be able to get the decision overturned.