DLA to PIP transfer and awarded less than your old DLA award? You can now challenge the decision using this recent case law.
Important case law for people transferring from DLA to PIP. The Upper Tribunal makes a decision that makes it clear that there should be a connection between the new PIP award and the previous DLA award.
An Upper Tribunal has said that, when someone is reassessed for PIP after being on DLA, there is a direct connection between the level of the DLA award and the level of the new PIP award.
The tribunal has said that claimants should get an award of PIP which is similar to the award they had on DLA.
Where the new award is not similar to the old DLA award there needs to be a good reason for not continuing with a similar award.
The DLA to PIP transfer problem
As most people on DLA will be aware, everyone on DLA is being invited to claim PIP and be re-assessed for PIP.
For many DLA claimants this has resulted in significant differences between what they received on DLA and what they are awarded on PIP.
The test case that the Upper Tribunal looked at
In the case (CPIP/3272/2016) the Upper Tribunal looked at, a claimant who got Middle Rate Care and High Rate Mobility on DLA was awarded no points when re-assessed for PIP. A First Tier Tribunal (the appeal hearing that follows a Mandatory Reconsideration) had previously looked at the case and accepted the DWP decision to award no points. The claimant appealed to the Upper Tribunal, saying that this made no sense.
What the Upper Tribunal decided
The Upper Tribunal said that it was a long-established legal principle in social security law that Tribunals must give good reasons why it was making no or a lesser award when a substantial one had been made under a predecessor benefit. (This is known as the R(M)1/96 principle, after the case which established it).
The Upper Tribunal said that it accepted that DLA law and PIP law are different and that you cannot argue that an award of DLA automatically entitled someone to a similar PIP award.
However, the Upper Tribunal also said that the evidence and factors influencing decisions were often the same for the two benefits. Because of this, the UT decided, the R(M) 1/96 principle applied to DLA to PIP re-assessments.
This means that Tribunals must adequately explain why someone’s PIP award is very different from their earlier DLA award. If they do not give any reasons, or not good enough reasons, then the Tribunal’s decision is not legally valid and can be set aside. Another Tribunal would then need to make a fresh decision.
How can you use this decision?
If you get a PIP award which is very different to your DLA award, and you appeal that to the independent Tribunal, the DWP are going to be obliged to explain to the Tribunal why the award is different.
It will not be enough for the DWP to say, as they do now, that the law is different and so DLA awards have nothing to do with PIP awards.
If the Tribunal cannot find a good reason why your PIP award should be very different from your DLA award, it will have to make a PIP award which is in line with your DLA award. In time, this may push Tribunals to thinking that an equivalent award of PIP to that previously received on DLA is the ‘usual’ situation. But see the important note below.
In time, this UT decision ought to change DWP policy so that decision-makers start looking at previous DLA awards when making PIP awards and asking themselves why the PIP is different from the DLA award.
If there is a good reason why your PIP award is different to your DLA award, and the DWP or Tribunal can say what that good reason is, then legally you can still have a PIP award very different to your DLA award.
Good reasons might be that your conditions have changed since your DLA award, or that PIP law treats the same condition or impairment very differently from DLA award.
This particularly applies to mobility awards under PIP. High Rate Mobility under DLA was awarded to people who were unable or virtually unable to walk. In deciding whether someone was virtually unable to walk, a rule of thumb (not a hard rule) was whether you could reliably and repeatedly walk about 50 m. Under PIP, Enhanced Mobility (ignoring planning and following journeys) is awarded to people who cannot reliably and repeatedly walk only 20 m. So there is a perfectly good reason why someone who was awarded High Rate Mobility on DLA has not been awarded Enhanced Mobility for PIP – they couldn’t walk 50 m, but they can walk 20 to 50 m. If this walking test applies to you, this Upper Tribunal decision will not help you.
If from now on you get a PIP award which is very different to your earlier DLA award, you can now ask the DWP to explain why the decision is different, quoting this case as your authority. You can do this in your mandatory reconsideration. If the DWP fail to give good reasons, you can ask a Tribunal to set-aside or dismiss the DWP’s PIP award quoting this Upper Tribunal decision.
If from now on a Tribunal doesn’t give good reasons why they have awarded you less PIP than you had on DLA, then you can quote this Upper Tribunal decision to ask a Regional Tribunal Judge or the Upper Tribunal to set-aside the Tribunal’s decision and give you another hearing.
You will need to ask the Tribunal for a Statement of Reasons to know whether or not they found a good reason.
When does this apply from?
The Upper Tribunal made this decision on 17 January 2018. As it applies a new legal principle, it only applies to claims decided by DWP after that date.
Hopefully, in time, the DWP too may start thinking that an equivalent award of PIP to that previously received on DLA is the ‘usual’ situation. However, for now, it is likely that you will only see this new principle being applied in appeal hearings. If you have an adviser or representative, please make sure they are aware of this principle and that they bring it to the attention of the appeal panel if you are having to challenge a DLA to PIP award decision.
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