PIP success story and some reflections
An unwilling volunteer
My most recent fixed-term DLA award ran out in the summer: highest rate care and higher rate mobility for a 5 year period. In total, I'd had 12 years of highest rate care and higher rate mobility, and around 5 years of lowest rate care and higher rate mobility before that.
I reapplied for DLA, but for unknown reasons, the DWP rejected the renewal claim for DLA, treated it as a defective claim for PIP and issued the PIP2 How your disability affects you questionnaire. This was an error of law, despite it happening in early July after new DLA claims were impossible, as I had a Secretary of State's letter inviting me to renew.
I faced a difficult decision: request revision of the decision to reject the DLA claim, or claim PIP. it would have been easy for me to request revision - I'm over half way through a law degree, and this is hardly a complex point of law. However, had I got a new DLA award, I could, at best, have got myself as far as the forced conversions to PIP due to start in October 2015. The legal powers for these conversions already exist: there will be 8 weeks between the request to claim PIP and the cancellation of the DLA award for non-return of the PIP claim, giving limited opportunity to obtain evidence. Whilst it would be possible to submit a PIP claim with evidence to follow, it is easier to write your claim with the evidence in front of you.
As up to date consultant's reports had been prepared especially for the abortive DLA renewal. I chose to use these reports to claim PIP, making me a rather unwilling volunteer.
Important points to understand
I worked directly from the PIP Regulations, though cannot recommend this approach to anyone without a formal legal education. There are good PIP guides for the lay person available from various sources.
It is crucial to understand the PIP points allocation mechanism, as it does not use the simple "best fit" approach from ESA. The PIP system is hard to describe briefly, though it is based around the proportion of days each scoring descriptor applies. A full description is in regulation 7(1) of The Social Security (Personal Independence Payment) Regulations 2013 (SI 2013/377).
With PIP, you can only be assessed as doing something if you can do it safely, to an acceptable standard, repeatedly (as often as reasonably required) and in a reasonable time period (in no more than twice the maximum time taken by someone without a relevant disability). When put together with the points system's foundation in proportion of days, this serves to exclude occasional superhuman efforts, which might be particularly relevant to walking.
The PIP2 questionnaire - my approach
My disabilities do not allow me to write more than a handful of words, and, as each PIP2 is individually bar coded, there's no downloadable PDF version of the form. I created my own document which replicated the questions on the PIP2 and answered them. I joyously printed a load of labels saying "See enclosed document" and stuck them over each answer box on the PIP2 before signing and dating the PIP2.
My assessor commented that it was far more useful to receive a nicely laid out printed document than a poorly structured handwritten form of dubious legibility.
For each activity, I used the headings:
- Issues I face
- Aids and appliances
- Particular aspects
- Safety
- As often as necessary
- How well could I manage?
- The time it would take me
- The legal test
Issues I face were brief statements like "My ability to sense temperature is impaired", with an explanation of how that issue impairs my ability to carry out the task if it is not obvious. I placed these under headings relevant to my disability (Sensory, Muscular, Concentration, Fatigue, Pain) to keep things organised.
Aids and appliances listed all the aids and appliances I have, together with any that might be felt relevant by the assessor. In each case, I explained how well the aid or appliance would help me.
Particular aspects were brief statements to those four key considerations, such as (under Safety) "My sensory problems create a risk of burns", with an explanation relating that statement to the Issues I face.
The legal test made directly addressed each potentially relevant descriptor in turn. These comments always made explicit reference to the proportion of time I believed I satisfied that descriptor, with justification for the answer given.
There are many other valid approaches - I have no idea what the various guides suggest. This approach was the way I felt best able to make all relevant points.
I believe claiming DLA and PIP is about painting a picture, especially for someone like me who has a condition that does not fit into a neat diagnosis. If you explain clearly the problems you have, the effects of your problems and how they relate to the legal tests, it is harder for the decision maker to find against you, especially if your messages remain consistent throughout and your answers are grounded in relevant medical evidence whenever possible.
I believe it is important to concede points quickly when that is the right thing to do. For example, I explained I can always stand and walk at least one metre. Nothing in the evidence suggested any problem with this and I would likely have had no problem if asked to do this at the face to face assessment.
Conversely, if there is some fact that appears to contradict your case, explain it. If you can manage something only twice a week, explain why this is the case and the problems you have with that task. That approach is better than leaving apparent inconsistency in your story.
It is important not to stray into irrelevant matters. There is no point going on about how far I live from the nearest bus stop (unless I am using that distance as a benchmark of my walking ability) or how bad the bus service is, because the availability and quality of public transport are not relevant to the award of the PIP mobility component.
The face to face assessment
My assessor, a physiotherapist, had clearly spent a considerable amount of time going through my document and medical evidence, and had some specific questions for me at the beginning of the assessment once the formalities were out of the way.
Following these specific questions, she asked me to discuss my problems without referring to my document or other notes. This was difficult, as I was tired and many of the problems I face with the various activities are the cumulative effect of several issues. I appreciated that she was attempting to test the credibility of my written answers: had I been unable to discuss the key messages without notes, it would have created doubt over those written answers. As I had been careful to state the extent of my problems without exaggeration, I had nothing to hide.
She asked me if there was anything I wanted to add to the answers I had given, so I said that my full explanations were in my written submission. It was most helpful to be able to rely on the document at this point.
My muscles had locked up whilst I had been sitting in my wheelchair, so the assessor said she would be happy to skip the physical examination entirely. Not wanting to turn down the opportunity for her to get "hands on" with my problems, I said I would rather she proceeded but would let her know if it got too much.
She tested the range of movement in my hands, arms and shoulders, which was severely restricted in some cases with one axis of measurement being recorded at 10% of normal.
She moved on to my legs and feet, which she tested with me sitting in my chair. She stated that, in her opinion and taking into account her findings that far, it would be unethical to ask me to attempt to stand or walk, which brought the physical examination and the face to face assessment to a close. It had lasted around 90 minutes.
The result
As those going through the PIP process will know, there are huge backlogs at present. It took over six weeks from the assessment to the decision:
- medical on 4 November
- report received by DWP from ATOS on 6 December
- decision dated 13 December
- decision received in the post on 19 December
I was awarded 23 points for the Daily Living activities, giving me the Daily Living component at the enhanced rate with 11 points to spare.
I was awarded 12 points for the Mobility activities, giving me the Mobility component at the enhanced rate.
This is the equivalent of my old highest rate care and higher rate mobility DLA.
The decision was "on an ongoing basis", with a check on entitlement on or after the tenth anniversary of the claim (July 2023). This is the equivalent of an indefinite DLA award, albeit with an up-front expectation set for an entitlement check.
The DWP's intention is to make open-ended awards much rarer under PIP. What little I have found on the subject suggests that "ongoing basis" should only be used when there is no more than a slight prospect of a change in condition, and that a long term fixed-length award should be used if there is a greater possibility of change over time.
I had supplied a report by a consultant neurologist who has been the lead clinician in my care for the past seven years, stating that in his opinion there had been no reversible causes found for my symptoms after exhaustive investigation. After some discussion about how my symptoms fluctuate around a baseline that is either constant or slowly deteriorating, he concluded that there is no realistic prospect of improvement in my condition. I suspect this may be the sort of standard DWP are looking for in order to make an "ongoing basis" PIP award, despite it typically being very hard to obtain such an emphatic prognosis.
The DLA to PIP conversion process
This is the best information I can find on the DLA to PIP conversion process as it currently stands.
DLA to PIP conversions
DWP's Reassessing existing DLA claimants for PIP: fact sheet version 6.0, dated January 2014, provides a useful insight into DWP's current plans.
Those who were 65 or over on 8 April 2013 will remain on DLA for as long as they are entitled to it. They will not migrate to PIP. New claimants over 65 continue to claim AA.
New and renewal claimants under 16 continue to claim DLA.
New claimants aged between 16 and 64 claim PIP.
Everyone on DLA who is reassessed for PIP can be awarded either rate of the Mobility component. This is important to those who were under 65 on 8 April 2013 but are over State Pension age by the time they are reassessed for PIP, as it gives them a single chance to get a new or increased award of the Mobility component. Normally, those over State Pension age cannot get new or increased awards of the Mobility component - they can only get the same or lower rate of the Mobility component on any reassessment.
DLA to PIP conversions - 'natural reassessment'
The first waves of DLA claimants to convert to PIP, known as 'natural reassessment' because an event triggers the conversion, are those:
- with expiring DLA fixed-term awards
- reporting changes of circumstances
- reaching their 16th birthday (unless terminally ill)
- volunteering to convert from DLA to PIP
The original intention was that all these groups would claim PIP from 6 October 2013, though, as is widely known, the current lengthy delays in handling PIP claims has led to a slower area by area approach, which involves:
The DWP is fond of stating that PIP will not affect most claimants until October 2015. This is somewhat disingenuous, as renewal claims are already starting to be redirected to PIP in some areas.
Those with expiring DLA fixed-term awards who must claim PIP are sent a letter 20 weeks before the DLA award expires inviting them to phone to start a PIP claim. The process works the same way as described below for 'managed reassessment', including extension of the DLA award until the PIP decision is made. The only difference is that no letter giving two months warning of the letter giving the time limit to start a PIP claim.
DLA to PIP conversions - 'managed reassessment'
The conversion of those with unexpired DLA awards to PIP, known as 'managed reassessment' because it triggers randomly at the DWP's behest, is due to start in October 2015. The last DLA claimants are due to make their 'managed reassessment' claims for PIP in September 2017. Whether these dates slip remains to be seen.
The DLA claimant will receive a letter indicating that they should expect a second letter requesting them to claim PIP in two months' time. This should be the trigger to request any supporting evidence they wish to use for their PIP claim, as it can take a while to get hold of supporting evidence.
The second letter will give the claimant 4 weeks to start their PIP claim.
Should the claimant fail to claim PIP within 4 weeks of the second letter, the DLA award is suspended and they will get a third letter giving them a further 4 weeks to claim PIP. If they make a PIP claim within the 4 weeks allowed, their DLA restarts with any back money being paid. If they fail to make a PIP claim, their DLA award is cancelled without further payment.
Once a 'managed reassessment' claimant makes a PIP claim, they will continue to be paid DLA until a PIP decision is made. The intention is to extend DLA awards if necessary to ensure there is no break of payment whilst a PIP decision is made.
DWP have indicated that those who have a fixed-term award expiring after September 2017 or who have a lifetime award under the Special Rules for terminal illness will be reassessed towards the end of this process.
This approach is consistent with DWP's belief that a far greater proportion of long standing DLA awards were lifetime or indefinite than was really justified, and that many of these awards have not been subject to any structured review process since being made (though review activity under the Right Payments Programme seems to have increased recently). The figures I recall being quoted are that 71% of all DLA awards have a lifetime or indefinite component, but only around 25% of DLA awards made in recent years has an indefinite component. Unfortunately, I can't find a source for these figures.
Even if I have misremembered the figures, it is clear a sizeable move away from indefinite awards of DLA has taken place in recent years. As I mentioned in the earlier post, PIP might make more use of long fixed-term awards, further reducing the proportion of awards that are open-ended.
DLA to PIP conversions - implementation of the decision
When the PIP decision is made, a notification letter is issued. The claimant gets their next normal DLA payment after this notification, then 28 days of DLA (i.e. one more four weekly payment) after that. At the end of this 28 day period:
- the DLA award is permanently cancelled
- PIP entitlement commences if PIP was awarded
- consequential entitlements, such as entitlement to Motability and to premiums on means tested benefits, change to reflect the PIP entitlement
Lifetime and indefinite DLA awards have never been immune from review or cancellation
No DLA claimant aged 64 or less on 8 April 2013 is exempt from the PIP reassessment processes, though it remains a common misconception is that a lifetime DLA award cannot be reviewed or amended.
Open-ended DLA awards were initially described as "for life" by section 71 of the Social Security Contributions and Benefits Act 1992, but this description was changed by section 67 of the Welfare Reform and Pensions Act 1999 to "for an indefinite period". As the explanatory note accompanying this change makes clear, a DLA award made "for life" remains subject to an ongoing requirement to satisfy the criteria for that award, and the "for life" description does not shield that award from review or amendment. There is therefore no difference between lifetime and indefinite DLA awards.
There will be some who believe that because they have an open-ended award of DLA that they are entitled to stay on DLA forever, especially if that DLA award was awarded "for life". However, it is a fundamental principle of British constitutional law that no Parliament can bind its successors. Even if Parliament had attempted to ensure that lifetime DLA awards really were for life when the benefit was created in 1992, this could not have stopped Parliament from starting the process of replacing DLA with PIP in 2012.