In relation to RJ vs SSWP caselaw.09/03/2017.
DWP new rules as from 13/11/2017.
Due to a recent Three-Judge Upper Tribunal Panel Decision, the DWP has had to re-look and review all PIP decisions made between 9th March 2017 to 12th November 2017.
This means some cases may have their award increased due to wrongful decisions based on this new case law.
The Upper Tribunal Decision decision deals with the definition of “safely” and the linked term “supervision” and the measurement of risk to assess those terms.
The case law affects PIP Activities 1 to 5 and Activity 11 i.e. cooking, nutrition, medication, washing, toileting, and Mobility. It requires DWP to look at claimant’s ability to perform tasks ‘safely’ due to the severity of harm that might arise and the need for supervision.
In a nutshell, any difficulties that were not for the majority of the time eg 4 days a week or more, would previously not have scored PIP points, now with this judgement, this is no longer the case, as decisions have to be based on the likelihood of an adverse event happening risk and safety resulting in need for supervision etc. Obvious cases relate to claimants with epilepsy, diabetes, mini-strokes but also extends to claimants with learning difficulties and others. All decisions will be on a case by case basis as before, for example, someone with an ample/advance warning of an epilepsy fit and/or whose epilepsy is well controlled with medications will score differently to someone with un-predictable seizures as their risk and need for supervision is higher.
Most claimants will NOT NEED to contact the DWP to ask them to re-look at their decision as it will be done automatically by a designated team tasked by the DWP as a result of this new case law, but it will take time to get through all cases that had decisions made under this time period ie 9/3/17 to 12/11/17
However, if you fall into the category of requiring a split decision award, where your claim decision was made before the 9/3/17 (when the new case law does not apply) but your award continues after the 9/3/17 (when the new case law does apply) then the DWP does need to hear from you to have your case reviewed. If you need support in this instance or representation to handle your case review, please be in touch or visit our website
As of 13th November 2017, all assessment by health professionals will have this new case law applied. DWP have confirmed all health professionals are trained in this new legislation guidelines and it is now an active part of the decision making process.
Further links and details about the case law are listed below for your reference.
We hope this up to date info hot off the press is helpful
REASONS FOR DECISION
Entitlement to Personal Independence Payment (PIP) is determined by
assessment of a claimant’s ability to carry out specified daily living and mobility activities. A claimant is not to be assessed as able to carry out an activity unless she or he can do so safely. The central question in these appeals concerns the meaning of “safely” in this context, in particular, the correct approach to the assessment of the likelihood of harm in the definition of “safely”.
At the date of the Secretary of State’s decision on 20 July 2015, RJ was 20 years old. She suffered from epilepsy with, at that time, seizures occurring less than once a week. The seizures were unpredictable and she had no warning of them. If the seizure occurred, depending on where she was and what she was doing, she would be at risk of harm. The possible harm could be serious particularly if a seizure occurred when she was cooking a meal, eating or drinking, or bathing. In her PIP claim, she stated that “every day is a potential seizure day”. The Secretary of State awarded her 2 points for daily living descriptor 1c and none of the mobility activities, and so she was not entitled to PIP.
RJ appealed, DWP argued against the appeal and the Upper Tier Tribunal panel made a judgment, meaning as of 9/317 all claimant’s cases must have this new rule applied.