ADM Memo 3/18
pIP – the meaning of “safely” – PART 2 – DECISION MAKING
ContentsParagraphs
Introduction1 – 2
Decision making
GB Upper Tribunal Decision3
New claims
Deciding claims made on or after 9.3.174
Deciding claims made before 9.3.175
Reassessment cases6
Award Reviews and the Legal Entitlement
and Administrative Practices exercise7
Award reviews8
Mandatory reconsideration requests9 – 10
Unplanned review request made specifically
as a result of the Upper Tribunal Decision11 – 12
Advance claims13
Appeals
Appeals against decisions made on or
before 9.3.1714
Appeals against decisions made after 9.3.1715
Contacts
introduction
1This memo is to advise decision makers about a recent three judge panel Upper Tribunal (NI equivalent Social Security Commissioners) decision1 (“RJ”) that deals with the definition of “safely” and the linked term “supervision” and the measurement of risk to assess those terms.
1 RJ, GMcL and CS v SSWP (PIP) [2017] UKUT 0105 (AAC)
2Part one of this memo (ADM Memo 13/17) explained how to apply the terms of the decision and to make the descriptor choice. This memo, Part Two, explains the practical steps to take to get the effective dates of the decision correct.
Decision making
GB Upper Tribunal Decision
3The decision of the Upper Tribunal in RJ is not a “relevant determination” in Northern Ireland however it has been decided that the principles of the Upper Tribunal decision will be followed in Northern Ireland.
Decision makers are advised to apply the following legislation when undertaking a supersession using these principles and that the relevantdate is 9.3.17 as this is when the Department decided to apply the Upper Tribunal decision in this jurisdiction.
Regulation 23(1)(a) of the UC, PIP, JSA and ESA (Decisions Appeals) Regulations (NI) 2016 states:
“The Department may supersede a decision in respect of which there has been a relevant change of circumstances since the decision to be superseded had effect.”
Schedule 1 of these regulations further states:
“Effective dates for superseding decisions made on the ground of change of circumstances”
Part 2
Personal independence payment
18. Where the superseding decision is advantageous to the claimant and is made on the Department’s own initiative, the decision takes effect from the date on which the Department commenced action with a view to supersession.”
NEW CLAIMS
Deciding claims made on or after 9.3.17
4Claims to Personal Independence Payment which are made on or after 9.3.17 should be decided in accordance with the principles in the Upper Tribunal decision. The 3 month qualifying period condition for Personal Independence Payment can be met where, applying the approach in the Upper Tribunaldecision, the claimant would have been found to have limited or severely limited ability to carry out relevant activities in the 3 months prior to 9.3.17. For example, if the claimant made a claim on 9.3.17, and they are found to have limited, or severely limited ability to carry out relevant activities throughout the period from 9.12.16 to 8.3.17, then Personal Independence Payment is payable from 9.3.17.
Deciding claims made before 9.3.17
5The principles of the Upper Tribunal decision should not be applied to claim periods on or before 8.3.17 (but see the paragraph above regarding the qualifying period condition). This is because the Department must only apply the principles of the Upper Tribunal decision from the date that action was commissioned to identify those case that may be affected. This means that where claims are made before 9.3.17 the decision maker will have to determine the claim by consideration of the relevant descriptors in 2 ways. Firstly for the period up to and including 8.3.17 by consideration of the relevant descriptors using the approach applied before the Upper Tribunal decision, and secondly by consideration of the relevant descriptors from and including 9.3.17, in accordance with the principles of the Upper Tribunal decision. This may mean that in some cases the decision maker decides that there is no entitlement to Personal Independence Payment from the date of claim to 8.3.17 but that an award can be made from 9.3.17. Decision makers may find it helpful to consider the period from and including 9.3.17 first as, if there is no entitlement to Personal Independence Payment applying the reasoning of the Upper Tribunal decision, it is most unlikely that the claimant would have any entitlement to Personal Independence Payment on the basis of the pre 9.3.17 interpretation of the descriptors.
Example
A claim to Personal Independence Payment is made from 8.2.17. A decision maker is deciding the case on 25.9.17. The claimant’s case is affected by this Upper Tribunal decision – prior to this Upper Tribunal decisionthey satisfied the standard rate of the daily living component and following this Upper Tribunal decision they will score more points sufficient to give them the enhanced rate of the daily living component. The decision maker applies the Upper Tribunaldecision from and including 9.3.17 but not to the period before 9.3.17. The claimant is awarded the standard rate from 8.2.17 to 8.3.17 and the enhanced rate from 9.3.17 onwards.
Reassessment cases
6In accordance with ADM P5062-3, in a Disability Living Allowance to Personal Independence Payment reassessment case the decision maker should apply the reasoning in the Upper Tribunal decision and award Personal Independence Payment where appropriate following the 28 day run on period1.
1 PIP (TP) Regs (NI) 16, reg 17(1),(2) & (4)
Example
The claimant is entitled to Disability Living Allowance and is invited to claim Personal Independence Payment on 1.11.16 (i.e. before the date of the Upper Tribunal decision). The decision maker makes a decision on 3.4.17 (i.e. after the date of the Upper Tribunal decision) that following the principles of the Upper Tribunal decision she is entitled to the enhanced rate of the mobility component of Personal Independence Payment. In accordance with ADM P5062 - 5063, the first pay day after the determinationis 5.4.17 therefore the claimant’s Disability Living Allowance will terminate on 2.5.17 and the payment of the enhanced rate of the mobility component of Personal Independence Payment will commence on 3.5.17.
Award Reviews and the Legal Entitlement and Administrative Practices exercise
7Decisions made in the period on or after 9.3.17 (the date of the Upper Tribunaldecision) to the date of this guidance being issued and all Personal Independence Payment awards in payment on 9.3.17 will be looked at again in an independent exercise (called a Legal Entitlement and Administrative Practices exercise). Award reviews should be decided as set out below and it is important to understand how the Legal Entitlement and Administrative Practices exercise interacts with these decisions.
Award reviews
8On planned and unplanned award reviews where the claimant has not specifically asked for their award to be looked at in the light of the Upper Tribunaldecision, it may be that the claimant benefits from the Upper Tribunal decision. However, given the planned Legal Entitlement and Administrative Practices exercise, it has been decided that a supersession decision made on review should only be effective from the date that would normally apply when superseding on the grounds raised by the review. Any increase in entitlement for a period prior to that will be captured in the Legal Entitlement and Administrative Practices exercise.
Example 1 - Planned review - condition has deteriorated
A planned award review is initiated on 1.9.17. The AR1 indicates that the claimant’s condition has deteriorated (such that the 3 month qualifying period has been met by 1.9.17). The decision maker makes a decision to supersede the award on the grounds of a relevant change from 1.9.17, taking into account both the Upper Tribunal decision and the deterioration. The period from 9.3.17 to 31.8.17 will be considered in the Legal Entitlement and Administrative Practices exercise.
Example 2 - Unplanned review - condition has deteriorated
The claimant notifies a deterioration in their condition and increased needs on 13.9.17. The increased needs arose from 1.6.17. The decision maker determines that the qualifying period was met on 1.9.17 and that the claimant applied for supersession within a month of that date. It is noted that the claimant would be affected by the Upper Tribunal decision prior to the deterioration. The decision maker makes a decision to supersede the award from 1.9.17 as a result of the change of circumstances. The period from 9.3.17 to 31.8.17 will be considered in the Legal Entitlement and Administrative Practices exercise.
Example 3 - Unplanned review - condition has deteriorated
The claimant (who has a mobility component award only) notifies a deterioration in their condition and increased needs on 1.9.17, but those increased needs date back to 1.12.16. The qualifying period was met from 1.3.17. Although the claimant did not report the change in their condition on time, the decision maker decides that the time limit for notifying the change can be extended. The new needs create an award of the daily living component at the standard rate, but it is noted that the effect of Upper Tribunal decision would be to raise the daily living component to the enhanced rate. The decision maker supersedes to award the standard rate with effect from 1.3.17 as a result of the change of circumstances, and makes a further supersession to award the enhanced rate from 9.3.17 as a result of Upper Tribunal decision. There is no period left for the Legal Entitlement and Administrative Practices exercise to consider because as a result of dealing with the normal supersession period under review, the Upper Tribunal decision period was covered completely.
Example 4 - Planned review - condition unchanged
The claimant has an award of the mobility component only. A planned review is initiated on 1.9.17. The AR1 indicates that the claimant’s condition and their ability to carry out activities has remained the same. Normally, all that would be needed would be a supersession decision to extend the period of the award. However, following theUpper Tribunal decision the claimant has satisfied the conditions for an increase since 9.3.17. The decision maker takes the Upper Tribunal decision into account and supersedes so as to award the increase from 1.9.17. The period from 9.3.17 to 31.8.17 will be considered in the Legal Entitlement and Administrative Practices exercise.
Mandatory reconsideration requests
9Decision makers must apply the principles of the Upper Tribunal decision to any period from 9.3.17 onwards when carrying out a mandatory reconsideration, and not leave any period to be considered by the Legal Entitlement and Administrative Practices exercise.
10A claimant might apply for mandatory reconsideration of a decision where the decision maker applied the Upper Tribunal decisionas in paragraph 8 and left a period to be considered in the Legal Entitlement and Administrative Practices exercise. As mandatory reconsideration is intended to be a thorough re-examination of all the issues involved in a decision, it has been decided that at this stage the decision maker should revise the decision and make one that covers the whole period from 9.3.17 onwards.
Example
A decision was made as in Example 1 of paragraph 8, following a planned review. This left the period from 9.3.17 to 31.8.17 to be considered in the Legal Entitlement and Administrative Practices exercise. The claimant applies for mandatory reconsideration. The decision maker notes that the claimant is entitled to an increase from 9.3.17 to 31.8.17 as a result of Upper Tribunal decision. They revise the decision and make a supersession decision that takes the Upper Tribunal decision into account from 9.3.17 to 31.8.17, and a further supersession taking both RJ and the deterioration into account from 1.9.17 onwards.
Unplanned review request made specifically as a result of the Upper Tribunal Decision
11Some claimants may contact the Department asking for their case to be looked at again solely on the basis of the Upper Tribunal decision. The decision maker should determine whether the claimant is entitled to an increasein their current award in the light of Upper Tribunal decision. If the claimant is entitled to an increase on account of the principles of the Upper Tribunal decision and the previous decision was made:
1.before 9.3.17, the decision should be superseded1 with effect from 9.3.17or
2.on or after 9.3.17,the decision should be revised on the grounds of official error2.
1 UC, PIP, JSA & ESA (D&A) Regs (NI) 16, reg23, Sch 1, Part 2, para 18; 2 reg 9(a)
Example 1 - previous decision made on or after 9.3.17
A claim to Personal Independence Payment was made on 4.1.17. The decision maker decided on 6.6.17 that the claimant is entitled tostandard rate daily living component and nil rate mobility componentPersonal Independence Payment. Following an application from the claimant asking for a review in the light of the Upper Tribunal decision the decision maker looks at the case again and realises that the principles of the Upper Tribunal decision ought to have been taken into account in the decision of 6.6.17, since it was made after the date on which the Department had decided to follow the principles of the Upper Tribunal decision. When taking the Upper Tribunal decisioninto account, the claimant is entitled to an increase in the rate of Personal Independence Payment from 9.3.17. The decision maker revises the decision of 6.6.17 on the grounds of official error and makes a decision awarding the standard rate daily living component and nil rate mobility component from 4.1.17 to 8.3.17 and enhanced rate daily living component and standard rate mobility component Personal Independence Payment from 9.3.17.
Example 2- previous decision made before 9-3-17
A claim to Personal Independence Payment was made on 2.2.17. The decision maker decided on 28.2.17 that the claimant is entitled to standard rate daily living component and nil rate mobility component of Personal Independence Payment. Following an application from the claimant asking for a review in the light of the Upper Tribunal decision the decision maker looks at the case again supersedes the decision of 28.2.17 on the grounds of relevant change of circumstances and awards theenhanced rate daily living component and standard rate mobility component of Personal Independence Payment from 9.3.17 as this is the date that the Department commenced action with a view to superseding.
12If, following a claimant’s application, the decision maker determines that theUpper Tribunal decision, does not affect the previous decision, they should make a decision not to supersede or reconsidered no change.
Advance claims
13Fixed term awards may generate advance claims. A notification is generated 14 weeks before the end date of the award which tells the claimant that entitlement is due to end and they should submit a new claim if they want to. If a new claim is made on time and it is decided that entitlement should continue, a new award will be made from the day after the end of the current award.
Example
An award of Personal Independence Payment is due to end on 1.10.17. The claimant makes an advance claim on 1.9.17. The decision maker decides that a further award of Personal Independence Payment is appropriate from 2.10.17. Upper Tribunal decision applies to the case and would result in an enhanced award. The decision maker should not apply the principles of the Upper Tribunal decision to the case from 9.3.17 to 1.10.17 as this will be considered in the Legal Entitlement and Administrative Practices exercise. The enhanced rate should apply from 2.10.17.
APPEALS
Appeals against decisions made before 9.3.17
14Where the claimant has appealed against a decision that was made before 9.3.17, the Appeal Tribunal must take theUpper Tribunal decisioninto account when deciding it. If the Upper Tribunaldecision affects the current decision, the Appeal Tribunal will be able to apply it to the claim from 9.3.17 as this is the date of the relevant change of circumstances.
Appeals against decisions made on or after 9.3.17
15Where the claimant has appealed against a decision that was made on or after 9.3.17, the Appeal Tribunal must take the Upper Tribunal decision into account when deciding it but cannot apply it to periods before 9.3.17. Where the Upper Tribunal decision applies and there is an appeal to the Appeal Tribunal against a decision made on or after 9.3.17 that covers a period before 9.3.17, theDepartment’s response to the Appeal Tribunal should ask them to take the Upper Tribunal decision into account but to apply to it from 9.3.17 only.
CONTACTS
If you have any queries about this memo, please contact:
Decision Making Services
Section 2
Level 5
The Lighthouse Building
1 Cromac Place
Belfast
BT7 2JB
Telephone: (02890) 829496
DECISION MAKING SERVICESDistribution:All Holders of ADM Chapter P5
March 2018
The content of the examples in this document (including use of imagery) is for illustrative purposes only
1