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Personal Independence Payment: challenging a decision

In this article, Jane Owen-Pam, former National Autistic Society's Welfare Rights Co-ordinator, provides information to help professionals support autistic people and their carers when applying for Personal Independence Payment (PIP).  It includes guidance on how to challenge the Department of Work and Pensions (DWP)'s decision as well as how to appeal.

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Author: Jane Owen-Pam

Personal Independence Payment (PIP): Challenging a decision

Personal Independence Payment (PIP) is a benefit for working age people who have a disability or long-term health problem and have difficulty or need help with daily living activities and/or getting about.
 
This particular article will focus on how to challenge a PIP decision, it is take from the National Autistic Society guidance and if you would like further information on making a claim, entitlement and payment please see the full PIP information on the National Autistic Society website.
 
Challenging a PIP decision
 
It can be necessary to challenge incorrect decisions about PIP awards. Most people are successful in getting the decisions overturned, but it can be a complex process. Challenging the decision is a two stage process, first there is a ‘mandatory reconsideration’ and then an appeal. 
Mandatory reconsideration
 
It is important to note that whenever a PIP decision is challenged, the DWP can review the whole award, so it is possible to end up with a lesser award or none at all. It is worth being careful and consider how strong a case is for being awarded enough points to get a higher award.
 
1. The decision letter
 
When a decision is made about the award the office must send a decision letter to the person claiming or their appointee. This letter is needed to proceed.
 
2. Requesting a mandatory reconsideration
 
To challenge the decision a 'mandatory reconsideration' must be requested. This is an internal review of the decision. This can be done by phone, but it is best to do so by letter if possible. This request must be made within one month of the date on the decision letter. There’s no need to worry about providing information at this point, the deadline is just for asking for the reconsideration. More information can be sent later in a letter.
 
The letter asking for reconsideration should include: 
  • full name, address and national insurance number of the person claiming PIP
  • that the person (or their appointee) requests a mandatory reconsideration of the PIP decision, and state the date printed on the decision letter 
  • a request for copies of all the evidence used to make the decision
  • that the person (or their appointee) disagrees with the decision because they don’t think that the assessor has properly understood their difficulties and support needs. 
3. Further information and evidence
 
After checking against the points criteria, evidence should include what points should have been scored and a letter to PIP listing these points with explanation for each one. 
 
It is not necessary to repeat all the reasons for claiming, just a summary. If there is enough time, this information can be included with the initial letter asking for the reconsideration.  If not it can be sent with second letter later.
 
The PIP office might try to ring to talk about the mandatory reconsideration, there is no obligation to talk to them and it is better to tell them anything in writing. 
 
The letter should include information to back up the points you identified if possible. Any sort of information can be relevant as long as it relates to the points. If all the available evidence has already been sent, it is still possible to get the decision changed by challenging how they have interpreted the existing information.
 
Evidence can be anything that will help the difficulties and support needs be understood. It doesn’t have to be written specifically for PIP. Here are some examples:
 
  • diagnostic reports / assessments
  • information about current or past education support such as an Education Health and Care Plan or Statement of Special Educational Needs
  • care plan from social services
  • needs assessment from social services
  • assessments, plans or letters relating to support needed at university
  • assessments, plans or letters relating to support needed in employment
  • a diary detailing the help needed
  • a copy of medical records.
The appeal process
 
An appeal can only be requested once there has been a reconsideration and a new decision has been issued. The appeal must be requested in writing. It is easier to use the official form as the request must include certain information:
 
  • In England, Scotland and Wales use the SSCS1 Appeal Form.
  • For Northern Ireland use the NOA1 Appeal Form. 
Who should request the appeal?
 
This is the person who the decision letter was addressed to. If someone claimed for a child under 16 then they are the claimant and can make the request. An appointee for an autistic adult can make the appeal on their behalf. 
 
Should the decision be challenged?
 
When asking for a reconsideration or an appeal the decision-maker or tribunal could reduce, increase, stop or reinstate the benefit. Before asking for a reconsideration or appeal it is important to understand the potential risk compare this to how likely the appeal is to succeed in getting the decision changed. If the benefit has been stopped or refused altogether, then there is nothing to lose, but if the benefit has been awarded at a lower rate than what was expected, this could be lost or reduced.
 
How long might an appeal take to be heard?
 
There can be delays in reconsideration and appeal decisions. It is likely there will be a wait of a couple of months for an appeal hearing, some people have waited a lot longer. If the tribunal decide to award or increase the benefit entitlement the money will be backdated.
 
Can the benefit go down as well as up?
 
Yes. The decision-maker and the tribunal will look at the case afresh and can replace the decision with a new one. It is best to get advice to make an informed choice about the risk to existing entitlement.
 
Is it compulsory to attend the hearing?
 
It is better to attend the hearing. There is a greater chance of success as being at the hearing gives the opportunity to explain the case. If choosing not to attend then everything that the claimant wants to say should be put in writing and sent this to the tribunal in advance.
 
A parent/carer of a child under 16 or an appointee of an autistic adult can choose whether or not the person they are claiming on behalf of attends the hearing. It may be useful for them to be there if it might help the tribunal to understand their case. The tribunal can insist that the child or adult in question attends the hearing if that is the only way they think a fair decision can be made. 
 
What if I the claimant can't attend the hearing?
 
If the claimant can't attend the hearing and wants it postponed they must apply in writing to the clerk to the tribunal saying why they want a postponement. It is always best to ring before the hearing takes place to check if a postponement has been agreed. If the claimant does not attend and has not obtained a postponement, the tribunal is likely to hear the case without them.
 
Who can the claimant take with them to the hearing?
 
It's important to distinguish between a representative and other people who may come with the claimant to the appeal hearing. A representative is an adviser who is experienced in representing at tribunals and who knows about social security law. Organisations such as local advice centres, law centres and local authority welfare rights services may provide this service and will not charge for it.
 
A representative will explain the law, help to collect evidence and may represent the claimant at the hearing. It is not compulsory to have a representative; the hearing is set up to be accessible to a person without a representative. But the claimant has better chance of success they have representation.
 
The claimant can also take a friend, family member or professional to the appeal hearing. They can support them and help them to explain their case. They will not know about the law, but can help because they will know about the claimant’s situation.
 
Claims for reasonable expenses may be paid. The tribunal service may be contacted before the hearing to agree what they will refund. If they agree that the claimant is unable to use public transport they will pay for taxi fares. Any receipts or tickets must be kept to claim expenses.
 
Who will be at the hearing?
 
There is always a judge who is legally qualified, and up to two other members who are a doctor and a person who has experience of disability. Occasionally the Department for Work and Pensions (or Social Security Agency in Northern Ireland) will send a presenting officer. It is their job to attend the hearing, they will not be the person who made the decision that is appealed against.
 
What will happen at the hearing?
 
Tribunals tend to be held in a large office room. There is normally a big table in the middle, the claimant and anyone they bring with them sit on one side, and the tribunal members sit on the other side of the table. If the department for work and pensions officer is present they will sit on the same side of table as the claimant, facing the tribunal panel. The clerk often has another desk in the room and might come in and out of the room whilst the appeal is being heard.
 
The tribunal should consider all the facts, evidence, and law relevant to the case. They will ask questions to help them understand the situation and make a decision. They can usually only consider whether a decision was correct at the time it was made.
 
Remember that before the tribunal members meet the claimant, all they know about the case is what is in the appeal papers. It is important to think about to say to them to explain what the real situation is. It is useful to make a list of points to make, or things to explain in the hearing.
 
The tribunal members are genuinely independent and had nothing to do with the original decision. 
 
Any extra evidence should be sent to the Tribunal Service in advance. If the claimant arrives with lots of extra paperwork the tribunal are likely to postpone the hearing because they will not have time to read all the new evidence.
 
When will a decision be received?
 
Usually the decision is given at the hearing together with a decision notice confirming it. If the tribunal are not able to give a decision on the day the notice should be sent to later by the clerk.
 
What if the claimant is unhappy with the tribunal's decision?
 
The claimant has a right to ask for a statement of reasons for the decision if they are unhappy with it. They must do so in writing within one month of the initial decision notice and it should be provided within one month. They can then ask for the decision to be set aside or they can seek leave to appeal to the Upper Tribunal. They have one month from the date they receive the full decision to do this. Challenging a tribunal's decision is complex and it is best to get advice.
 
Useful resources
 
 

Date added: 21 July 2017