The Painstaking Perils of PIP

Picture the scene. It’s a bright and colourful Saturday morning. Plans for the day probably involve enjoying a little too much coffee, or more precious dozing. The clink of the letterbox, followed by the familiar thud pulls you out of bed and as you approach the door, you freeze. On the mat lies a nondescript brown A4 envelope. The flimsy window giving a glimpse of the off-white paper within. Panic and fear begin to radiate from your stomach outwards. “Has it been two years?” Panicked thoughts race through your head as your eyes dart to the car outside, your carer, your electric wheelchair, as you steel yourself for yet another few months of uncertainty and despair.

This may read like an article from the red-topped tabloids. But for some, this scenario will be far too familiar. You have a disability, and the brown envelope is your (re)assessment for Personal Independence Payment (“PIP”).

What is PIP and Why should I care?

For those already claiming PIP, this will be all-too familiar. For those who aren’t, PIP is an in-work benefit to provide extra support to those with care or mobility needs. It replaced Disability Living Allowance for people aged 16 or over and was introduced as part of the Welfare Reform Act 2012. One of the key aspects of the change was the use of prescribed assessment centres instead of reliance on a claimant’s own medical professionals. In doing this, the government outsourced the assessments to third-party companies, ATOS and Maximus being two which have garnered the most media attention to date. The problem lies in that these reports are often cursory, formulaic and offer no real opportunity for the claimant to explain how their disability affects them in detail. The Department for Work and Pensions then use this report to make a decision taking into account all the submitted evidence. In reality however, the decision often follows the assessment report with little weight placed on the claimant’s own evidence. Additionally, claimants often find inaccuracies or inconsistencies in the final report in contrast with the events of the assessment. This leads to frustration at the lack of empathy and more importantly, incorrect decisions by the Department, necessitating appeal.

It is possible to take steps to ensure a fair assessment and report, such as taking a friend or carer to make notes or take a record of the assessment. Making audio recordings of PIP assessments is notoriously difficult, however. Assessment centres often insist on the use of a PACE compatible recorder, many of which carry a significant price tag in the hundreds of pounds. Local Law Centres and disability charities are stepping up to loan these to claimants free of charge however, so if faced with this, please ask around for help.

Another aspect of the change was the introduction of a rigid points-based system. PIP is broken down into two main components, care and mobility. In each component there are activities such as cooking, interacting socially, or moving around. These activities are then broken down into descriptors, with each descriptor being worth a specified number of points. Taking mobility as an example, these range from “can stand and move more than 200 metres either aided or unaided” to “cannot either aided or unaided stand or move more than 1 metre” with the number of points awarded ranging from 0 to 12 respectively. The awards made under PIP are separated into two levels: standard rate and enhanced rate with each award being made once a claimant reaches a specified points threshold. Those who receive enhanced rate mobility are eligible to use this to pay towards the hire of a Motability car or electric wheelchair. For those who do, losing points in this descriptor can lead to massive knock-on effects, with claimants often also losing their mobility, and accordingly, their freedom.

PIP can be claimed by those who have a long-term mental or physical illness which has lasted, or is expected to last, for twelve months or longer and affects day-to-day living or mobility. It provides valuable payments to cover the additional cost of living with a disability, such as paying for last-minute transport, special adaptations, or even support and help around the house.

Legislation

The Social Security (Personal Independence Payment) Regulations 2013 (“the Regulations”) provides the legal framework on which decisions about PIP should be made. There are two core sections which can often be relied upon to challenge PIP decisions: Regulation 4(2A) and Regulation 7. Decisions in these areas are evolving and there are far too many issues to distil here, however this brief overview hopes to provide some guidance.

Regulation 4(2A) – Assessment of ability to carry out activities. 

Under regulation 4(2A), when assessing a claimant’s ability to carry out an activity. The assessment must only conclude that the claimant can satisfy a descriptor if the claimant can carry out the descriptor:

(a)   safely;

(b)   to an acceptable standard;

(c)    repeatedly; and

(d)   within a reasonable time period.

These are defined at regulation 4(4) as:

(a)   “safely” means in a manner unlikely to cause harm to the claimant or to another person, either during or after completion of the activity;

(b)   “repeatedly” means as often as the activity being assessed is reasonably required to be completed; and

(c)    “reasonable time period” means no more than twice as long as the maximum period that a person without a physical or mental condition which limits that person’s ability to carry out the activity in question would normally take to complete that activity.

Regulation 4(2A)(b) does not have a statutory definition. This has been considered in several cases particularly in reference to how pain affects the ability to complete an activity reliably. PS v SSWP [2016] UKUT 0326 (AAC) examined the effects of chronic pain on the ability to “mobilise to an acceptable standard.” It was found that a claimant who pushes through significant pain in order to satisfy a descriptor, cannot be found to do so under regulation 4(2A)(b). In making her decision, Judge Markus adopted the reasoning of Judge Parker in CPIP/2377/2015 that it might be possible for a claimant to be able to carry out an activity within a reasonable time period and repeatedly, but by stoically pushing through pain, breathlessness, nausea or cramp. In these cases, the claimant may not be able to perform the activity “to an acceptable standard” and therefore cannot be found as satisfying the descriptor.

As PIP appeals continue through the years, case law has developed to iron out ambiguities in interpretation. The meaning of “safely” was considered in 2017 in conjunction with epilepsy and risk to the person. RJ v SSWP [2017] AACR 32 considered the likelihood of harm. In this case, RJ suffered from epilepsy with seizures occurring less than once a week (relevant for Regulation 7, below). The seizures occurred randomly and without warning. Nevertheless, the Department decided that the claimant was not entitled to PIP as she did not satisfy the descriptors as required. In the first instance, when assessing risk, the Department considered the likelihood of a seizure as opposed to the harm arising through having one. The panel concluded that an assessment of harm need not require that the occurrence of harm is more likely than not. In assessing whether a person can carry out an activity safely, a tribunal must consider whether there is a real possibility of harm occurring, having regard to the nature and gravity of the harm in the particular case. To put it simply, it may be the case that a claimant has seizures twice a year, but if those seizures occur whilst crossing the road, the harm caused could be fatal.

More often than not, a claimant may be able to satisfy a descriptor, but only under certain circumstances. They may take rest breaks or be in significant amounts of pain when performing the activity for example. In these circumstances, it is likely that the claimant cannot perform the task in accordance with regulation 4(2A) and real consideration should be given to an appeal on this basis.

Regulation 7(1) – More than 50% of the time

If a claimant has a variable condition, it is likely that they will have good days and bad days. On a good day they may be able to do most things expected of an able-bodied person, but on a bad day they may be severely limited or bed-bound. Regulation 7 states that if a claimant satisfies a descriptor on over 50% of the days throughout the past few months, then the descriptor is so satisfied. Essentially, in variable condition cases, the onus is on the claimant to show that although their condition does vary in severity, the worse effects are present more often than not. Appeals brought on this basis can be successful particularly in cases of Multiple Sclerosis, Fibromyalgia or Chronic Fatigue Syndrome where the illness is highly variable and often invisible.

Where a claimant suffers from multiple conditions affecting their ability to perform an activity that are not mutually exclusive, it is necessary to apply a probability calculation in order to arrive at the proper conclusion. It is not sufficient to simply add together the affected days. The calculation is outlined by Judge Ward in AK v SSWP [2015] UKUT 0620 (AAC) as:

Probability (A or B) = Probability(A) + Probability(B) – (Probability A and B).

To break it down, the probability of illness A and B occurring on a particular day is calculated as the probability of A or B occurring on a day, minus the probability of them both occurring at the same time. This prevents “double-counting” or overcompensating for multiple illnesses and is a serious consideration for claimants with a range of comorbid illnesses.

What to do if a decision is wrong

The first step in challenging a PIP decision is to ask the Department for a Mandatory Reconsideration (“MR”). This is a compulsory step which allows the Department to correct any mistakes which may have been made. At this point, it is usually beneficial to outline the grounds relied upon and provide additional evidence to assist the decision maker. It is likely that the MR will take over two months and often only to be returned without any significant changes to the decision. This is where the Tribunal become involved.

Challenging a decision at Tribunal is often protracted, stressful and unfamiliar for a claimant. Delays of up to a year are not uncommon and once there, imposing court buildings or makeshift hearing centres do little to instil confidence or reassurance. That said, more than 75% of cases taken to tribunal are decided in the claimant’s favour (as of January 2020). At this stage, having solid representation and good advice is crucial to putting the best case forward to the Tribunal. Surprisingly, many claimants do not realise that the Tribunal is an independent body separate from the Government. It also often comes as a shock that the panel are making the decision afresh and that there is a qualified doctor asking questions, unlike the healthcare professionals found in the assessment centres. Again, having representation to explain this can make the world of difference to a nervous claimant.

The world of Personal Independence Payment is complex and the realities of a poor decision are harsh. Lack of legal aid funding to challenge poor decisions means that claimants are turning to pro-bono advice clinics such as those run by universities, Citizens Advice Bureaux or local Law Centres. Pro-bono advice provides an invaluable service for claimants many who have mental health difficulties and struggle to challenge these decisions, only to be given a two-year award and face the entire assessment process again in 12 months. Provision of services in this area is often a balance of giving legal advice and offering moral support and this can be the most challenging aspect.

But it does make a difference. Especially to those who need it most.

Chris Wallace

Chris is a pro-bono PIP Appeals Caseworker at the Greater Manchester Law Centre and is a qualified barrister having completed his training at the University of Law in Leeds.