Strategies for challenging PIP no points

I have just posted off my request for a copy of the assessor’s report. Oddly, the decision letter said on the first page they had considered the evidence in the ‘How your disability affects you form’ but didn’t mention any other evidence. But the decision maker’s reasoning clearly mentions ‘the assessment’ several times.

I take Gordon’s point about fighting only battles you can win. My worry about leaving the no-points-for-cooking unchallenged is that it might be held against me at some later date, renewing ESA or whatever.

So I’ll start drafting an argument about the mobility, on the basis that they don’t know their own rules, and maybe a brief paragraph setting the record straight about the cooking.

Thanks again

‘If a descriptor applies at any point during a 24 hour period, it is considered to apply for the entire day, whereas in DLA it would have to apply for ‘the majority of the day’ in order to apply’ - I’ve tracked down the DWP guidance to paragraph 4.16 of the Government’s response to the consultation on the Personal Independence Payment assessment criteria and regulations which B&W has a link to.

Is this sufficient chapter and verse to quote in my Man Recon request, or is there any decision-maker’s rule-book generally available, do you know?

Also, does this guidance apply to cooking? They say I can cook in the afternoons, which kind of implies they accept I can’t in the mornings. (I actually can’t cook at any time.) But perhaps the other part of the guidance you quote means it's acceptable only to cook in the afternoons?

Hi Elaine,

Gordon has asked for my input on this issue.

In its response to the consultation on PIP, the government said:

‘If a descriptor applies at any point during a 24 hour period, it is considered to apply for the entire day, whereas in DLA it would have to apply for ‘the majority of the day’ in order to apply’

The PIP Assessment Guide states:

3.2.10. A scoring descriptor can apply to claimants in an activity where their impairment(s) affects their ability to complete an activity, at some stage of the day, on more than 50 per cent of days in the 12 month period.

It goes on to say:

3.2.12. The timing of the activity should be considered, and whether the claimant can carry out the activity when they need to do it. For example if taking medication in the morning (such as painkillers) allows the individual to carry out activities reliably when they need to throughout the day, although they would be unable to carry out the activity for part of the day (i.e. before they take the painkillers), the individual can still complete the activity reliably when required and therefore should receive the appropriate descriptor.

I don’t think there is a contradiction in all this. The crucial words in the guidance – and it is only guidance from the DWP and not the law - are ‘whether the claimant can carry out the activity when they need to do it’.

So, if a claimant cannot carry out an activity at some stage of the day when they need to do it, then they should score points. This is clearly the very least that the government intended, as they made clear in their consultation response and there is nothing in the regulations to prevent such an interpretation.

I would argue that ‘need’ here just means it would be reasonable for you to do so, not that you would suffer some harm if you didn’t do it.

In the Benefits and Work guide we give the example of someone who can’t put on a shirt or jumper first thing in the morning, but could after an hour or two. But most people want and need to get dressed first thing, not wait two hours to do so. So they should score points for ‘dressing and undressing’ because there is a part of the day when they need to do it but can’t.

Another example: you might be not be able to give yourself an injection first thing in the morning because your fingers are too stiff, but by mid-morning they have eased enough for you to be able to do so. If you need to have the injection first thing and therefore need help, you should score a point for this because you need assistance to manage medication.

However, if you don’t need to have the injection until lunchtime, when you are able to do it yourself, then the fact that you wouldn’t be able to do it first thing in the morning is less likely to score you a point.

In this particular case Elaine, the issue seems to be whether you can reliably cook or walk when you need to.

I would argue that people reasonably ‘need’ to be able to walk more than 20 metres at any time of the day, not just after 11am.

In regard to cooking I would equally argue people reasonably ‘need’ to be able to prepare a simple meal at breakfast and at lunchtime, not just in the afternoon.

In the end, if the decision maker does not accept this argument it will be up to a tribunal to decide how they think the law should be interpreted.

As yet, there haven’t been any upper tribunal decisions on this issue.

The closest we’ve had is one saying that the broad brush approach of the Moyna decision doesn’t apply to PIP. Instead there is a strict over 50% rule about the number of days that a descriptor needs to be satisfied. But this decision did not address how much of each individual day a descriptor needs to be satisfied in order to count.

Thanks for raising this issue, we will be updating the PIP guide to clarify this.

Good luck with your challenge.

Steve

Thank you so much for going to the time and trouble of such a detailed reply, it’s really helpful.

I first thought I would focus on the mobility component and just do a brief paragraph arguing against the no points for cooking, but now I’ve realised that, because they are using walking as a comparator, however bizarrely, then I really need to challenge the cooking thing thoroughly, or else they might use it as evidence against the mobility component.

Also, reading your reply, it suddenly leapt out at me that the descriptor is actually cooking a ‘simple’ meal, whereas the decision-maker’s reasoning says a ‘main’ meal – very devious.

Thanks again

Elaine