Seven months after it lost a personal independence payment (PIP) court case, the DWP has begun searching for claimants who should be getting a higher award. But many claimants, especially those who previously received no award, are likely to miss out.
Safety and supervision
Back in March 2017 the DWP lost a vital upper tribunal case relating to safety and supervision.
Until then, the DWP had argued that a claimant could only score points for being unsafe if harm was likely to occur on more than 50% of the occasions on which they attempted an activity.
A claimant who has epilepsy which causes seizures once or twice a week, for example, may not attempt to cook unsupervised because they know that if they have a seizure they could come to serious harm.
However, the DWP had been refusing to award points to claimants with epilepsy on these grounds, unless the claimant could show that it is ‘more likely than not’ that they would have a seizure on any given occasion when they prepare food.
This is an almost impossibly harsh test, as is shown by the thousands of claimants with epilepsy who have had their payments removed entirely on being moved from DLA to PIP.
However, in March a panel of upper tribunal judges held that the decision maker should look at whether there is a real possibility that harm might occur and also at how great the harm might be. The greater the potential harm, the less likely it needs to be that it would happen on any specific occasion.
For example, someone who is deaf may be unable to hear a smoke alarm if a fire starts when they are bathing.
The risk of a fire starting on any given occasion is very small, but also very real. And the harm that might occur if the claimant was caught in the bathroom during a fire is potentially fatal. So, the risk is small but the potential harm is very great. Therefore the claimant cannot carry out the activity of washing and bathing safely unless they have supervision.
The same logic also applies to people who have epileptic seizures and need someone to keep them safe if they do.
The panel also ruled that where a claimant is at risk all the time, even if they are just sitting in a chair doing nothing, then they may also be at risk when carrying out PIP activities that do not carry any additional likelihood of harm.
So, a claimant may not be at any additional risk of harm if they have a seizure when using the toilet or taking medication, for example. But, because they are at risk whatever they are doing, then we would argue that they still reasonably require supervision during these activities because they cannot do them safely without supervision.
Seven month delay
Benefits and Work updated our PIP guide within a few weeks of the upper tribunal making their decision.
It has taken the DWP a shameful seven months to update their guidance to health professionals.
In a written statement last week, Penny Mordaunt, minister for disabled people, told the Commons:
“The updated guidance will reflect binding case law following an Upper Tribunal judgment handed down on 9th March 2017 on how DWP considers a claimant to be carrying out an activity safely and whether they need supervision to do so. This will increase entitlement for a number of both new and existing claimants, largely those with conditions such as epilepsy, which affect consciousness. The Department estimates approximately 10,000 claims will benefit by £70 - £90 per week in 2022/2023.”
Benefits and Work believes that the decision should benefit not just claimants with epilepsy, but also a wide range of other conditions such as learning difficulties, dementia, heart problems or mental health conditions.
So, someone at risk of serious self-harm or at risk of committing suicide might well qualify for the enhanced rate of the daily living component, if they need someone to supervise them to keep them safe.
Someone with learning difficulties which leads to a lack of awareness of danger may also qualify.
Whether the DWP will take the same view remains to be seen.
Mordaunt went on to say that the DWP will be looking at existing cases to identify claimants who have missed out as a result of their failure to apply the law correctly, in order to make a backdated award:
“In the case of existing claimants the Department for Work and Pensions will undertake an exercise to go through all existing cases and identify anyone who may be entitled to more. We will then write to those people affected and all payments will be backdated to the date of the change in case law.”
However, few claimants would trust the DWP to identify all those who should receive a higher award and it would definitely be worth getting advice if you believe your case should be looked at again, especially as the DWP seem to be focussing almost exclusively on claimants with epilepsy.
If you did not receive any award of PIP at all, even though you are likely to have qualified on safety grounds, it does not appear that the DWP intend to look at your case again. You may wish to consider making a fresh claim in these circumstances.
You can download the new PIP guidance from the PIP page in the members area, or from this link.