I’ve appealed a Personal Independence Payment (PIP) decision — should I make a new claim?

Kate Smith explores the risks and advantages of making a new claim for PIP when waiting for an appeal to be heard.

It can take many months for a PIP appeal to be decided, in the meantime people are left with no money, or less than they were hoping to get. One option is to make a new claim for PIP, or ask for the award to be looked at again in the hope that a positive decision will be made before the appeal. Is it a good idea to make a new claim, or ask for the existing award to be looked at again?

This is a question that comes up fairly regularly on the Expert Advice consultancy service and the answer isn’t always straightforward. This article will focus on PIP, but the considerations are similar for Disability Living Allowance and Attendance Allowance.

One reason this question comes up is because advisers and claimants have been told by people staffing the PIP phone lines that they can’t make a new claim when they have an appeal in progress. If you’ve been refused PIP altogether that isn’t correct. If there is no award of PIP there is nothing in the legislation to prevent a new PIP claim being made at any time before an appeal is decided. There are a few issues to consider when deciding whether to make a new claim, these are explored below.

There is a general principle that there can only be one decision covering a period. Section 17(1) of the Social Security Act 1998 says that a decision is final subject to any change by way of revision, supersession or appeal.

Example

Claim 1 for PIP is made on 1 March, a decision refusing PIP is made on 1 June. Mandatory reconsideration doesn’t alter the decision and an appeal is made on 1 August.

On 30 August a second claim (claim 2) is made for PIP. A decision is made on 1 October that awards the standard daily living component from 30 August. The decision on claim 1 covers the period 1 March to 29 August and the Tribunal deciding the appeal on claim 1 cannot award PIP for any day after that date. There’s a new decision standing in the way that has not been appealed.

A decision on a new claim ends the period for which the original claim can take effect. If claim 2 has been decided by the date of the appeal hearing, a tribunal will be limited in the length of award they can make if they decide that an award is appropriate. They could only award PIP from the date of claim 1 to the date of the new claim. If the tribunal awards more than was awarded on claim 2 there could be a drop in income.

Some legal/technical points

Before looking at the pros and cons of a new claim it’s worth setting out the difference between making a new claim and asking for a decision on a PIP award to be looked at again.

If PIP was not awarded on claim 1 there is the option to make a new claim. Often the hope is that the new claim will be decided differently and before an appeal hearing. However, making a new claim can cause confusion and can sometimes lead to detriment. For example, if claim 2 does not result in an award, or the award is less than hoped for, less PIP will be paid because a new claim has been made. If a new claim is made and the decision does not give everything hoped for you must consider challenging the new decision to avoid losing out in the long term.

It’s important to remember that if an amount of PIP was awarded on claim 1 a new claim for PIP can’t be made. Instead you can ask for the award to be looked at again. If you ask for the decision to be looked at again you’re asking for it to be revised or superseded.

Revision and supersession are the terms used in legislation [1] and describe the legal process that a DWP decision maker must follow to change a decision awarding benefit. There’s not room in this article to go into detail about revision and supersession, but it is always worthwhile keeping the processes in mind when thinking how best to change a decision on a benefit award.

When a new claim/request for supersession might be a good idea

There’s been a change in circumstances

If your condition has worsened, or your needs have increased since the decision was made on claim 1 you might want to make a new claim. A Tribunal can only look at the circumstances as they were at the date of the decision being appealed. [2] If the change means that you might satisfy more of the PIP descriptors you should make a new claim (if the original decision refused PIP altogether) or ask for the decision to be looked at again if you want the change to be taken into account and the original decision awarded PIP at a lower rate than you were seeking.

If a change is likely to make a difference to the amount of PIP that you could qualify for then a new claim, or request for PIP to be looked at again is advisable.

Once a benefit award has been made a decision can only be changed if there are grounds to ask for revision or supersession. One of the most commonly seen grounds for asking for a decision to be changed by supersession is that there has been a change in circumstances since the decision was made. If your circumstances have changed since claim 1 was decided, a new claim, or request for the decision to be looked at again must be made if that new circumstances is going to be taken into account.

Whether you are deciding whether to make a completely new claim, or asking for the decision to be looked at again, keep in mind that any change in circumstance after the date of the decision on claim 1 can’t be taken into account by the tribunal.

Example

Barbara was refused PIP on 1 August and has appealed. Barbara has a stroke on 1 October and is left with weakness down one side of the body making it harder to wash, dress and prepare meals. When the appeal is heard these extra needs can’t be taken into account by the tribunal and they could make a difference to the amount of PIP Barbara could get. If a new claim is not made Barbara could lose out.

There’s a delay in appeals being heard

The timescale for appeals being heard varies across the country and at different times of the year. If appeals are taking a long time to be heard you might consider making a new claim in the hope that you’ll get a favourable decision sooner. You will need to think carefully about the risks in making a new claim.

• If nothing has changed since claim 1 the chances of getting a favourable decision on claim 2 are low unless there is a favourable Healthcare Professional report
• If claim 2 again refuses PIP the new decision will need to be challenged and there will be two sets of documents including two copies of form PIP 2, and two Healthcare Professional reports, which could say different things and confuse matters
• If the decision on claim 2 is not challenged and the appeal on claim 1 succeeds there could be a gap in PIP entitlement

Unless there has been a change in circumstances there is often little point asking for a decision awarding PIP to be looked at again before an appeal. The chances of changing the decision are low because once a PIP award is made it can only be changed by revision or supersession if there are grounds such as a change in circumstances. The decision maker will not be looking at whether they’d have made a different decision, whereas a tribunal can consider everything and can make a completely different decision based on the same facts and circumstances.

Steps to take if Tribunal decides claim 1 favourably

The risk in making a second claim before appeal is that the tribunal gives a higher award of PIP but their decision only takes effect up to the date of the new claim. If that happens, all is not lost as the DWP has a power to revise a decision if they would have made a different decision on claim 2 if they’d known about the Tribunal decision at the time [3]

Depending on the outcome of claim 2 the rule can work for and against a client. If the appeal is successful it can work well for clients because they can, if needed, ask for the decision on claim 2 to be changed to reflect the tribunal decision. If the appeal is unsuccessful and no award is made on claim 1 that might cause the decision maker to look again at the decision on claim 2 and reduce the award.

In brief

• If your circumstances have changed since the first claim was decided, a new claim, or request for the award to be looked at again is the only way to have the change taken into account.
• If a new claim has been made, always challenge an unfavourable decision on claim 2, or you could lose out.
• If claim 2 gives an award of PIP that’s worth less than the tribunal award, ask PIP to look again at the decision on claim 2 and take account of the tribunal decision. Challenge the decision if they refuse to increase the award.

Footnotes

1. The Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013 and for more discussion of the way the regulations work see Rachel Ingleby’s article

2. s12(8) Social Security Act 1998

3. Regulation 8 and Reg 11(2) UC, PIP etc (Decisions and Appeals) Regulations 2013).

Kate Smith works as a benefit expert in the Expert Advice team at Citizens Advice

The information in this article is correct as of the date of publication

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