Personal Independence Payment — Revisions and Supersessions of Fixed Term Awards

Introduction

Personal independence payment (PIP) awards are normally made for a fixed period of time. When the fixed term period elapses the award comes to an end unless the claimant re-claims benefit or the award is increased in length. It is possible for the Department of Works and Pension (DWP) to change an ongoing fixed term award. This can lead to an increase or decrease in entitlement. This now happens more frequently due to the DWP practice of organising a planned review of a PIP award 12 months before the end of the fixed term period. This means that understanding this process is crucial to advising claimants correctly. This article explains the mechanisms for changing an ongoing PIP award and provides tactical advice for advisers on this issue.

Supersession or revision

If a claimant has an ongoing award of benefit a new decision is required to change the award. The provisions for changing decisions are called revisions and supersessions. For PIP the different grounds for revision and supersession are set out in the Personal Independence Payment (Decisions and Appeals) Regulations 2013 (PIP(DA) regs). Generally speaking, grounds for revision should be considered if the original decision on the award is incorrect. A supersession is normally appropriate where a decision has ceased to be correct from a later date. When a decision maker reconsiders a decision they should explain which provision has been used. This can be challenged at an appeal. A tribunal can correct a defective revision or supersession and make any decision that a decision maker could have made but didn’t. Tribunal of Commissioners decision R(IB)2/04 provides helpful guidance on this.

Awards made by tribunals

A decision made by a tribunal cannot be revised. However, an award of PIP made by a tribunal can be superseded under the provisions outlined in this article. This would apply if a claimant’s circumstances changed or if the DWP obtained a new medical report which justified a change in entitlement.

Dealing with different types of cases

Claimant entitled to increased award

Supersession

After a fixed term award is made a claimant might have a deterioration in their health which could increase their entitlement to PIP. If these increased needs have lasted for at least 3 months and are likely to last for at least 9 months the claimant can ask the DWP to supersede and increase their award. The required period condition doesn’t apply to someone who is terminally ill.

A claimant can ask the DWP to supersede their award. However, the DWP can also initiate a supersession if they become aware that a claimant’s needs have increased. This sometimes happens when a claimant is asked to attend a new medical assessment as a part of a planned review of their PIP claim.

The provisions used to increase an award are usually either: regulation 23 PIP(DA) regs which allows for a supersession if there has been or there is expected to be a relevant change of circumstances; or, regulation 26 PIP (DA) regs which allows for a supersession if the Secretary of State (SoS) has received medical evidence from a healthcare professional or other approved person.

If regulation 23 is used and if the decision is advantageous to the claimant, the new decision will normally have effect from:

• If the SoS initiated the supersession the date on which they first take action with a view to carrying this out;
• If the claimant applies for the supersession, the date the change takes place if the claimant notifies the DWP within 1 month of the change;
• If a claimant notifies the DWP of the change late there is a provision to extend the 1 month time limit to 13 months. However, this is restricted to cases where there are special circumstances which means that it was not practicable for the claimant to notify the change in time (regulation 36 PIP(DA) regs)

If regulation 26 is used the new decision will normally be effective from the date of the decision (s10(5) Social Security Act 1998).

As the provisions for ‘backdating’ any increased entitlement are quite limited, claimants who are entitled to an increased amount of benefit should not delay in asking the DWP for a supersession.

Risks of asking for a supersession

When considering whether to ask for a supersession a claimant with an ongoing PIP award needs to be aware that there is risk that their current award could be reduced. This is because when the DWP reconsider entitlement they will reconsider the whole of the award. This could lead to an ongoing award being reduced. When advising claimants it is important to consider the following:

• How safe is the ongoing award?
• How high is the chance of receiving an increased award?

Only if the ongoing award is relatively safe and the chance of increased entitlement is high should claimants consider initiating a supersession. See the following examples:

Examples

Jane has an award of the standard rate daily living component. She receives the severe disability premium in her income-related employment support allowance. She had to go to an appeal twice to get her PIP award. She starts to suffer from arthritis and this is restricting her walking ability to about one hundred metres three days a week. She asks if she should consider asking the DWP to include the mobility component.

Farhat has had an award of standard daily living component for the last 5 years. She has never had problems having her PIP awards renewed. She suffers from multiple sclerosis. Her condition has recently deteriorated. She has medical evidence to prove this. She can no longer mobilise unaided. She wishes the DWP to consider whether she is entitled to an increased award of benefit.

In the above cases, Jane’s award may be more at risk than Farhat’s particularly if she has been refused PIP in the recent past. The adviser should discuss this with the client in view of any risks to the current award. The client can then make an informed decision as to whether to proceed with a supersession.

Revision

In most cases a client will become entitled to an increased award of PIP due to a change in their disability needs. However, in some cases a decision might have been wrong on the date it was made. If a client is within the appeal time limit they should challenge the decision by mandatory reconsideration and appeal. Due to upper tribunal decision R(CJ) and SG v Secretary of State for Work and Pensions (ESA): [2017] UKUT 324 (AAC); [2018] AACR 5 an appeal against a PIP decision should be admitted if the revision is lodged within 13 months of the disputed decision and the decision appealed within the appeal time limit. If the claimant is outside of this upper time limit and the original decision is wrong it might be possible to have the DWP revise the decision on the grounds of official error (regulation 9(a) PIP(DA) regs). An official error can include getting the law wrong. However, this will not apply if this is only shown by a test case that is made after the relevant decision. It can also include a failure to take into account evidence that was before the decision maker. If a claimant contributes to the error this is not an official error. If there is specific evidence that the DWP overlooked at the time of making the decision it can be helpful to produce this.

Clients determined to have decreased entitlement

Ongoing awards and safeguards

The issue of grounds for supersession and revision becomes particularly important if a claimant’s ongoing award is reduced by the DWP. Advisers often come across this situation in appeal cases. It is important to remember that demonstrating grounds for changing the award is an instrumental part of the decision making process and can be challenged at appeal. If the DWP reduces an ongoing award they must prove, on a balance of probability, that there are grounds for revision or supersession. This should give claimants an extra layer of protection in protecting an ongoing award. Advisers should check that this issue is addressed by the decision maker and point out that a claimant’s appeal should succeed if there is not enough evidence to demonstrate that there are legal grounds for changing the award. This point was recently emphasised by the upper tribunal in SM v Secretary of State for Work and Pensions (DLA): [2021] UKUT 119 (AAC). Although this case concerned disability living allowance and the Social Security and Child Support (Decisions and Appeals) Regulations the principle would apply equally to PIP supersessions and revisions. Upper tribunal judge Poynter found that the tribunal had erred in failing to consider that the decision under appeal was a decision made on supersession rather than entitlement. As such, the award should not be removed without certain safeguards being observed.

Supersession

The DWP will sometimes supersede an ongoing award if the decision maker feels there is evidence for this. The provisions used for this are normally regulation 23 or regulation 26 PIP(DA) regs. Either of these provisions can be used. Most commonly regulation 26 is referred to if the DWP has received new medical evidence.

Regulation 23 allows the DWP to supersede a decision if there has been a relevant change of circumstances. Whilst this can be used to increase an ongoing award it can also be used to reduce it. Regulation 23 mirrors regulation 6(2)(a) Social Security and Child Support (Decision and Appeals) Regulations which applies to benefits like disability living allowance and old-style employment support allowance. The case law relating to what constitutes a change of circumstances under regulation 6(2)(a) will also apply to regulation 23. This means the change in circumstances must amount to a material fact which affects the decision on entitlement (R(DLA)1/03). This imposes a high evidential threshold on the DWP.

Material change

In R(IS) 2/97 it was established that a new medical opinion does not in itself constitute a relevant change. To justify changing an award the decision maker must identify how a new medical report provides evidence of some material change to the claimant’s circumstances. In R1/05 (DLA) it was found that a lessening of care needs is a material change. Advisers should consider how the claimant met the disability conditions for their current ongoing award and whether the DWP have provided sufficient evidence that this has altered. This is particularly important if the claimant has disability needs that are enduring or progressive. In these cases advisers should hold the DWP to a high evidentiary standard for demonstrating that there are grounds for supersession.

Example

Monika has severe arthritis. She has been entitled to PIP daily living component and the enhanced rate of PIP mobility component for 6 years. She has had 3 medical assessments. The third medical assessment she is awarded no points at all and loses her award. The clinical findings on this assessment were similar to previous assessments and her arthritis medication has been increased. The health care professional (HCP) stated that Monika’s condition could be improved by physiotherapy and that she was exaggerating her level of disability.

In Monika’s case, unless there is some evidence that her disability needs have decreased, the opinion of the HCP is unlikely to be enough to justify a supersession on the grounds of change of circumstances.

Earlier medical reports can be useful in helping to establish whether a claimant’s disability needs have changed. Tribunals aren’t obliged to consider these (SF v Secretary of State for Work and Pensions (PIP): [2016] UKUT 481 (AAC). However, advisers might want to obtain these previous reports if they feel they might be helpful in establishing that the client’s needs haven’t changed.

Given the large body of complex case law which needs to be applied when considering superseding on the grounds of change of circumstances it is perhaps not surprising that increasingly the DWP seek to supersede an award under regulation 26 instead. Regulation 26 states that a PIP decision can be superseded if:

‘the Secretary of State has —

received medical evidence from a healthcare professional or other person approved by the Secretary of State..’

Given that most PIP awards are subject to a planned review, which normally entails a new medical assessment, the evidence to justify a supersession on these grounds is often available to the DWP decision maker.This avoids dealing with some of the complications of proving there has been a material change in circumstances under regulation 23. Despite this, case law on regulation 26 has established that it is not enough for the DWP to just produce a new medical report to justify superseding an award on these grounds. The content of the medical report must support the rationale to change the award. In KB v Secretary of State for Work and Pensions (PIP): [2016] UKUT 537 (AAC) upper tribunal judge Mesher stated:

‘..although it is not necessary to identify a change of circumstances in order to authorise a supersession, it may be necessary to consider the circumstances obtaining when the existing award was made and during the period of the award as part of “all the relevant evidence” and as part of an adequate explanation of the outcome if it is less favourable than the existing award that is being replaced on supersession’.

In upper tribunal decision SF v Secretary of State for Work and Pensions (PIP): [2016] UKUT 481 (AAC) the upper tribunal judge Wikeley outlines:

‘…the steps a First-tier Tribunal should take when considering an appeal against a decision by the Secretary of State to withdraw a claimant’s current award of personal independence payment (PIP) before its scheduled expiry date’.

This involves identifying:

• the ground upon which the supersession decision was made; and
• the date from which it properly took effect.

This upper tribunal decision provides helpful guidance for the approach that should be taken by a decision maker when superseding an award, applying the principles established in commissioner’s decision R(M) 1/96, the upper tribunal restated that it is an established principle that evidence should be presented to justify changing an existing decision.

Revision

Less commonly, the DWP will revise an award and withdraw entitlement to PIP retrospectively. This can lead to an overpayment. Under regulation 9(b) PIP (DA) regs the DWP can revise a decision if it:

‘..was made in ignorance of, or was based on a mistake as to, some material fact and as a result is more advantageous to a claimant than it would otherwise have been’.

Again, the DWP must satisfy the evidential requirements in justifying a revision on these grounds. If an overpayment is generated and the DWP seeks to recover this the DWP must also provide evidence that the overpayment is legally recoverable. Both the decision on entitlement and recoverability of the overpayment can be appealed to a tribunal.

Conclusions

Where a claimant has an ongoing award of PIP a decision maker can only alter this before the end of the fixed term if they can identify grounds for supersession or revision. This provides an extra layer of legal protection for claimants with an ongoing award of PIP. The upper tribunal has confirmed that if the first-tier tribunal does not consider this issue in relevant cases this will constitute an error of law. Advisers need to be able to identify these cases to ensure that claimants with ongoing PIP awards are afforded this protection if a decision maker seeks to reduce their entitlement. In particular they should scrutinise the evidence used to see if it is sufficient to justify changing the award.

Rachel Ingleby is a Benefits 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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