29 months later: unlawful decisions and unfairness to individuals

24 July 2019 was quite some time ago. Boris Johnson had just been voted in by Conservative Party members as Prime Minister. Lil Nas X had just broken the record for weeks at number 1 in the charts with the smash-hit Old Town Road. And if anyone were to mask up on public transport, you might have thought them eccentric, to say the least. But for Marsha, a Z2K client, that was when she became one of the hundreds of thousands of ‘losers’ from the Department for Work and Pensions’ (DWP) transition from Disability Living Allowance (DLA) to Personal Independence Payment (PIP).

After being transferred from DLA, Marsha was assessed as not being entitled to PIP.  Two and a half years, and three Tribunal hearings later, Marsha finally has her full PIP entitlement.  Delay is perhaps the theme that has struck me most on beginning work in the advice sector.  Delays on waiting times for phone calls, certainly.  Delays in explanations for deductions, likewise.  But most importantly, delays in claimants like Marsha getting the benefit they are entitled to.

Marsha’s case

Marsha had been in receipt of the higher rate of mobility rate DLA, with a string of physical and mental health conditions and a lengthy list of daily medication.  After being refused PIP, she challenged this decision first through DWP’s internal Mandatory Reconsideration (MR) stage.  DWP simply upheld its original decision.  When she eventually got to the independent First-tier Tribunal to challenge this (at that point it was March 2020 and her hearing was via the phone), she finally received a PIP award.  But it was still not the full entitlement we considered she was owed, so she submitted a further Tribunal challenge.

Errors in law were made by both the first and second Tribunals, which resulted in more waiting, more anxiety, and more uncertainty.  Though she gained some entitlement from the first Tribunal, it was in fact reduced after the second.

It was third time lucky for Marsha.  At her third Tribunal last month she was awarded both PIP components at the enhanced rates and another back-payment to top up what she had not received from the previous Tribunals.  It says a lot about DWP that, even at the final hearing, its presenting officer maintained the original position that she wasn’t entitled to PIP at all.  With the decision that she wasn’t entitled to PIP being made in June 2019 (and the 24th of July being the first day she no longer continued to receive DLA), it took 29 months in all for her to get a wrongful decision put right.

Musings after Marsha

Back-payments running into five figures can be fairly dramatic in indicating the scale of the benefit withheld from the client and validating the work you are doing as a welfare rights advisor.  It is undoubtedly satisfying to have a measurable way of knowing how you have assisted a client.  Not covered in this figure, is the more abstract measure of the ordeal the client has had to manage day-to-day with no (or insufficient) additional support for their disability-related needs.  No adviser or representative can ever undo the months (or even years) without funding for a carer or mobility aids to let them get around, for example.

What’s more, if somebody receives a back-payment after tribunal, they have just 12 months before it starts counting as capital and potentially reducing any future means-tested benefits.  Yet clients who spend the back-payment risk intentional deprivation of capital and having deductions regardless.

Disabled people we speak to are often comforted to find out that 70 per cent of PIP tribunal appeals (80 per cent on reassessments) are successful.  Tribunals are often thought of as the cure: the point at which wrong decisions get rectified.  Marsha’s case shows however that some people need to keep on fighting in order to get their correct entitlement.  While it is of course better for clients to have something than nothing, each incorrect decision represents a citizen being left without a benefit they are legally entitled to in order to help with their disability.  Meanwhile, there is little accountability for the withholding of disability benefit payments and no consequences for wrongful decision making.

Martha’s case shows the need for robust advice even after the Tribunal hands down its decision. What remains truly troubling is the unknown unknown: the number of claimants (transfer or otherwise) who do not have access to advice agencies and are not able to challenge decisions on their entitlements, be that before or after the tribunals are involved.

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