We think the DWP and tribunals may not be failing to start awards from the correct dates:
1. AWARDS REVIEWED BY THE SECRETARY OF STATE
In appeals relating to decisions made by the DWP following a review of PIP entitlement that they initiated, the start date for the award is the date on which that review process was commenced, provided the outcome (as determined by the decision maker or by the Tribunal) is advantageous to the claimant.
The Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013 – SCHEDULE 1 para 18:
“Where the superseding decision is advantageous to the claimant and is made on the Secretary of State’s own initiative, the decision takes effect from the date on which the Secretary of State commenced action with a view to supersession.” We think tribunals invariably follow the “Decision Effective Date” suggested by DWP in their appeal submissions which is the (later) date on which their revision decision (usually disadvantageous to the claimant) was made. Anyone else seen this happening?
2. LEAP REVIEW DECISIONS
The DWP’s LEAP Review process involves a review of all PIP decisions made after two key Upper Tribunal decisions (MH and RJ) which failed to follow the case law established by those judgements.
Decision MH: From 28 November 2016 there was a change to the way the Department for Work and Pensions (’the department’) considers how overwhelming psychological distress affects a claimant’s ability to plan and follow a journey. This decision is known as MH.
Decision RJ: From 9 March 2017 there was a change to the way the department considers if a claimant can complete a PIP activity safely and if supervision is required, by considering both the likelihood of harm occurring, and the severity and nature of the harm that might occur. This decision is known as RJ.
If a Tribunal is considering an appeal about a refusal to supersede a decision in the LEAP review process, the key date is either the date the claim decision was made or the date of the Upper Tribunal (UT) judgment, whichever is later.
Even if a decision was made before the UT judgment, the Tribunal should consider whether to supersede in light of the judgment from the date of that judgment. This is an issue because the DWP have been refusing to supersede decisions made before UT judgments as the judgments did not have effect until after the claim decision. Grounds for supersession arise from an error of law (reg 24 of the UC, PIP, JSA & ESA (Decision and Appeals) Regulations 2013). If the error of law is revealed by a test case the date of the test case decision is the relevant date (reg 35(5)).
And even if the appeal before the tribunal relates to a different decision, we think the tribunal can review the LEAP decision as well, provided an MR request was made within 12 months and an appeal lodged within 13 months of the MR decision. Any thoughts?