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PIP New Case Law – an article from our Patron Jo Luck

Personal Independence Payment was brought in with the aim to make it easier for people who had mental health, cognitive and developmental conditions to receive an award as opposed to some of the difficulties in doing so with DLA.

It was supposed to be simpler and fairer but being a new benefit accompanied with new legislation and regulations there have been a lot of terms and definitions that have needed further clarification and establishment of case law as to how definitions and descriptors should be applied.

The good news in that there are still parts of PIP open to interpretation is that there is an opportunity to challenge these interpretations and develop case law setting precedents for how definitions and descriptors ought to be applied.

First tier tribunals are more likely to then make decisions in favour of the claimant following this established precedent. The difficulty is that the parts open to interpretation can mean a lot more stress when going through a claims process.

Claiming for PIP can feel very overwhelming, especially for autistic people who can often be very literal in interpretation. It is worth really highlighting here that first a descriptor can apply to you even if it does not exactly describe your ability in a literal sense.

This might sound pretty crazy, but it is simply because when judging which descriptor applies to you the DWP have to apply rules around fluctuating conditions and reliability.

Often, they try not to apply or consider these rules but unfortunately for them, these are rules embedded into their regulations which means they are law! Law and rules = more certainty which I like! And strangely for once a lack of reliability around something is actually an advantage, in a nutshell it means if you can’t always do something, if you can’t do it safely, if you can’t do it in a reasonable time frame or to an acceptable standard then you actually can’t do the activity!

It can be difficult to explain and that literal interpretation of descriptors can often cause anxiety and confusion but this can be explained in another article, for now I want to tell you about some of the findings of Upper Tribunals which will benefit autistic claimants.

PIP is split into two components comprising of a number of activities and one of the things that can often be difficult when you are autistic is that if you don’t have an intellectual disability or learning disability and have a higher level of intelligence it can frequently (and wrongly) be assumed that you couldn’t possibly struggle with certain elements of activities for that reason, which as we know that couldn’t be further from the truth.

The challenges autistic people face is not related to levels of intelligence. The other frustrating and annoying thing that tends to happen is that autism is compared with mental health or treated as if it is mental health and DWP decision makers love to comment on autistic claimants not received medication and/or treatment for their condition – what a surprise seeing as there is no medication that can specifically treat autism!

And of course, the many challenges there are in actually getting any kind of support or health input to manage challenges! Just because we are not getting help, it does not mean we do not NEED it.

So recently a judge commented ref a claimant who had received such comments from a decision maker that “Mr X has never asserted he has a mental health condition, rather he has a complex developmental and behavioural disorder that impacts on his ability to carry out everyday tasks of the type considered by the descriptors“ This is a very helpful statement as it can challenge those misconceptions that if you aren’t receiving medication or therapy it can’t be that bad and your challenges don’t exist!

In another recent case there were some helpful findings around the activities of reading and budgeting.

These are often areas that claimants who are autistic or have ADHD or other neurodevelopmental conditions may struggle with but not score points for on assumptions made about their intelligence. However now there is caselaw that can help to challenge this.

In CPIP/1653/2019 the judge found that with regards to reading “for people without difficulties in this area, reading a short sign will be almost instantaneous” – this is important because if you have a processing delay or any visual processing difficulties, concentration problems, information processing impairments etc as a result of autism or any other condition this could mean that you take in this information more slowly, need to read it repeatedly to take it in, could process it in a different way – even if you are intelligent or very articulate.

Any delay would mean that you were not able to read and understand the information instantaneously and this would mean you cannot read reliably.

This also applies to the reading of complex written information in that you may need to read it repeatedly to understand the context and meaning and you could also struggle to retain the information in order to act on it.

This could mean you are unable to understand information to an acceptable standard i.e., reliably. The judge also held that basic written information being considered must be such that it has a practical and useful meaning, and the descriptors require an ability to read actual words.

The judge also determined that the descriptor “Cannot read or understand signs, symbols or words at all” did not mean the claimant would have to be completely illiterate and unable to read any words just that they were not able to read the basic information being considered within this activity.

Within the same case as above the judge also considered the application of descriptors in relation to the budgeting activity. One of the important things noted upon is that the definitions for simple and complex budgeting decisions list what the claimant is required to do and that these requirements are cumulative and follow on from each other.

This means that a claimant must be able to do all of them not just one or two. The judge held that calculating the cost of goods is not the same as being able to calculate them: “The appellant is said to “know” that 24 tins of dog food cost £8.50. That is not a matter of calculation unless, for instance, 12 tins are known to cost £4.25 and the cost of 24 has to be worked out”.

In terms of complex budgeting decisions, the judge held that the claimant must be able to “manage” bills, not just pay them and this included more than just ensuring bills were paid. Such as “prioritising which bill to pay in the light of competing demands, or the need to avoid or minimise late payment charges, or the need to take stock of bills which will inevitably be coming up and to plan accordingly”.

Executive functioning difficulties associated with autism and ADHD will be relevant here as they impact on the necessary organisational and future planning skills that this activity requires.

This can result in these activities taking considerably longer (which means it is not reliable) or you may experience significant stress and distress which would mean it could not be done to an acceptable standard (being in distress is obviously not acceptable – and not acceptable is not reliable). If direct debits have been set up for you this does not prove you can manage bills, what should be looked at is how you would manage any issues relating to that payment and if you could act to ensure it was made.

There are plenty more insights I can offer into how descriptors for PIP activities should be decided and key things relevant to autism that can be included within claim forms. But there is already so much information here to read.

What is always worth saying is if you do not get the decision you need challenge it and do not be put off by failure at mandatory reconsideration stage.

Statistically the majority of mandatory reconsideration attempts are declined perhaps because the DWP knows that many claimants will find going through the tribunal process too daunting and stressful, however 76-80% of appeals taken to first tier tribunal are successful – again statistically that weighs hugely in your favour.”

By Jo Luck

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Legal NewsPIP New Case Law – an article from our Patron Jo Luck