Who is in the wrong?

bumblesea

Hi I need some advice, 
my dad is 69, he had his Pip stopped last year and has been fighting for it back, 
long story short, he won the tribunal, but the Dwp have only paid him a bit of money, (nowhere near what they owed him) so he has rang them and they said they’re not giving him the mobility side of it because he’s over 65 but the judge awarded it to him, has the judge done wrong or have the Dwp done wrong?

poppy123456

Hi,

Before the PIP was stopped did he have a mobility award, if so what award did he have? 

Also what was he awarded by the Tribunal? 

bumblesea

He didn’t have the mobility award no, but the judge awarded him the mobility this time as he is in desperate need of it, he has been since he started receiving pip years ago but he didn’t know how to request a mandatory reconsideration 

bumblesea

Oh and hi 👋🏻 poppy xx lol 

poppy123456

Hi,

I'm very surprised that he was given the mobility award because unless he was previously claiming it then because he's now past state pension age he's unable to claim any mobility part. This will be the reason that DWP can't pay him this. He should check the Tribunal decision letter.

bumblesea

Yes the judge awarded awarded it to him, they awarded him enhanced rate of daily living a mobility, but the Dwp have sent him some money and gone against what the judge has said when the Dwp should have stopped my dads money and asked the tribunal for a statement of reasons, they can just ignore a judgement, they can disagree with the decision and ask for a SOR or agree with it, they can’t just give him some of the money, they haven’t even given him the enhanced rate of Daily living the amount they have given him is the staffers rate of mobility, I’m just really confused 

poppy123456

As he didn't have a mobility award at all before unless he was transferring from DLA this time then he won't be able to claim the mobility award at all. See link. https://researchbriefings.parliament.uk/ResearchBriefing/Summary/SN07160

If the daily living amount is wrong then he'll need to contact DWP and ask why.

bumblesea

Why would the judge award it to award it to him then if he’s not entitled to it? 

poppy123456

He may have scored the points but it doesn't mean he can receive the money. It's not possible for him to receive the money because he's over state pension age and he can't claim the mobility part.

bumblesea

Well I’m well he is writing to the courts anyway because they actually said the words he is entitled to the higher rate of both component, and citizens advice have told him that they can’t go against the judgement, there is a reason the judge awarded him both components and the Dwp can’t just give him what they think he’s entitled too without asking for a SofR too see why the judge awarded him mobility 

poppy123456

@mikehughescq can you help here please?

cristobal

@bumblesea - is it possible that the judge has just made a simple mistake?

The DWP aren't 'just giving him what they think he's entitled to' - no new claimants over pension age can claim the mobility part, as Poppy says...

bumblesea

cristobal said:

@bumblesea - is it possible that the judge has just made a simple mistake?

The DWP aren't 'just giving him what they think he's entitled to' - no new claimants over pension age can claim the mobility part, as Poppy says...

Well yeah I guess it’s possible, but you’d think the judge knows what he’s talking about, I’ll let you know the outcome anyway, the Dwp have messed up either way because they haven’t even given my dad the standard rate of daily living in his back pay and he’s entitled to enhanced daily living, it’s just really confusing, like I said though, the citizens advice have said the judge wouldn’t have awarded it to him if he wasn’t entitled 

cristobal

@bumblesea - yes let us know...maybe the CAB never make mistakes !!??

poppy123456

I've known CAB to give bad advice in the past...

Misscleo

Yes CAB often gives wrong advice and they think you shouldn't point it out to them.
But you do have to or they carry on giving it out and then there are bigger problems. 
Which has happened here

skullcap

My experience of the CAB and one or two other 'advice agencies' is  poor. Not only is bad advice given they are not known to be on the ball with time limits. Way back when I was only in receipt of low mobility DLA the CAB said that I was entitled to middle care and high mobility. They completed the form and sent it off only to find much later that they had forgot to apply for the uplift of the mobility element. Very embarrassing trying to explain to the DWP that it wasn't my fault it was down to the CAB.
My opinion is that not knowing is far better than working with bad advice. I would  never trust anything that they tell you without first checking it out with someone else.

bumblesea

I can see I can see the CAB making mistakes because I seemed to know what I was talking about more than he did but I can’t see the tribunal judge making the mistake of getting my dads age wrong and making the decision he is entitled to mobility when the Dwp say he isn’t 

Jurph

My understanding is as a PIP tribunal - they will look at all descriptors and award points if they apply.

The awarding of these points doesn't mean someone is entitled to payment. As said above, the mobility component isn't awarded to those over 65 unless they previously received it immediately before reaching 65.

mikehughescq

Thanks for tagging me in @poppy123456. 

All - I’m not willing to get into a discussion regarding the merits of different services as every service is funded differently and you can get good advisers in poor services and vice verse. An advice service can only ever be rated on someone’s perception of who they saw and even that can be objectively wrong. Some advisers present brilliantly but get stuff wrong. Some advisers may be terse or uncommunicative but technically correct every time. And again, vice verse. Some people will think the first adviser I’ve described is brilliant and can do no wrong and so on...

However, I don’t think we have the full picture here. The decision under appeal was made “last year” i.e. 2019. That doesn’t tell us when the original award was made; at what rate and how long for. “Years ago” is a big clue though. 

If this was, for example, a 7 year award reviewed and removed at the 5 year point then the tribunal could decide there were no grounds for supersession and removal; put the original award back in and award for longer. It is entirely possible that the tribunal were effectively dealing with a pre pension age award and thus entitled to award a rate of mobility component which would then persist beyond pensionable age. However, more info is needed before such a conclusion could be drawn.

Next - it’s always worth pointing out of course that a judge did not make this decision. The decision was made by a panel of three. The summary decision is signed by the judge but the decision is that of all three members. Tribunals did of course make mistakes and do so on a regular basis. If that were not true then there wouldn’t be such a big backlog of cases at Upper Tribunal! I’ve a nagging feeling this is not a mistake though for the reasons above. 

As regards what should happen now we’ll that’s up for debate.

Once the tribunal decision exists then the DWP on paper cannot withhold any element of the payment. They can either request an amendment under the slip rule i.e.  “correction of an accidental error” or they apply for a statement of reasons and record of proceedings to see if there was an arguable error of law. In the meantime they ought to pay up. However, what they “ought” to do has been stretched out of shape in recent years by two things.

1 - they sometimes argue that the decision is so obviously bad that they ought not to pay up until clarity is obtained because else they could just be making an overpayment which would inevitably be recoverable. The latter half of that sentence is undoubtedly true in some circumstances and makes sense morally. It’s just not the actual legal position though. The legal position is basically “pay up” until a different decision exists.

But...

2 -  there has always been a provision which allows for the suspension (not cessation) of payment on the basis that a “question has arisen as to entitlement”. Traditionally this is under used but it’s use is on the rise and it arguably fits this scenario. It’s also possible to suspend part of an award.

Ultimately if you want to force the payment issue then you need to consider issuing a letter before action on the basis that the current decision exists and hasn’t been enacted. You may need further face to face advice on this. 

bumblesea

Yeah we’re speaking to the tribunal services and writing them a letter, I will let you know the outcome, thank you xx