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PIP Backdating with current DLA claim

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owlman
owlman Community member Posts: 3 Listener
edited June 2021 in PIP, DLA, and AA
Hi all,

I have a current PIP claim going which the advisors have been very helpful with. It's all been submitted with the care act assessment document as evidence, and the advisor is confident i'll get the enhanced rate for both elements.

However, I have a very old indefinite award of DLA (lower and lower rate) from long ago, and apparently in these cases the legislation says that the PIP would not start for until 4 weeks AFTER the decision has been made. My advisor reckons it will leave me around £189/week worse off for the application period and the 4 weeks after. I asked if it was therefore possible to cancel the DLA and my advisor contacted CPAG who essentially advised that a clunky mechanism existed whereby if we cancelled the PIP claim and then reapplied, the DLA would cease. However that would have meant a lot of stress so I didn't go ahead with it. The people helping me were brilliant, but didn't feel there was any way of challenging it. However it just seems unfair. They also mentioned they had a few other clients fall foul of the situation before.

I have been doing some math, and it's really a lot of money. If the application takes just 16 weeks, it would be at a cost of over £3000

Am I right in thinking that

a) This couldn't be challenged at tribunal (as its in legislation that PIP wont kick in until 4 weeks after a decision if dla award is active)
b) It is discriminatory as it discriminates against me financially for the fact I already received DLA/was disabled.
c) The only way to challenge it would be a complicated form of judicial review.

I wanted to ask CPAG if there would be any recourse, but they only have an advisor line and obviously resources would be limited for something that probably isnt affecting many people. Is this something I should just let go, or should I try to find an advisor to advise me on it?

Thanks

Comments

  • owlman
    owlman Community member Posts: 3 Listener
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    hI Mike, thanks for your reply.

    As I understand it, this is not how it works. If you are currently on DLA, you would continue receiving DLA until around 4+ weeks AFTER a PIP decision has been made. Therefore, because I am receiving around £45/week the difference would be vast. (PIP+SDP) as you continue to receive the old DLA rate for 4 weeks after the decision. Whereas in the case of a new PIP claim, your claim starts from the day your advisor makes the call to claim.

    If you check here: https://www.legislation.gov.uk/uksi/2013/387/made under section 17 (and the relevant notes) it would seem to confirm this. I was shown a document with slightly clearer guidance, but I can't remember where it was. (It specifically stated you would stay on the old DLA rates for the 4 weeks after the decision, even if the new rate was higher). Please also see page 21 here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/861844/PIP-handbook.pdf

    So to summarise: Had I cancelled my DLA claim, and made a new PIP claim, the new amount would have been payable from the claim date. However due to the way it works, the new amount would only be payable from 4 weeks after the last payment after the decision. The CPAG reading of this was, that the DWP may view such a move cynically.

    Additionally, had I not been disabled in the past, and only making a new claim now, the new claim would have been payable immediately. This is what I meant by discriminatory.

  • owlman
    owlman Community member Posts: 3 Listener
    edited June 2021
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    Legislation:

    - (b)the claimant’s entitlement to disability living allowance shall terminate, except where paragraph (2) of regulation 13 applies to the claimant, on the last day of the period of 28 days starting with the first pay day after the making of the determination.

    Legislative Notes:

    Regulation 17 provides that when an assessment determination is made on a claim by a DLA entitled person, the person must be informed of the outcome. Whether the person is awarded PIP or not, the person’s entitlement to DLA normally ends on the last day of the 28 day period starting with the person’s first DLA pay day that falls after the assessment determination. If the person is awarded PIP the person’s entitlement to PIP starts on the day immediately after that on which entitlement to DLA ends.

    Guidance:

    - Once a decision is made on the PIP claim no matter whether that decision is favourable or unfavourable, DLA will continue to be paid until 28 days after their next payday, until the PIP decision comes into force. These rules will also apply if the claimant is awarded PIP at a higher or lower rate than their previous rate of DLA or even disallowed altogether.

    As I read it:

    - PIP is applied for. A decision is made.
    - DLA entitlement continues until the last day of the 28 day period starting with the person’s first DLA pay day that falls after the assessment determination. (So between 28 and 56 days)
    - PIP entitlement starts once the DLA entitlement ends.
    - SDP entitlement is based on PIP entitlement, so SDP will start at that time too (28-56 days after the determination of PIP eligibility) [Unless of course SDP was also payable on the DLA entitlement level]
    - Payment of both SDP and PIP is dependent on date of first entitlement, as above.

    An example:

    Joe Bloggs has been claiming DLA. He is entitled to the lower rate for both Care and Mobility. He claims PIP. The claim takes 100 days for a decision. The DWP make a decision that he is entitled to the ER for both care and mobility. This determination is made 1 day before his DLA payment is due. Therefore his entitlement is to the lower DLA rates for the application period of 100 days, and the next 29 days. After 129 days his PIP entitlement begins.

    Mary Bloggs does not claim DLA. She makes a claim for PIP which takes 100 days. The DWP determine that she is entitled to ER for both care and mobility. Her entitlement begins from 100 days before the decision. (the application date)

    Joe Bloggs is far worse off.

    (Note Joe and Mary bloggs are unrelated and do not cohabit etc. It's just my use of similar names)
  • calcotti
    calcotti Community member Posts: 10,010 Disability Gamechanger
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    You have failed to consider how other people benefit from the rules. Some people get DLA which entitles them to SDP. They apply for PIP which is refused. They get 28 day run on.

    As with most rules, some benefit, some lose.
    Information I post is for England unless otherwise stated. Rules may be different in other parts of UK.
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