A common issue arising from our work with VOICES is getting benefits reinstated or a claim re-opened, where a customer has not been able to take part in the face to face assessment process for Personal Independence Payment (PIP).  It can also apply to assessments for Employment and Support Allowance and Universal Credit limited capability for work/work related activity.

It has been said that the current assessment system inherently discriminates against people with mental health illness.  It is often the very symptoms of the person’s mental health that cause them such levels of distress that either they cannot attend the assessment at all, the assessment is stopped by the assessor or, the person walks out.  In our experience the situation concludes with a case manager at the DWP issuing a negative decision usually along the lines of, “we couldn’t complete the consultation because you didn’t fully take part and we don’t think you’ve given us a good reason for this” or, “your claim to benefit has been disallowed for failing to complete an assessment.”  Such decisions appear to reach the conclusion that non-attendance is due to a conscious choice rather than to any physical or mental health condition preventing their attendance or participation.

In these circumstances the person is likely to need support to ask the DWP to look at the decision again.  There are strict time limits to the process of challenging a DWP decision.  The person must first ask the DWP for a mandatory reconsideration within one calendar month of the date the decision was issued.  If they wish to appeal the mandatory reconsideration decision, they have a further one calendar month from the date of the mandatory reconsideration decision and, they must appeal direct to HM Courts & Tribunals Service.  The time limits can be extended a further 12 months in special circumstances.  However no mandatory reconsideration or appeal can be accepted more than 13 months after the date of the disputed decision.

When challenging this type of decision it is the person’s responsibility to give a good reason for not being able to take part in the assessment and, to provide any evidence to justify this.  The person’s state of health at the relevant time and, the nature of their disability should be taken into account when deciding good reason.  The decision maker should not just consider one factor but should consider the overall picture of the claimant’s individual circumstances including, “facts which would probably have caused a reasonable person to act as the claimant did.” (R(SB) 6/83)

Reasons for not participating are varied but, more often than not it is a mental health condition that prevents our customers from doing so, even with support.  For example:

James was in receipt of the enhanced rate daily living and mobility components of Personal Independence Payment.  His award was being reviewed and as part of this process he attended a face to face assessment for PIP.  His service coordinator attended with him.  James has a diagnosis of chronic and Severe Alcohol Dependency, Unstable Personality Disorder, Depression, Anxiety and, significant pain in both of his legs which affect his mobility.  During periods of extreme anxiety James will drink significantly more alcohol than his usual maintenance level.  This was the case during the few days leading up to his assessment and culminated in a much higher level of intoxication than usual on the actual day.  James had required a lot of encouragement to go to the assessment.  At the assessment James became extremely agitated, going over and over his past traumas in an attempt to explain to the assessor his mental health problems.  His symptoms of distress and anxiety became so elevated that the assessor stopped the assessment.  His service coordinator asked the assessor to fully record the events and the reason why the assessment had to be stopped.  The service coordinator was told that it would not be possible to do a home visit.  This may have been because James’ distress had been interpreted as aggression.  The service coordinator sent in a supporting letter from James’ mental health consultant but, the resulting decision was that James was no longer entitled to PIP because he had not shown good reason for not completing the assessment. 

Recent case law, CPIP/1567/2017 (OM v Secretary of State for Work and Pensions (PIP) [2017] UKUT 458 (AAC), may be helpful when challenging these decisions as it also looks at the suitability of the assessment.  Upper Tribunal Judge Mesher held that, “Although the tribunal considered that the claimant’s psychosis was relatively stable that was no doubt in the context of his ordinary day to day routine and could not be guaranteed under the particular stresses of having to go out to a consultation at an unknown place.  More important there were questions about the likelihood of the consultation, especially if under stressful conditions, producing any significant additional evidence.”

Judge Mesher suggests that a telephone consultation or a consultation at home may have been more productive, stating that it was not clear to the Judge whether the risk to staff of the claimant becoming aggressive would be much less in the unfamiliar environment of a consultation centre than in his home and, that in some cases, if there is sufficient information on the claimant’s file, there may not be any need for a face to face consultation at all.

When considering a home visit, the PIP Assessment Guide states that, amongst factors such as the nature and severity of the condition and any difficulties with travelling to an assessment centre, the safety implications of a home visit should be considered.  If there is no risk to the assessor or, the presence of a support worker or another person removes or significantly lessens any risk to the assessor then you should also make this clear when requesting a home consultation.

The assessment provider (either Capita or Atos depending on post code) will often state that it requires a GP letter to support a request for a home consultation.  Experiences of other support organisations agree that this leads to added pressure on GP surgeries and expense to claimants who are already on a low income.  The PIP Assessment Guide provides for a much wider consideration in such instances and allows for example, evidence from a social worker, community nurse, or carer.  It may then be a reasonable argument to suggest that the assessment provider is fettering its discretion if it insists that this is the only supporting evidence they will consider and a complaint could be submitted.

Preferably prior to the assessment but, also when challenging a negative good reason decision, you should submit evidence to support your customer’s case.  This should be done with your customer’s consent and could include a letter of support from yourself and/or other service providers, copies of NDT Assessments and Safety and Wellbeing Assessments (SAWBA), especially where there is no medical evidence available.

You can also can ask for reasonable adjustments to be made under the Equality Act 2010.  Public authorities such as the DWP, have a duty to make reasonable adjustments if the person is disadvantaged by something because of their disability compared to a person who is not disabled.  A person with a significant mental health illness should be afforded the opportunity of being able to complete their claim for Personal Independence Payment.  If the person’s disability for example causes them difficulty when completing forms, travelling to assessments, attending face to face assessments or, concentrating and understanding the questions asked during the assessment, reasonable adjustments can be made to the application and the assessment process so that your customer is not disadvantaged.  If the DWP know about the person’s disability and fail to make reasonable adjustments there may be a case for complaint about unlawful disability discrimination.

Arguments for good reason may also apply to a failure to provide information on time, for example the ESA50 form, UC50 form, or the PIP form ‘How your disability affects you’.

References:

Social Security (PIP) Regulations, Regs 9 & 10
https://www.legislation.gov.uk/ukdsi/2013/9780111532072/contents

Advice for Decision Makers (ADM) Chapter P2 Assessment for PIP
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/753905/admp2.pdf

Advice for Decision Makers (ADM) Chapter P6 Good Reason
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/473399/admp6.pdf

Advice for Decision Makers (ADM) Chapter A1 Principles of decision making and Evidence
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/598370/adma1.pdf

CPIP/1567/2017 (OM v Secretary of State for Work and Pensions (PIP) [2017] UKUT 458 (AAC)
https://www.gov.uk/administrative-appeals-tribunal-decisions/om-v-secretary-of-state-for-work-and-pensions-pip-2017-ukut-458-aac

PIP Assessment Guide (last updated November 2018) Part One – The Assessment Process
https://www.gov.uk/government/publications/personal-independence-payment-assessment-guide-for-assessment-providers