A large proportion of our pro bono clients will at some stage seek disability benefits to fill the hole in their finances created by not being able to work due to serious injury. The main disability benefits they will be applying for are Personal Independence Payments (PIP), Disability Living Allowance (DLA), and Contributory Employment and Support Allowance (ESA). This article mainly focuses on PIP, but the principles apply to all of these benefits.
Applications for disability benefits can be onerous and we deal with a large number of clients who have had their applications refused or their award has been lower than expected.
Recently released figures from the Department for Work and Pensions (DWP) show that around 70% of appeals against decisions relating to disability benefits were successful during 2018/19. This high success rate suggests that it is worth claimants seriously considering appealing if they are not satisfied with a decision.
Disability benefits assessments
Disability benefits are not means tested. Instead, decisions as to whether claimants are entitled are made on the basis of medical assessments. This involves a claimant having to attend an assessment with an independent health professional supplied by the DWP.
During PIP assessments, the claimant will be asked by the health professional to speak about and demonstrate what they can and cannot do as a result of their disability. The assessment will consider a number of “activities” that will generally be undertaken in everyday life, for example, preparing food. They will then attribute a “descriptor” to each activity, based on the evidence that the claimant has provided. The descriptor is a short sentence describing how able the claimant is to carry out each activity. For example, a descriptor may read: “Can prepare and cook a simple meal unaided”, or “Needs to use an aid or appliance to be able to either prepare or cook a simple meal”. Each descriptor is worth a certain number of points. It is on this basis that the DWP will award the benefit (or not) and decide how much the claimant should get.
The assessment can fall short at two stages: (i) at the medical assessment, if the health professional does not ask the correct questions or assesses the responses incorrectly; and (ii) when the DWP assessor is interpreting the health professional’s findings and considering (or in some cases not considering) other evidence provided by the claimant.
Where the claimant is not satisfied with the decision, either because it has been refused outright or the award is lower than expected, they have the right to challenge the decision. This process is made up of two stages.
As a first step, a claimant may request a ‘Mandatory Reconsideration’ of the decision. This is effectively asking the DWP to reconsider the decision, and the claimant is allowed to make submissions as to why the initial decision was incorrect.
If the claimant is not satisfied with the outcome of the Mandatory Reconsideration, they may appeal to a tribunal. Appealing takes the decision out of the DWP’s hands and puts it into the hands of Her Majesty’s Courts and Tribunal Service (HMCTS). The evidence is put before an independent tribunal, with the claimant and the DWP both making submissions.
Figures released by the Ministry of Justice in September 2019 show that around 75% of appeals against PIP decisions made to a tribunal were successful in 2018/19. This is a staggeringly high figure, indicating that tens of thousands of disabled people have initially been denied benefits to which they are entitled.
The success rate for Mandatory Reconsideration, however, is far lower, with just 15% leading to a change in award. Comparing this to the success rate of appeals to a tribunal, clearly the Mandatory Reconsideration process is not working as well as it could be.
Is it worth challenging decisions?
When it comes to disability benefit decisions, many clients will ask whether it is worth seeking Mandatory Reconsideration and appealing to a tribunal. Based on the figures above, the answer will generally be yes. The appeal process is free of charge and a successful outcome could make a significant difference to the claimant’s life.
While the success rate of appeals should offer hope to those that have incorrectly been denied benefits, these figures highlight the importance of encouraging claimants to appeal decisions and not just accept them. The DWP claims that only 4-5% of all decisions are overturned. But this does not take into account the number of claimants who choose not to appeal even if they are not satisfied. Research carried out by the DWP in 2018 revealed that many people decide not to challenge decisions because they think it will be too stressful or because they do not understand the process.
The stark difference between the success rates for Mandatory Reconsiderations and appeals to a tribunal also indicates that claimants should not be put off if they are unsuccessful in their initial challenge. It should, however, be noted that Mandatory Reconsiderations and appeals can lead to decisions being overturned in ways that do not benefit the claimant. For example, an award may be reduced or even removed based on reconsideration of the evidence. It is important, therefore, for claimants to consult their own medical professionals as to whether a successful outcome is likely.
It is for the claimant to weigh up the potential stress of pursuing an appeal and the possibility of receiving an unfavourable outcome against the likelihood of a successful outcome and the benefits that could bring. In order to help people to come to a more informed decision, it is important that patients and clients are made aware of the right to challenge and the high success rate of doing so.
This article was first published in ‘The Legal Service Newsletter’.