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DWP Sends A Million Misleading Letters To Prevent PIP Back Pay

April 21, 2021

With many thanks to Benefits And Work.

 

The DWP have sent out up to a million misleading letters designed prevent tens of thousands of potentially eligible PIP claimants receiving thousands of pounds each in arrears. The letters are very probably unlawful, both in terms of properly informing claimants of a legal decision and in terms of breaching the General Data Protection Regulation (GDPR).

The LEAP review

In a decision known as MH, it was found that the DWP had been misapplying the law in relation to overwhelming psychological distress and following the route of a journey.

Claimants should be awarded the standard rate of PIP mobility if, because of overwhelming psychological distress, they need someone with them to follow the route of an unfamiliar journey.

And they should be awarded the enhanced rate if they cannot follow the route of a familiar journey without having someone with them, for the same reason.

Journeys on foot, by car or on public transport should all be taken into account.

Instead the DWP had been awarding just 4 points, not enough for any award of the mobility component at all.

The LEAP review, which also relates to another case called RJ in which the DWP was found to have got the law wrong in relation to safety and supervision, was set up to identify claimants who should be getting more money.

Before LEAP, when the DWP was trying to change the law in its favour, it had estimated that almost 1 in 7 claimants might be affected by the MH decision.

Yet between June 2018 and January 2020 only around 1 in 200 claimants got an award under LEAP.

And for the following year, up to January 2021, that proportion dropped to just over 1 in 1,000.

By January of this year almost 900,000 claimants had been assessed under LEAP, with just 3,700 getting an award in relation to MH. By now, over a million are likely to have been processed.

So the main job of the LEAP letter, which each reviewed claimant should have received, appears to be to prevent them understanding and challenging the decision to award them nothing.

Misleading title

The title of the letter seems designed to encourage recipients to stop reading and bin it immediately. It reads:

Personal Independence Payment

Changes in PIP law – we have looked again at your PIP and it has not changed

How many claimants who are actually due thousands of pounds in arrears never get further than that paragraph?

Many claimants are thrown into a state of panic whenever they get a brown envelope from the DWP. It may take them days to pluck up the courage to open it. And the MH decision this letter largely relates to is about people who experience overwhelming psychological distress.

The incredible relief at reading that nothing has changed, in large letters at the very top, may be all that many claimants register before throwing the letter away.

A lucky escape

The letter goes on to turn a positive change in the law into a frightening possibility that you could have had your PIP removed:

There have been some changes in Personal independence Payment (PIP) law that affect how the Department for Work and Pensions decides PIP claims.

We are looking again at PIP claims to find out which ones are affected.

This letter explains if and how these changes affect you.

There have indeed been changes in the law.

And anyone affected by those changes is entitled to more money and potentially thousands of pounds in arrears. Absolutely nobody will lose money because of them.

But if the DWP had said that, people might have wanted to find out more.

So, the letter keeps quiet about the changes all being in the claimant’s favour and leaves the reader feeling like they have had a lucky escape.

No explanation

The DWP go on to say:

This letter explains if and how these changes affect you.

These changes are to do with:

How we assess someone’s ability to plan and follow a journey

How we decide whether someone can carry out an activity safely or not, and whether they need supervision

There is more information about these changes towards the end of this letter and at www.gov.uk/dwp/pip-changes

So, if you actually do want to know what these changes are, all you’ve got so far in connection with the MH case is ‘These changes are to do with: How we assess someone’s ability to plan and follow a journey’

If you go to the end of the letter, as instructed, you will read:

MH v DWP tribunal judgement. This relates to how ‘overwhelming psychological distress’ is considered when assessing the ability of someone to plan and follow a journey. This change applies from 28 November 2016.

Which still tells you nothing about how the law has changed and how it might affect you.

Bewildering link

If you have internet access, you can type out that link in the letter to be taken to more information online.

But when you get to the linked page, you’ll be faced with a list of five different changes.

The very last one is headed: Overwhelming psychological distress and journeys: changes to PIP law from 28 November 2016

On this page you will discover that changes to the law mean that:

“We are looking at all current PIP claims to check if this change means you may be eligible for more support under PIP.”

So, finally, you’ve learnt that the change means you might be entitled to more, not less, money. Something the DWP chose not to tell you in the letter.

There is still no explanation of what the change in the law actually is, however.

But there is a link to an Upper Tribunal judgment on overwhelming psychological distress and journeys.

The link takes you to an incredibly dense 700 word summary of the MH decision.

Most people would struggle to understand that summary.

There is then a link to the full decision. However, that is 21 pages long and, again, most people not practised in reading legal decisions would struggle to follow it.

So, the truth is, most people receiving the LEAP letter have no way of being able to tell whether they are affected by the change in the law or not.

It is a tactic that has clearly worked.

We heard from people in our survey who definitely did not understand what the letter was about:

Didn’t know what the letter meant until I’ve read this news letter

Didn’t really understand stand what the letter meant had no one to help me

And so far we have heard from just three people, out of one million, who have actually challenged the decision in the LEAP letter. In each case the DWP caved in and paid what was owed.

Too complex

We suspect the DWP will argue that the legal concept in MH is much too complex to explain in simple terms.

Yet, something as simple as the following would have made a huge difference:

In a decision known as MH, it was found that the we had been getting the law wrong in relation to overwhelming psychological distress and following the route of a journey.

Claimants should have been awarded the standard rate of PIP mobility if, because of overwhelming psychological distress, they needed someone with them to follow the route of an unfamiliar journey.

And they should have been awarded the enhanced rate if they could not follow the route of a familiar journey without having someone with them for the same reason.

Instead we had been awarding just 4 points, not enough for any award of the mobility component at all.

It may not be perfect, but it’s still gives a reasonable idea of who benefits.

The DWP employ people whose full-time job is to write clear information, yet no attempt was made to explain this decision.

Error of law

There are more things that make this letter utterly unfit for purpose.

The letter doesn’t tell you what evidence in your PIP claim or claims they considered. Claim form, assessment report, additional evidence? If there was more than one claim did they still have the evidence from the earlier claims? Without this information, how can you know if they considered all the evidence that they should have?

The letter says they looked at ‘any new information you provided at my request’ but we haven’t heard of a single person actually being asked to provide additional evidence prior to a decision.

The reality is that because the DWP didn’t consider that extreme psychological distress in the course of a journey was relevant to a PIP claim, they had no reason to collect or record information about it occurring. So, almost by definition, without gathering new evidence their decisions were flawed.

No reasons are given for why it was decided you personally were not affected by the changes in the law, so how can you tell if the decision was correct? For example, it doesn’t say something like ‘We decided that although you experience psychological distress, it is not overwhelming.

All these failings mean that the way the decision was reached and communicated may amount to an official error.

The sting in the tail

There’s one more deceptive stunt the DWP pull.

In the letter, above the signature, you are not told that you have the right to challenge this decision via mandatory reconsideration and appeal.

Instead, that information is relegated to a separate page of ‘bumph’, where there is also generic text about other benefits and changes of circumstances.

There are details about how to get advice on debt and savings from the Money Advice Service, but no mention of how to get help from an advice agency with challenging the decision in the letter.

Does hiding this information about appeal rights on a separate page after the end of the letter work?

Definitely.

In our survey we heard from people who said they had no idea that they could challenge the decision.

I didn’t realise I could argue this at that point in time. I basically just put it away and ignored it.

I did not know that I was able to challenge the decision and would not have been sure how to anyway.

Were humans involved?

There’s another thing about this whole process that may render it unlawful.

We very strongly suspect that most of these decisions have been made not by a decision maker, but by a computer algorithm. Hence the lack of any personalised text in the entire letter, other than names and dates of awards pulled by software from a database.

Though even here the DWP try a sneaky trick by including a list of the points you scored at your last assessment on a separate sheet, to make it look like the decision is specific to you.

But it’s not, that information is just pulled from another database by more software.

In reality, this document is just a standard letter, without a single word about your particular circumstances and why they don’t entitle you to more points.

If it is true that most of these decisions were made via Automated Decision Making (ADM) without any meaningful involvement by a person qualified to make them, then they are very probably in breach of the General Data Protection Regulation (GDPR).

Which might make the entire review of 1.6 million claimants unlawful.

So, don’t expect the DWP to come clean about what they’ve been up to.

It will take a lot of pressure from organisations much more influential than Benefits and Work to get to the bottom of this.

But, we’ve begun the task by making Freedom of Information requests to find out more. And we’re doing our best to spread the word.

The DWP haven’t got away scot free yet.

The LEAP letter text in full

[Below is the text of the LEAP letters we have seen. But we have only seen four letters so far and we are aware there may be different versions. Please let us know if you have one at admin@benefitsandwork.co.uk )

Personal Independence Payment

Changes in PIP law – We have looked again at your PIP and it has not changed

Dear [insert claimant name],

There have been some changes in Personal independence Payment (PIP) law that affect how the Department for Work and Pensions decides PIP claims.

We are looking again at PIP claims to find out which ones are affected.

This letter explains if and how these changes affect you.

These changes are to do with:

  • How we assess someone’s ability to plan and follow a journey
  • How we decide whether someone can carry out an activity safely or not, and whether they need supervision

There is more information about these changes towards the end of this letter and at http://www.gov.uk/dwp/pip-changes

About your PIP
I have looked again at your award before [insert decision date] and it is not affected.

If you think it could be affected by these changes in PIP law, please phone or write to us using the details at the top of this letter.

Your PIP award from [insert decision date] is correct. This is because these changes in PIP law were taken into consideration when deciding your award from that date.

For your information, a copy of your last set of scores for your PIP is included with this letter.

Your payments
These changes in law do not change the amount of PIP you are getting.

What I did
I looked again at the information we have on your PIP claim(s) including any new information you provided at my request.

Why I looked again at your PIP claim(s)
I looked again at all your PIP claim(s) that may be affected because of the following changes in the law on how PIP claims are decided.

MH v DWP tribunal judgement. This relates to how ‘overwhelming psychological distress’ is considered when assessing the ability of someone to plan and follow a journey. This change applies from 28 November 2016.

RJ v DWP tribunal judgement. This relates to how we decide whether a claimant can carry out an activity safely. It also relates to how we decide if a claimant needs supervision. We now consider the seriousness of any harm that might happen, as well as the likelihood of it happening. Supervision is a need for the continuous presence of another person to prevent harm happening to the person who is claiming PIP or another person. This change applies from 9 March 2017.

For more information about these changes go to

www.gov.uk/dwp/pip-changes

Yours sincerely

[print name]

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