Ask CPAG Online - Have the correct descriptors been chosen?
The fundamental ground for disputing a PIP disability decision is that the DWP did not apply some or any of the correct descriptors to you. You can find a full list of the descriptors and guidance on them in Chapter 34 of the CPAG Handbook.
Has the DWP used a ‘top down’ approach?
In contrast with the employment and support allowance (ESA) descriptors, the PIP descriptors are listed in ascending order of points. Considering the descriptors in this order risks choosing the first descriptor which applies to you and ignoring the fact that other higher scoring descriptors may also apply (e.g. you may need prompting to be able to undertake a journey to avoid overwhelming psychological distress which scores 4 points, but you may also be unable to follow the route of a familiar journey without another person which scores 12 points). The HCP who examined you may have adopted a ‘top down approach’ to the descriptors and their choice is often ‘rubber stamped’ by DWP decision makers. In fact, regulation 7(1)(b) of the PIP Regulations makes it clear that where two or more descriptors apply on the majority of days, the highest scoring descriptor applies.
Does the evidence support the choice of descriptors?
Establishing that the evidence shows that some or all of the descriptors chosen are wrong is a common ground for appealing a PIP disability decision. This may involve pointing out that evidence has been ignored or given insufficient weight, or you may be able to provide new evidence bearing in mind that this must relate to your condition and needs at the time the decision was made and during the ‘required period’ of 12 months.
Has the wording of the descriptors been properly applied?
It is important to carefully consider the wording of the descriptors to establish which ones apply to you and check whether the DWP has applied them correctly. Many of the words and terms used are defined in regulation 2(1) and schedule 1 to the PIP Regulations, including everyday terms such as ‘aid or appliance’ (‘any device which improves, provides or replaces’ an ‘impaired function’, ‘assistance’ (‘physical intervention by another person’), ‘cook’ (‘heat food at or above waist height’), ‘supervision’ (‘the continuous presence of another person’ to ensure your safety) and 'prompting' ('reminding, encouraging or explaining by another person'). Words which are not defined should generally be given their ordinary everyday meaning.
All of the descriptors are tests of whether you 'can' or 'cannot', or 'need' ceertain types of help to undertake activities. The 'can' and 'cannot' descriptors must be interpreted in the light of the 'frequency' and 'reliablity' rules (see 'Have the frequency rules been properly applied'? and 'Have the reliabiity rules been properly applied?) The 'need' descriptors should be interpreted in the light of the help you reasonably need, irrespective of whether you actually receiving it.
Case law on how the descriptors should be interpreted made by the Upper Tribunal and Courts is legally binding on the DWP and tribunals.
Is there relevant case law?
Case law on the interpretation of the descriptors by the Upper Tribunal is legally binding on the DWP and tribunals. PIP decisions are given file numbers beginning CPIP (or CSPIP in Scotland) or UK, and citation numbers with (PIP) in brackets. You can find PIP case law on the Upper Tribunal website and summarised in CPAG’s Welfare Rights Bulletin. LASA produce a free online resource called pipinfo which has updated commentary on PIP case law.