Great expectations dashed as PIP plans mature

Issue 227 (April 2012)

Proposals to replace disability living allowance (DLA) for working age adults with a new personal independence payment (PIP) have emerged relatively unscathed from parliamentary scrutiny of the Welfare Reform Act 2012. Jon Shaw updates on the changes that were made and the current consultations on the proposals.

Introduction

While the Welfare Reform Act contains the power to completely abolish DLA, it has always been made clear that initially PIP will only be introduced for working age adults (16–64). The new benefit will be very similar to DLA in its basic structure, in that it will not be taxable or means-tested. It will consist of a daily living component and a mobility component, each of which will be payable at a standard and enhanced rate.

This article gives details of the current intentions for the delivery of PIP. It is important to note that, with the exception of the Act itself, everything described is either in draft form or currently subject to public consultation, and so may change before PIP is actually introduced.

Changes to primary legislation

The original proposal was to extend the length of time that a claimant’s daily living or mobility needs must have lasted before s/he qualifies for PIP to six months. The government supported an amendment which reduced the qualifying period, but also lengthened the time that a claimant’s needs must be expected to last. In the final Act, the ‘required period condition’ for both components of PIP is that:1

  • throughout the preceding three months it is likely that the disability conditions for a component would have been satisfied; and
  • throughout the next nine months it is likely that those conditions will continue to be satisfied.

The ‘required period’ is thus one year, with claimants becoming entitled after having a prescribed level of need for three months. There will be no required period condition for either component of PIP if a claim is made on the grounds of terminal illness. The draft assessment regulations also provide for an advance award of PIP to be made during the three-month qualifying period.2

The only other substantive change to the Bill resulted from a campaign challenging the proposal to remove the mobility component of DLA from claimants in residential care. A simi-lar proposal for PIP was also dropped.3It is now clear that entitlement to the mobility component will be retained by people in residential care. The power remains to stop payment of the daily living component to people in residential care, and both components when claimants are in-patients in hospital where the costs are met by public funds.

Details of the basic entitlement conditions

On 26 March, the Department published a consultation document4 that sets out further details of its plans for PIP. While PIP will be payable for the first 28 days in hospital or residential care. However, payments of the mobility component under an existing Motablilty contract will no longer continue after 28 days as an in-patient. The transitional protection of the mobility component for people who were long-term patients in 19965 (when restrictions on DLA payability for this group were first introduced) will also end.

Both components of PIP will only be payable for the first 28 days in custody or legal detention, and there will be a one-year linking rule for different periods in custody or detention. Periods in custody or detention will also link with periods in hospital or residential care, so no further 28-day payment will be made when claimants move from one to another.

Repeat claimants of PIP who requalify for the same component within a year of their previous award ending, and whose entitlement results from the same condition(s), will not have to re-serve the three-month qualifying period. The same rules will also allow people over the age of 65 to requalify for PIP rather than claiming attendance allowance (AA) after a gap in entitlement.

The rules about moving between rates of PIP after 65 will be more complicated. It will be possible to move down from the enhanced to the standard rate of the mobility component after 65, and also to move back up again if the increased mobility needs are due to the same condition and arise within one year of the former entitlement ending. People entitled to the standard rate mobility component will not be able to move to the enhanced rate when they reach 65. If not entitled to the mobility component when they reach 65, they will not be able to qualify for it.

In contrast, it will be possible to move freely between the rates of the daily living component after the age of 65, and to establish entitlement to it if already entitled to the mobility component of PIP. People not entitled to PIP when they reach 65 will still claim AA.

There will be significant changes to the residence and presence tests.

  • The ordinary residence test that currently applies to DLA will be replaced by a ‘habitual residence’ test for PIP. Reference is made to the current test for means-tested benefits, so claimants are likely also to need to show a ‘right to reside’.
  • Serving members of the UK armed forces and their family members will be treated as habitually resident when they are stationed abroad.
  • The past presence test will be toughened, and claimants will generally have to have been in the UK for two of the past three years to qualify for PIP. The Department acknowledges that European Union (EU) law may mitigate the impact of this requirement for some claimants.
  • The rules about temporary absence from the UK will be toughened. Entitlement to PIP will only remain for the first four weeks of a temporary absence, or for up to 26 weeks where the claimant goes abroad for a specific medical treatment.

The government also intends to bring the residence and presence rules for DLA, AA and carer’s allowance closer into line with the PIP proposals.

The PIP assessment

A second draft of the PIP assessment regulations was published in November 2011. This included proposed scores for the individual descriptors, but not the thresholds for entitlement to a component.

The most important change in the second draft is the resurrection of the concept of ‘supervision’, which had been absent from the first draft. This is defined as ‘the continuous presence of another person for the purpose if ensuring the safety of the claimant.’5Help with the prescribed activities may be in the form of either ‘assistance’, ‘supervision’ or ‘prompting’. The weighting of these is not uniform, with a requirement for prompting given lower scores in several activities. At first glance, this seems unfair, but there is a reason for it. The explanatory notes make this clear:

‘We recognise that there are numerous different ways in which an individual could require prompting to ensure that they carry out the prescribed activities. In light of this, the definition of ‘prompting’ used in the second draft criteria does not explicitly require the presence of another individual. However, such prompting must be essential for the activity to be carried out.’6

This is a significant departure from the approach used in the DLA criteria, which exclude ‘attention’ (which for DLA includes both assistance and prompting) unless reasonably required in the physical presence of the claimant.7

Many of the descriptors have been simplified in the second draft and use much clearer language. The concepts of ‘continuous’ and ‘intermittent’ assistance to describe different levels of need have been removed. The current intention is that help ‘only needs to be required for part of the activity [for a descriptor] to apply.’8

While the second draft still sets out nine daily living activities and two mobility activities, there have been some changes to the activities in the daily living component assessment. Figure 1 shows the current structure of the assessment.

Figure 1: Current draft activities for PIP assessment regulations
Daily living activities
1. Preparing food and drink
2. Taking nutrition
3. Managing therapy or monitoring a health condition
4. Bathing and grooming
5. Managing toilet needs or incontinence
6. Dressing and undressing
7. Communicating
8. Engaging socially
9. Making financial decisions
Mobility activities
10. Planning and following a journey
11. Moving around

Source: PIPA Draft Regs, Schedule paras 2 and 3

Fluctuating conditions

The draft regulations set out the proposal for assessing fluctuating conditions. The current intention is that:

‘the descriptor which is applicable to the claimant shall be –

i. where one descriptor is satisfied on over 50% of the days in the required period, that descriptor;

ii. where two or more descriptors are each satisfied on over 50% of the required pe-

riod, the descriptor which is satisfied for the greatest proportion of time; and

iii. where no descriptor is satisfied on over 50% of the days of the required period, but two or more descriptors are satisfied for periods which, when added together are satisfied on over 50% of days in the required period, the descriptor which is satisfied for the greatest proportion of time.’'9

There are a number of problems with the operation of this regulation as currently drafted, so it may change in future versions.

Entitlement thresholds consultation

The proposed thresholds were finally published in January 2012, along with a formal consultation which runs until 30 April.10 It is proposed that the threshold for entitlement to the standard rate of both components will be eight points, and 12 points for the enhanced rate. The consultation may also result in further amendments to the regulations themselves, as it seeks views on the following aspects of them:11

  • the new daily living and mobility activities;
  • the weighting of individual descriptors;
  • the entitlement thresholds for the components;
  • how the regulations assess fluctuating conditions;
  • definitions in the regulations; and
  • how to incorporate definitions of ‘reliably, repeatedly, safely and in a timely fashion’.

Missing definitions

It has always been stated that a claimant will only be assessed as able to undertake an activity ‘unaided’ if s/he can do so ‘reliably, repeatedly, safely and in a timely fashion’. However, these are undefined in the draft regulations, and not mentioned in the text of individual descriptors. The Department is considering whether it is necessary to define these terms in the regulations or not. The current intention is that, whether explicitly defined or not, the meanings of the terms will be as follows.12

  • ‘Reliably’ means to a reasonable standard.
  • ‘In a timely fashion’ means in less than twice the time taken by someone without an impairment.
  • ‘Repeatedly’ means as many times during the day as the activity requires. Account should be taken of the cumulative effects of pain and fatigue.
  • 'Safely’ means in a way that is unlikely to cause harm to the individual or anyone else.

Impact on DLA claimants

The decision on the entitlement thresholds has allowed the Department to model the impact of PIP on the DLA caseload. It is estimated that by 2015/16 the working age caseload will be 500,000 lower than it would have been without the reform. However, it is difficult to establish exactly who will be affected. The Department actually expects slightly more people to receive enhanced rate daily living component than would have been receiving DLA highest rate care (presumably due to the lack of separate day and night conditions which must both be satisfied). However, overall the numbers receiving the daily living component are expected to be 770,000 lower than the projected numbers who would have been entitled to the DLA care component in 2015/16.13

Next stages

There is still no firm indication of the rates at which the components of PIP will actually be paid. It is not clear when this will be confirmed.

Once the consultations have ended, the first version of the assessment regulations cannot be made unless a final draft has been approved by both Houses of Parliament.14 It is expected that the draft regulations will be taken to Westminster some time in late 2012.

The contract for delivering the PIP assessment will be the first competition held under the Department’s new Health and Disability Assessment Services Framework. This divides the UK into geographical ‘lots’, intending to ensure that there is competition between suppliers rather than single UK-wide contracts. The closing date for expressions of interest has passed, but at the time of writing the successful suppliers had yet to be announced, and there were no further details of the PIP competition.15

The Welfare Reform Act commits the government to two independent reviews, two and four years after PIP is introduced.16Lord Freud also stated in the House of Lords that a further review will be undertaken if ongoing issues with the assessment are identified as outstanding after the second review.17

Transfer of DLA claimants

A recent briefing note18 has given details of how the Department intends to introduce PIP. As expected, it will be introduced from April 2013, although initially only for new claims dealt with by Bootle Benefits Centre. This covers ‘areas including Merseyside, North West England, Cumbria, Cheshire and North East England’, and has been chosen because the volume of claims that it handles should allow robust testing of the processes. PIP will then be introduced for new claims across Great Britain from June 2013.

The process of transferring existing DLA claimants will begin on a limited scale from October 2013. Alongside a pilot of the managed transfer process, anyone who has an existing DLA award that ends, or who reports a change in their circumstances will be assessed for transfer. This raises the uncomfortable possibility of people on DLA with ongoing awards who accurately report that their condition has now worsened, and not only fail to qualify for PIP, but also lose their existing DLA award.

The full-scale reassessment exercise (including the managed transfer of indefinite and long-term awards) will follow from January 2014, and will be carried out by Blackpool Benefits Centre. The intention is to contact all existing working age DLA claimants by March 2016, and complete the reassessment process by the end of that year.

The most recent consultation provides more details of how the reassessment will work.19When contacted, DLA claimants will be given four weeks to make a claim for PIP. If they fail to do so, their DLA award will be suspended, and reinstated if a claim for PIP is made within a further four weeks. If there is no contact by this point, the DLA award will be terminated. There will be limited appeal rights, but ‘safeguards’ will ensure that those genuinely unable to engage in the process can do so later without financial penalty.

The claimant will have to complete a questionnaire after making a PIP claim. Failing to do so without good reason will mean that the PIP claim fails. People will be encouraged (but not required) to provide supporting documentation at this stage. The independent assessor will be responsible for deciding whether further evidence should be gathered from people who know the claimant, and for gathering it if they decide that this is necessary. Most people will also have a face-to-face assessment. A DWP decision maker (DM) will then make a decision on the claim. The DM will consider all of the evidence, and be able to ask the assessor to review her/his assessment if there are any concerns about it. The DLA award will end on the day before the effective date of the PIP decision, whether PIP is awarded or not.

There are also more details of the plans for 16-year-olds. It will not be possible for anyone under 16 to claim PIP. However, the Department intends to contact the appointee of a child on DLA who is approaching 16 (including those who have an indefinite DLA award). Where an intention to claim PIP is indicated, transitional regulations will ensure that the DLA award continues beyond the 16th birthday, until a determination is made on the PIP claim. If there is no response from the appointee or claimant, DLA will stop on the 16th birthday.

Conclusion

While a lot of information has been produced, with the exception of the Act itself it remains in the realm of intention rather than legislation. There is still time to engage in the consultation process. However, it remains to be seen to what extent this ‘iterative process’ results in meaningful changes to the Department’s plans.

Note that all of the DWP documents referenced in this article can be accessed at www.dwp.gov.uk/pip


Please be aware that welfare rights law and guidance change frequently. Therefore older Bulletin articles may be out of date. Use keywords or the search function to find more recent material on this topic.

  • 1. s81 Welfare Reform Act 2012
  • 2. DWP, Personal Independence Payment: second draft of assessment regulations, November 2011, Reg 13(1) (‘PIPA Draft Regs’)
  • 3. s85 Welfare Reform Act 2012
  • 4. DWP, DLA Reform and Personal Independence Payment – completing the detailed design, March 2012
  • 5. Regs 12B and 12C, Social Security (DLA) Regulations 1991
  • 6. DWP, Personal Independence Payment: second draft of assessment criteria, an explanatory note to support the new draft assessment regulations, November 2011, para 4.20
  • 7. Reg 10C Social Security (DLA) Regulations 1991
  • 8. DWP, Personal Independence Payment: second draft of assessment criteria, an explanatory note to support the new draft assessment regulations, November 2011, para 4.19
  • 9. Reg 4(4)(c) PIPA Draft Regs
  • 10. DWP, Personal Independence Payment: assessment thresholds and consultation, January 2012
  • 11. DWP, Personal Independence Payment: assessment thresholds and consultation, January 2012, para 5.4
  • 12. DWP, Personal Independence Payment: second draft of assessment criteria, an explanatory note to support the new draft assessment regulations, November 2011, para 7.4
  • 13. DWP, Personal Independence Payment: assessment thresholds and consultation, January 2012, paras 4.13 and 4.15
  • 14. s94(6) Welfare Reform Act 2012
  • 15. Further details at www.dwp.gov.uk/supplyingdwp/what-we-buy/welfare-to-work-services/health-...
  • 16. s89 Welfare Reform Act 2012
  • 17. House of Lords, Hansard, 17 January 2012 col 5
  • 18. DWP, Personal Independence Payment – briefing note on high level reassessment strategy, 14 March 2012
  • 19. DWP, DLA Reform and Personal Independence Payment – completing the detailed design, March 2012, Ch 5