Moving from DLA to PIP at age 16 and the relevance of previous disability awards. Clarifying the issue of lack of capacity and its connection to the ability to make budgeting decisions.
JR v Department for Communities (PIP) 2023 NI Comm 1 Decision No. C21/22-23 (PIP)
The claimant when aged 16 claimed PIP. He had previously been on DLA from age 12 receiving the middle rate of care component. The claimant had development co-ordination and sensory processing disorders. The claimant’s mother was his appointee due to a lack of capacity. The claimant was turned down for PIP and the decision was upheld. The claimant’s mother appealed based on her view that her son satisfied the conditions for the daily living component.
The Commissioner considered the question of giving adequate reasons for a decision not to award PIP in the context of a previous award for DLA.‘There was no automatic requirement on a tribunal to explain a refusal of PIP mobility component in the context of an appellant who held a previous DLA high rate mobility award unless the case involved some obvious inconsistency that required particular elucidation. The rules of entitlement for DLA mobility component and a PIP mobility component are different, following a decision to change them.’ The Commissioner noted that the same principle applies to DLA care component and PIP daily living component and if anything the difference in the rules is starker. The Commissioner held that there were no requirements on a tribunal to give reasons for departing from a previous decision awarding DLA care component, given the two benefits are grounded on entirely different rules of entitlement (see paras 16 and 17). In addition, it would have been obvious the young person’s needs would have changed between the ages of 12 and 17. The Commissioner rejected the other grounds argued for an error of law. However, he accepted the argument of the mother of the claimant that she had become his appointee due to a lack of capacity and the evidence had been wrongly disregarded when considering Activity 10 (Making Budgeting decisions). The Commissioner referred to a previous decision DO’S v. DfC (2021) NI Comm 23 in which he said at para 20 that: ‘While I consider the lack of appointment is not binding on a tribunal as evidence of incapacity, it seems to require some further explanation by the Department as to why – if it accepts an adult claimant is incapable of acting on his own behalf – it has not awarded any points under the potentially related activity 10 (Making Budgeting decisions) in PIP cases’. In this case, the Commissioner acknowledged this issue was engaged and needed to be addressed. The failure to do so was an error in law. see paras 29-32.
For a full copy of the judgement, click here.