An Upper Tribunal judgment, of 21 August 2020, enabled a higher number of D/deaf people to successfully obtain Personal Independence Payment (PIP).
The DWP has now announced it is carrying out an “administrative exercise” to review PIP claim decisions made on or after that date.
Legal background
Entitlement to PIP is determined by assessment of a claimant’s ability to carry out specified daily living and mobility activities. One such activity is “washing and bathing”.
Regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013, provides that a claimant is not to be assessed as able to carry out an activity unless she or he can do so “safely”.
Regulation 4(4) of the 2013 regulations provides that "safely” means “in a manner unlikely to cause harm to [the claimant] or to another person, either during or after completion of the activity”.
In KT and SH v Secretary of State for Work and Pensions [2020] UKUT 252 (AAC), the Upper Tribunal held that, in the case of a person who has to remove their hearing aids or cochlear implants while washing and consequently cannot hear a typical alarm, the risk of a fire occurring is a “real possibility that cannot be ignored … having regard to the nature and gravity of the feared harm”.
As a result, the Upper Tribunal awarded both claimants bringing the appeal two points under PIP daily living activity descriptor 4(b):
“Needs supervision or prompting to be able to wash or bathe.”
As the DWP had already awarded the claimants 6 daily living points, this meant both now achieved the 8 points needed to qualify for the standard rate of the PIP daily living component.
DWP administrative review
The DWP says that it has applied the above ruling to all PIP decisions since 17 May 2021 as:
“If a deaf or hearing impaired claimant is not able to hear a standard fire alarm while washing or bathing, although the risk from a fire is low, we now consider whether a visual alarm (an aid or appliance) is needed, or supervision if a visual alarm would not be appropriate, in order to wash or bathe safely.
As a consequence, the DWP said: “We are now looking at PIP claims from deaf or hearing impaired people who may be affected by this change. This includes reviewing some claims we decided on or after 21 August 2020, including ones where we did not award PIP.
“We are not planning to ask you to provide any further evidence or invite you for an assessment as part of this review. We will be looking at information we already have about your hearing impairment from your PIP claim.”
The DWP adds: “If we review your claim, we will write to you and you do not need to contact us. It may take some time for you to get this letter.
“If we decide that you should get more PIP, then your award will usually be backdated to 21 August 2020. If you claimed PIP after 21 August 2020, it will usually be backdated to the date you started getting PIP.”
However, the DWP warns that: “We will not look again at your claim if:
- we awarded you the enhanced rate of the daily living part of PIP continuously since 21 August 2020;
- a Tribunal has made a decision on your claim since 21 August 2020;
- we decided not to award you PIP before 21 August 2020.
For more information see Risk and safety: changes to PIP law from 21 August 2020 available from gov.uk.
A summary of the KT and SH judgment is available from landmarkchambers.co.uk.
For more information on how you qualify for PIP and how it is assessed see for our PIP Guide.