Department for Work and Pensions

8. Mrs X complains about the DWP. Mrs X complains she was a resident in Spain in receipt of DLA and that since 2015 the DWP have misadvised her repeatedly in relation to applying for PIP. Mrs X complains DWP:

• told her numerous times on the phone since 2015 to wait to be invited to apply for PIP but after receiving no correspondence inviting her to apply, she contacted it again herself in August 2018 • did not advise her she could apply for PIP when she told it her condition had deteriorated when she wrote to it on 29 June 2016 • failed to consider the full impact the mistakes of the DWP had on her when it offered her a £100 consolatory payment in recognition of gross inconvenience as its level of service fell below the standard the customer had a right to expect.

9. Mrs X feels she has lost out financially as she believes she should have been advised to apply for PIP in June 2016 and the payments are significantly higher than the DLA she was receiving. Mrs X also says having to go through a long complaints process and having to spend hours gathering information and writing letters also caused her extra stress and anxiety. Mrs X says she had to fight to be heard and get things put right, even though the DWP knows it made mistakes in her case.

10. Mrs X would like an apology and compensation to be paid for the financial losses she incurred as well as the added stress and anxiety she has suffered.

11. Mrs X received DLA from 13 September 2002. DLA is a benefit for people who have extra care needs or mobility needs (difficulty getting around) because of a disability. There are two parts called components, the care component and the mobility component. A person may qualify for one or both, depending on their individual needs.

12. Mrs X moved from the UK to Spain in January 2015 and was therefore no longer entitled to the mobility component of DLA. The DLA care component is considered a sickness benefit under European laws which means a person remains entitled to it, even if they no longer live in the country that is paying the benefit. However, the mobility component of DLA is considered a special non-contributory benefit and is therefore not payable if the person receiving it permanently moves to another country, as in Mrs X’s case.

13. From April 2013, PIP replaced all new claims for DLA. Reassessments of existing DLA claims started in October 2013. From this date, if a person’s DLA was due to be renewed or a claimant reported a change in needs, they would be invited to claim PIP. PIP is designed to help claimants with extra living costs if they have a physical or mental condition or disability and they have difficulty doing everyday tasks or getting around because of their condition.

14. Mrs X engaged in correspondence with DWP during 2015 and 2016 regarding her situation, and initially complained about the removal of her mobility component of DLA. During this correspondence and, specifically in June 2016, Mrs X told DWP her condition had deteriorated. However, DWP took no action when it received this letter on 1 July 2016. In August 2018, Mrs X contacted DWP because she had not yet been invited to claim PIP and she was told she could claim at that point. She continued to engage in correspondence, and phone calls, with DWP about her dissatisfaction with the service she had received.

15. On 22 November 2019, Mrs X was awarded the enhanced rate of the PIP daily living component, paid from 25 December 2019. DWP told Mrs X it would ask its special payments team to consider whether it had misdirected her in 2015 and 2016 and whether her assessed level of needs would have been present at that point in time. In January 2020, DWP said the evidence was not robust enough to determine what Mrs X’s needs would have been in 2015 and 2016 and, it had no evidence she had been misdirected about applying for PIP. However, it awarded her £100 because it recognised it should have invited her to apply for PIP when it received the letter she wrote to it in June 2016.

16. Mrs X asked the Independent Case Examiner (ICE) to consider her case in June 2020. ICE made its final decision on 21 January 2022. ICE said DWP had recognised and put right its error by awarding her a £100 consolatory payment. While it considered asking DWP to carry out a mandatory reconsideration (MR) of Mrs X’s PIP award and, specifically, the backdating of PIP, ICE said DWP told it there was ‘no prospect of success’. Therefore, it made no further recommendation on the issues in this complaint.

19. We have set out our findings under sub-headings below, for clarity.

DWP’s advice in 2015

20. In considering this aspect of the complaint we have considered DWP’s ‘Our customer charter’ and our ‘Principles of Good Administration’. DWP’s charter says it will follow processes correctly and provide people with the correct information. Our principles say organisations should give information that is clear, accurate, complete, relevant, and timely.

21. DWP deletes its call recording after 14 months in line with its data retention policy. This means there are no call recordings for us to listen to. There are also no notes on DWP’s system that tell us what Mrs X was told during any calls at that time.

22. Mrs X says she would have applied for PIP in 2015 (or any of the subsequent years) had she not been told to wait for an invitation to apply. DWP told us it does not tell people to wait to apply for PIP if they report a change in their circumstances but, it did not deny that it would tell people to wait to be invited, depending on their situation. It also told us people in receipt of DLA received award letters each year which included a mailshot about PIP. It said this letter and mailshot told people they should inform DWP if their circumstances changed. However, DWP has been unable to provide a copy of any such letter it sent to Mrs X.

23. We think the pertinent consideration here is whether DWP was correct to tell Mrs X to wait to be invited to apply for PIP in 2015 and if so, whether there were any other considerations it should have made. As there are no contemporaneous records or recordings from the time these conversations took place to help us with our consideration, we have considered whether there is any other evidence available to support either account.

24. DWP’s ‘Personal Independence Payment – people turning age 65 after April 2013’ and ‘Personal Independence Payment (PIP) myth buster’ guidance, and its ‘2010 to 2015 government policy: welfare reform’ policy paper clarifies the situation at the time.

25. These tell us the following people could have applied and been assessed for PIP from October 2013:

• Those in receipt of DLA who were aged under 65 on 8 April 2013 and had reported a change in circumstances.

• People in receipt of DLA who had reached the age of 16.

• Those who wanted to voluntarily claim for PIP (providing they lived in a selected ‘reassessment area’) and were happy to accept the risk that they could be found to not be eligible for PIP, and subsequently lose their DLA too.

26. They also tell us DWP’s approach to rolling out PIP, and inviting eligible people to apply, was a phased one. This is so its service was not overwhelmed given the scale of the change, and the numbers of claimants involved.

27. Mrs X has not told us she had conversations with DWP about her circumstances changing but rather, she was enquiring about PIP. We recognise that in some instances each person involved in the same conversation can come away with a different perception of its contents and what happened. One person’s perception of what was said does not invalidate another person’s opposing perception of the same conversation.

28. We consider it more likely than not that Mrs X was told by DWP to wait to be invited to apply for PIP. This is because DWP’s literature about the roll-out of PIP suggests this is what it planned to do, and was doing, at the time. That said, we think DWP told Mrs X to wait in 2015 because she did not tell it her circumstances had changed. Had she said this to DWP, we consider it is likely it would have invited her to apply for PIP. Again, this is because this is what DWP’s literature says was its process at the time.

29. We consider on the balance of probabilities DWP gave Mrs X the correct advice, which was to wait to be invited for PIP. With this in mind, we do not consider there to be failings with regards to this aspect of the complaint.

DWP’s failure to invite Mrs X to claim PIP in 2016

30. On 29 June 2016, Mrs X wrote to DWP in response to a letter it had sent to her in May, and it received this on 1 July. Mrs X informed DWP of a change of circumstances within this letter. However, there is no evidence DWP took action after receiving this letter.

31. DWP’s ‘Our customer charter’ says it will follow processes correctly, provide people with the correct information, and deal with a person’s request the first time. Our ‘Principles of Good Administration’ say we expect public organisations to act in this way. They also say we expect public organisations to comply with the law and act according to their statutory powers.

32. Regulation 3 of ‘The Personal Independence Payment (Transitional Provisions) Regulations 2013’ sets out the legal obligations of the Secretary of State to invite people entitled to claim DLA to claim PIP. Specifically, regulations 3(2), 3(5), and 3(5A) require the Secretary of State to send an invitation to claim PIP as soon as reasonably practicable after a DLA entitled person under the age of 65 on 8 April 2013 reports a relevant change in circumstances.

33. When Mrs X wrote to DWP in June 2016, she reported a change in her circumstances (which was after the ‘relevant date’ of 27 October 2013, which was when DWP was ‘ready’ to transition DLA claimants to PIP) and, she was under the age of 65 on 8 April 2013. Therefore, DWP had a legal obligation on behalf of the Secretary of State to invite Mrs X to claim PIP.

34. However, it did not do so, and we consider this to be a failing. We will revisit the impact of this later.

DWP’s consolatory payment

35. In November 2019, DWP asked its special payments team to consider whether Mrs X had been misdirected or misadvised in 2015 or 2016 about when she could apply for PIP. It also asked it to consider whether her assessed level of needs would have been present in 2016.

36. In considering this aspect of the complaint we have considered DWP’s ‘Financial redress for maladministration – A guide for special payment officers’ and its ‘Financial redress for maladministration: staff guide’. We have also considered our ‘Principles of Good Administration’.

37. DWP’s guidance says special payment officers should ensure they have sufficient information to inform their decision, and should use this information to make fair and justifiable decisions on individual cases. Their role is to establish if maladministration has occurred and, if so, what impact this had on the customer. Special payment officers should also consider the impact of any delays in determining a benefit, or payment of a benefit, and a special payment should be considered for the impact of this delay if it arises as a result of maladministration.

38. Our ‘Principles of Good Administration’ say public organisations should take account of all relevant considerations in their decision making, ignore irrelevant ones, and balance the evidence appropriately. When mistakes happen, we expect public organisations to acknowledge them, apologise, explain what went wrong and put things right quickly and effectively.

39. DWP has provided us with a copy of the first referral form its complaints team sent to the special payments team on 19 December 2019. On this form, the referrer clearly states Mrs X told DWP in the letter it received on 1 July 2016 her health had declined. The referrer also said:

‘If we had advised Mrs X to make her claim to PIP following receipt of her letter on 01/07/16, taking into account average decision times for both the DWP and AP, I consider that her decision may have been made within 20 weeks and there would also be a further 4 week run on to consider. She could have been awarded PIP enhanced from appx 28/12/16’

40. In early 2020, DWP’s special payments team decided to award Mrs X a consolatory payment of £100 for the ‘gross inconvenience’ of DWP’s failure to invite her to apply for PIP upon receipt of her letter, and that the medical evidence available was not robust enough to determine whether Mrs X’s health in 2016 would have meant she qualified for the enhanced rate of PIP. It was noted this was partially because her conditions were variable.

41. The other considerations made by DWP’s special payments team were:

• Mrs X did not contact DWP again after her letter in the middle of 2016 until May 2018 and, if she felt her condition meant she was entitled to the higher rate of PIP, it is reasonable to expect her to have pursued the matter sooner.

• Mrs X received yearly mailshots with her DLA correspondence which notified people to apply for PIP if their condition worsened.

• An extra-statutory payment for loss of statutory entitlement to PIP for the period between 28 December 2016 and 24 December 2019 was not appropriate for the reasons outlined in paragraph 40 and the two points above.

42. We do not consider DWP’s special payments team acted in line with its guidance, or our principles, when it considered Mrs X’s case and decided to award her a £100 consolatory payment. We explain why below.

43. Firstly, we think the fact Mrs X did not ‘chase’ DWP for two years after her 2016 letter, and the yearly mailshots were not relevant considerations. This is because once Mrs X made DWP aware that her condition had worsened, it was DWP’s responsibility (and obligation) to invite her to apply for PIP. It is not a requirement or expectation that claimants must ‘chase’ DWP. Further, DWP has no evidence Mrs X received the yearly mailshots it says it sent to her, and she has told us she did not receive them.

44. Secondly, we recognise DWP’s special payments team, with the help of a clinician, decided it did not have medical evidence that was robust enough to determine whether Mrs X would have received PIP had it invited her to apply and she did so. As part of that consideration, the clinician DWP used said they were ‘unable to robustly advise’ how likely Mrs X’s medical conditions restricted her because of their variable nature. That is, the symptoms of her conditions fluctuated over time.

45. That said, during our investigation DWP asked Mrs X to complete a PIP2 form (which is a form claimants complete outlining their conditions and how they are affected by them) and after reviewing this, and the medical evidence it already holds, a PIP case manager decided Mrs X would have been eligible. DWP has told us this is because the case manager placed more weight on a GP report from 2014, and interpreted the clinician’s advice (paragraph 44) to mean DWP had no evidence to dispute Mrs X’s needs in 2016.

46. DWP told us the fact its PIP case manager decided during our investigation that Mrs X’s condition in 2016 would have meant she was eligible for PIP, does not mean the original decision it made (that is, the decision in 2020 that it could not say what her condition would have been like in 2016) was wrong or unreasonable.

47. We recognise it is accepted in law that two people can reach different conclusions on the same evidence or facts and neither of those decisions be unreasonable.

48. However, while DWP’s assertion is true, its decision in 2020 does not take into account the fact that if Mrs X had been invited to apply in 2016 (and she had done so) she would have either been awarded PIP or, if not, she would have had the right to appeal. She could have first appealed via an MR (a review by DWP) and then to the First-tier Tribunal (the first level of the tribunal system that consider disputes in a wide range of areas, including benefit claims).

49. DWP’s decision maker in 2019 decided Mrs X’s condition warranted a payment of PIP based on Mrs X’s medical evidence and assessment by a clinician, gathered across 2018 and 2019. We have also seen no evidence that Mrs X’s condition worsened between 2016 and 2018. Therefore, we think DWP’s special payments team should have taken account of this because it is a strong indication that, in the circumstances, Mrs X would likely have provided the same evidence in 2016 that she provided in 2018/2019 when she was successful.

50. As such, we consider this means DWP’s special payments team did not ensure they had taken account of all relevant considerations, ignored irrelevant ones, and balanced the evidence appropriately. They ultimately did not ensure they had sufficient information to make a fair and justifiable decision that took into account the impact of DWP’s mistakes. This prevented them from putting things right quickly and effectively.

51. This means we consider DWP did not act in line with its ‘Financial redress for maladministration – A guide for special payments officers’ and ‘Financial redress for maladministration: staff guide’. We also do not consider it acted in line with our ‘Principles of Good Administration’.

52. Therefore, by extension, we also consider DWP’s £100 consolatory payment did not put things right quickly and effectively, which is what we expect in line with our ‘Principles of Good Administration’. We will revisit the impact of this failing below.

Impact

53. As outlined above, we have found the following failings:

• DWP failed to take action to invite Mrs X to apply for PIP when it received her letter dated 29 June 2016, on 1 July.

• DWP failed to take account of all the relevant considerations in Mrs X’s case, fully consider the impact of its mistakes, and take appropriate action to put this right.

54. Had it not been for these failings, we think it is likely DWP would have invited Mrs X to apply for PIP in the middle of 2016 and she would have applied later that year. We think this means Mrs X suffered a loss of statutory entitlement. Using the information DWP has provided to us during our investigation, and how actual events played out when Mrs X applied for PIP in 2018, we think it is likely she would have received the enhanced rate of PIP from 15 November 2017, rather than December 2016 as suggested by DWP’s officer when they first made a referral to DWP’s special payments team (paragraph 39).

55. This is because DWP’s ‘Financial redress for maladministration – A guide for special payment officers’ says there are various ways to calculate how much DWP should pay in thse circumstances. The fairest way to calculate this it to use the actual end-to-end processing time between when Mrs X applied for PIP in 2018 (after being invited to do so) and receiving her PIP award in 2019.

56. In actual events, Mrs X was told on 9 August 2018 to contact the PIP claim line if her condition had changed. However, she did not do so until 15 November 2018. Following this, Mrs X faced difficulties in receiving forms from DWP, returning forms and evidence to DWP, and delays in the Spanish assessment provider sending their report to DWP. These delays are not the fault of DWP. DWP decided to award Mrs X the enhanced daily living component of PIP on 22 November 2019. This is 471 days after she was told to apply. Mrs X started to receive PIP four weeks later, from 25 December 2019, in line with the law.

57. Using this timeline, we think that if DWP had invited Mrs X to apply for PIP on 1 July 2016 when it received her letter then it would have made the decision to award PIP on 14 October 2017 (471 days later). Mrs X would have then received PIP from 15 November 2017.

58. With regard to the consideration by the special payments team in late 2019 and early 2020, we think they would have balanced the evidence appropriately if it was not for the failings identified. That is, they would have taken account of the relevant considerations and ignored the irrelevant ones, as we set out earlier at paragraphs 43 to 52.

59. We think this would have led the DWP’s special payments team to make the necessary payment for Mrs X’s loss of statutory entitlement. We think this because of the reasons set out in paragraphs 43 to 52. In further support of this, as outlined earlier, DWP reviewed Mrs X’s case during our investigation and told us Mrs X is entitled to this benefit.

60. In addition, we think DWP’s special payments team would have awarded Mrs X a further payment in recognition of the impact of its mistakes, much higher than the £100 it awarded her in early 2020, if not for the failings identified. We consider this was a lost opportunity for DWP to put things right for Mrs X when the special payments team considered her case. The fact DWP did not put things right for Mrs X at this point means the impact of its mistakes continued much longer than they otherwise would have.

61. Mrs X has told us she has been significantly affected by DWP’s mistakes financially, physically, and emotionally. She says the physical impact flows from the lack of financial support. She says she was receiving around £90 a month on the lower rate DLA which was not much money, especially when she lost the mobility component of DLA once she moved overseas.

62. The income from DLA and PIP helps Mrs X with her condition and allows her to obtain the support she needs to live more easily. We have already explained that the enhanced rate of PIP is around four times greater than the lower rate of DLA Mrs X was receiving. As far as financial hardship is concerned, this will self-evidently have had a substantial impact on her quality of life.

63. We think this because she says:

• She struggles to afford therapies, such as aqua therapy, acupuncture, cognitive behaviour therapy (CBT) which she previously had access to in the UK, which help her to manage her condition.

• While living in Spain, she and her husband rented homes that needed modifications, like handrails and a walk-in shower. Because of her low income, she had to save up for these changes and often struggled until they could afford them. In 2017, they had to move out of their rented home because she could no longer climb the outdoor stairs, and an 8,000-euro stairlift was needed. Unfortunately, the stairlift was too expensive.

• Her husband, who was 71 in 2016, had to continue to work as an online career coach until he was 76 to ensure they had additional income to live and support her deteriorating condition. She says this upset her because instead of enjoying retirement, her husband continued to work to support her.

• Due to cataracts in her left eye, which started developing in 2013 but were not severe enough to require surgery in the UK before she moved abroad, she couldn't drive in Spain. The cataracts worsened over time, especially in her left eye, and since Spain has right-hand traffic, driving became impossible for her. This affected her independence. She had to rely on her husband to drive her around or take taxis which she couldn't always afford. As a result, she missed out on outings.

• She had considered purchasing a mobility scooter to help her travel short distances and that could be packed into the boot of a taxi, or her husband’s car, to alleviate her difficulties with walking when she managed to get out. However, the 6,000-euro price was too expensive.

• In 2020 her cataracts had worsened enough to qualify for surgery that would allow her to legally drive in Spain. However, the cost to have this done privately was 3,000 euros per eye. Instead, she had to wait four years to have the surgery under the Spanish National Health System.

64. Mrs X says her conditions naturally affect her quality of life and she is often in pain and has difficulty carrying out the most basic of tasks. Above we can see the types of things Mrs X needs to assist her with basic living.

65. Aside from this, she says the emotional impact arising from not receiving PIP is significant. This is because it was distressing to be in pain, or to feel like her independence was lost or diminished. She says she appreciates that her husband helps her, but this is also upsetting because she knows it prevents him doing things he otherwise would without her. As such, she says he too lost some of his independence. She has also told us that she feels she has been ‘fighting’ DWP for years and it simply would not listen. This was frustrating for her.

66. We recognise Mrs X lives with conditions that are serious and affect her in several ways. Naturally, these will cause her physical and emotional impacts that are not directly because of DWP’s failings.

67. That said, we consider DWP’s failings are likely to have compounded the impacts that arise naturally from her conditions. We consider this is particularly on an emotional level but does not diminish the physical impacts that would have been lessened had Mrs X received this greater income. The significant reduction of income meant Mrs X lost the opportunity to make decisions and put things in place such as specific modifications and purchases, that would have helped to alleviate some of the difficulties and effects that arise from her condition.

68. Further, we consider it would have been frustrating for Mrs X to go through DWP’s and ICE’s complaints process and not have achieved a remedy that was appropriate given the failings found, and the impact arising from them.

1. Mrs X complains the Department for Work and Pensions (DWP) misadvised her about transitioning from Disability Living Allowance (DLA) to Personal Independence Payments (PIP). She says DWP told her in 2015 to wait to be invited to apply for PIP but it then failed to invite her, and missed the opportunity to assess her for PIP in 2016 when she told it her health had got worse. She says she was eventually awarded PIP in 2019 after she applied for it in 2018. She says DWP accepted that it should have invited her to apply in 2016 but refused to backdate her award because it could not establish how serious her condition was before 2018. DWP gave her £100 in recognition of its mistakes, but Mrs X says this is not enough.

2. We recognise Mrs X’s experience has been long-running, distressing, and has posed significant challenges for her.

3. We have found no failings in DWP’s communication with Mrs X about when she should apply for PIP. However, we found DWP failed to act on a letter Mrs X sent it in June 2016 when she told it her condition had got worse. We also found failings in the way DWP considered its mistake. We think it failed to fully consider its own obligations, relevant considerations and, subsequently, the impact of its mistake. This led to DWP awarding Mrs X a £100 consolatory payment that we think was too low.

4. We consider DWP’s failure to assess Mrs X for PIP in 2016 meant she was without PIP for several years (which is paid at a rate around four times higher than Mrs X’s DLA award). We consider this caused Mrs X significant hardship which impacted on her quality of life for that period. We also consider Mrs X experienced significant distress and frustration because of her difficulties and when, despite her complaints, DWP did not fully recognise its mistakes and failed to put this right for her.

5. We therefore partly uphold this complaint.

6. We recommend DWP writes to Mrs X to acknowledge the failings in this report and apologise for the impact arising from them. We also recommend DWP makes a payment of £6,941.15 to Mrs X, which is equal to the amount of PIP she would have received between November 2017 and December 2019 had it not been for DWP’s failings. DWP should also make a compensatory payment of £830.07 in recognition of the decreasing value of that payment over time. We also think DWP should make a further financial remedy payment of £2,800 given the impact of its mistakes, and the time taken to resolve matters.

7. Finally, we recommend DWP reviews learning from this case, which it can then use to inform its service more generally and share its findings and any evidence of the changes it has made, or plans to make, with us.

69. We partly uphold Mrs X’s complaint.

70. In considering our recommendations, we have referred to our ‘Principles of Good Administration’ and ‘UK Central Government Complaint Standards’. These say that where poor service or maladministration has led to injustice or hardship, the organisation responsible should take steps to put things right. They also say organisations should put things right and, if possible, return the affected person to the position they would have been in if the poor service had not occurred. If that is not possible, they should compensate them appropriately.

71. We have also referred to our ‘Severity of Injustice Scale’ which we use to help determine how much financial remedy an organisation should pay complainants dependant on the impact its failings have had on them. We have also considered other cases where we have found a similar impact arising from failings by public organisations. Having done so, we consider the impacts outlined above fall into ‘Level 4’ of our ‘Severity of Injustice Scale’. This is because we consider the impact on Mrs X to have been hardship that affected her quality of life for two years and one month, and emotional distress that lasted for several years.

72. In line with the above, we recommend that within six weeks of our final report DWP should:

• write to Mrs X to acknowledge the failings identified in this report and apologise for the impact of those failings • pay Mrs X £6,941.15 which is equal to the PIP she would have received between 2017 and 2019 (minus the DLA payments she received during the same period), plus the additional compensatory payment of £830.07 in recognition of the decreased value of this payment • pay Mrs X a further financial remedy of £2,800 in recognition of the impact of the failings identified (This takes into account the £100 consolatory payment DWP has already paid).

73. Our ‘Principles of Good Administration’ and ‘UK Central Government Complaint Standards’ also say organisations should seek continuous improvement and where necessary, ensure changes are made to policies, procedures, systems, staff training or all of these, to ensure maladministration of poor service is not repeated.

74. We think DWP should review its handling of this case and consider whether any learning could help improve the service it gives to customers more generally.

75. As such, we recommend that within 12 weeks of our final report DWP should:

• review learning from this case, which it can then use to inform its service more generally, and share its findings and any evidence of the changes it has made, or plans to make, with us.

76. We recognise how challenging and distressing this experience has been for Mrs X. While our recommendations will not change Mrs X’s experience we hope our investigation has reassured her that where things did go wrong, DWP is committed to putting things right for her and, where necessary, will improve its service moving forward.