Disabled woman denied PIP

10 Oct 2019

A woman suffering from dissociative fugue and multiple other serious physical and mental health problems has won her appeal against a decision not to grant her a Personal Independence Payment (PIP) when her Disability Living Allowance was merged into the new regime.

The case of 50-year-old Nicole De Rafael from Fulham, represented by London law firm Osbornes Law, highlights how wrong official assessments of a person’s disability can be, the importance of appealing them, and just how labyrinthine the law around social security is.

According to the Department for Work and Pensions’ own research, only 9% (300,000) of approved claims were appealed. However, once appealed 65% were successful.

Despite her difficulties, Ms De Rafael had to go through several hearings over two years to establish her entitlement to PIP. During hearings before the First-tier Tribunal, she became tearful and dissociated – people with dissociative fugue temporarily lose their sense of personal identity.

In this case, the Legal Aid Agency granted exceptional case funding to ensure that Ms De Rafael was properly represented, itself a rare occurrence.

In broad terms, entitlement to PIP is based on the extent to which the claimant needs help taking part in everyday life (a daily living component) and/or help with getting around (a mobility component) due to long-term ill-health or a disability.

It is a points scheme based on the individual’s ability to perform a range of tasks or activities. PIP payments are made at the standard rate if eight points are awarded on one or both of the elements, and at an enhanced rate if 12 points are awarded.

Ms De Rafael – whose other conditions include diabetes, depression, severe anxiety and heart disease – was in receipt of Disability Living Allowance until 16 May 2017. She was then assessed for PIP and awarded zero points by the Department for Work & Pensions (DWP). After a reconsideration, she was awarded one point for daily living. A further internal appeal increased this to three points for daily living and 10 points for mobility.

On further appeal, the First-tier Tribunal awarded Ms De Rafael six points for daily living and 14 points for mobility. However, this decision was set aside by the Upper Tribunal, which found that the First-tier Tribunal had made errors in its assessment and ordered that a new tribunal undertake the process again.

That tribunal awarded her 13 points for daily living and 14 points for mobility, meaning Ms De Rafael has now received the maximum PIP award.

Desmond Rutledge of Garden Court Chambers appeared in the tribunals on her behalf.

Nicole De Rafael says: “This has been a hugely stressful time that has only made me more ill. It has become clear to me that the rules are written to confuse ordinary people and ultimately try and cut social security spending, irrespective of an individual’s needs or how much damage it does.

“I am immensely grateful that Arjun and Desmond were able to secure legal aid for my fight. The irony should be lost on no one that it took government money from the legal aid pot to ensure that I received what I need to live on from the social security pot. It’s madness.

“I am speaking out because I want to give others the courage to fight. The government should not be allowed to get away with trying to hoodwink people in genuine need. Shame on them.”

Arjun Jethwa, a solicitor in the housing and social care team at Osbornes Law, says: “The case of Nicole is a depressing sign of how badly the PIP regime has been introduced and the huge unfairness inherent in the system that has seen many people on Disability Living Allowance see their benefits reduced or cut altogether when transferred to PIP.

“Had we not been able to convince the Legal Aid Agency to fund her case, Nicole – a woman recognised by all her medical professionals to be highly vulnerable – would have been left in the impossible position of trying to navigate the system herself.

“The DWP publishes social security legislation in 13 volumes, and a decision maker’s guide in 14 volumes – it is not an easy task to get to grips with, particularly if you’re ill.

“The good news, however, is that Nicole’s case shows how bad decisions can be challenged and overturned. But it is shameful how many hoops she has had to jump through. It took two years to prove her entitlement. This all had a direct impact on her health and wellbeing to reach what should have been clear from the start the right outcome. It is clear that the initial assessments require changing to avoid this sort of situation recurring.”

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