PIP decision on Majority of Days.

Hi JG2,
First, you may be able to get DWP to agree an extension for the MR. (Ring them and request- say you're awaiting medical evidence. ) Secondly, although theoretically the MR has to be sent in within 1 month of the decision date, you can put in a late MR. You need to show you have a reasonable excuse. Awaiting a medical report for a week or 2 would I'm sure fit within being reasonable. You can send in an MR up to 13 mths late, but the later you send the better the excuse! Illness, bereavement, other difficult personal circumstances could all amount to reasonable excuse, receiving incorrect legal advice from a properly qualified advisor or lawyer, might also qualify.
If the delay for the med report is unlikely to very long it might be preferable to await this and send in a complete MR late. If you send in a partial MR, even if you ask DWP to wait they may not actually do this!

Majority of days
This derives from PIP Regulations 2013 - Reg. 7. -
Please see the text here
www.legislation.gov.uk/uksi/2013/377/regulation/7
Basically DWP ( or the tribunal if on appeal,) need to consider whether each descriptor activity can be performed 'reliably' for over 50% of all the days. Reg 7 also permits aggregating activities in a section to achieve over 50% of days.
I mentioned 'reliably' this is a shorthand way of describing Reg 4(2A). - this requires 4 criteria to be met - all 4 are needed.
Safety
Acceptable standard
Reasonable Time
Repetition.

Let's look an example.
Descriptor 1 deals with the ability to cook/prepare food. (A simple meal for one using fresh ingredients. )
If you have poor grip and drop items, knives or spill hot food then it is unlikely to be safe.
If pain is a problem, or you make eg a terrible mess in the kitchen, or maybe you have no idea whether food is cooked, it's likely this isn't ti an acceptable standard
Perhaps your fine motor skills or mental processing mean it takes you a really long time to chop the carrot- more than twice that of your non disabled friend - you fail the reasonable time test.
Repetition is perhaps the main issue here. The test requires repetition across the whole day as many times as reasonably required. Now cooking is likely to be 3 or 4 times per day. Toilet needs could be 5 times or much more if incontinence- so each task has its own repetition. If you miss a repetition, unless for a very insignificant time, you will fail to repeat and can't meet Reg 4(2A).

This could be relevant for your partner can do PIP tasks for part of the day or part of the week. DWP are notoriously bad at Reg 4(2A). From your post it seems like they may have got the test a bit confused!
If you can't do all the day's repetitions in each task then it counts towards your over 50% of days. So to go back to the cooking example - if you can't actually cook etc etc on a day, you're not 'safe, 'acceptable' or quick enough these days will also count towards the 50% If you fail to 'repeat' for the whole day this also is another day that counts. If you're not safe/acceptable/quick enough then this means you also can't 'repeat'.
Reg 7 provides that you only score the highest value of points, where more than 1 section in each descriptor applies equally. Or alternatively most prevalent level will be scored where different levels are satisfied unequally.
This means if you have more than one disability with different effects, you can aggregate eg 20% of days not being able to chop vegetables due to hand pain problems and 40% of days due to migraine and sight issues.

If you are not 'reliable' this indicates a degree of help is required This could be a gadget - aud/appliance or physical help or despite either if these are not 'reliable' for over 50% of days then you are likely to fall within the 'cannot do at all category.
This is the approach for all descriptors.

If however, the sum total of all disabling health conditions means that you can still perform the relevant descriptor activity/activities for the majority of days, taking account any aggregation, then no points can be scored. So using the previous example. Cant chop veg hand problems = 12% and migraine problems are only 10% you have only achieved 22% of days. No descriptor in the set will ever apply.
Each descriptor set is mutually exclusive. You can aggregate from within the same set, but you can't borrow from another descriptor set.
If you are unsure if any descriptor/s within a set apply, do a diary. Note difficulties- including can not/ reliability problems including potential safety issues like eg normally having shaking hands, or possibility of epileptic fit, or non injury falls, dropping of items etc as well as actual 'reliability' concerns such as slowness and non repetition. A tally at the end of a week or 2 will soon show if your partner reaches the magic over 50% of problem days!
You can't get a new/upgraded mobility element after state pension age, so it is important to get this sorted now, or at least do MR/appeal, which can then be able to make a mobility award even if decided later.
I have used cooking as an example as that is easier to explain. The process and rules are the sane for mobility.
I hope this helps.
LL26

Hi Tess2012

If you think that the original tribunal (First tier Tribunal) has given the wrong decision, then you will need to ask within one month of the decision for the Written Statement of Reasons AND the Record of Proceedings. Please note you should ask for the Written Statement of Reasons - often abbreviated to WSOR. (The ROP may well comprise of a cd recording if this was a phone conference hearing - if so you may need to transcribe what's said, or at least write down the crucial bits and a time.) Compare the ROP/transcript with the WSOR. There may be glaring errors. Easy things to spot are discrepancies such as in ROP poor mobility is mentioned, and later in WSOR 'claimant confirmed he had no walking difficulty'. That would be a blatant example of where an error of law has occurred. Often the errors are less obvious to spot. Looking very carefully at the descriptors and comparing this with the WSOR is a good idea.

Sometimes the original Tribunal will award no points because they have applied the wrong test. An example of this would be where the tribunal say 'he can cook because he can reheat ready meals'. This would be wrong as the test is cooking a simple meal from fresh ingredients. If you can find at least once material error of law then you can appeal.

What you need to do, once you have the WSOR/ROP, and have found the error/s of law, then you will need to apply for the First Tier Decision to be set aside and/or leave to apply to the Upper Tribunal. The Regional Judge will do through your request, and he/she may be able to agree there has been an error of law. He will then send the case back to a different tribunal panel at first tier to rehear the case. If the Regional Judge is not sure, or perhaps this is a point of law that several people have been arguing, then the case might get referred straight away to the Upper Tribunal. Unfortunately this all takes time, but of course, if you subsequently win the appeal, money will get back dated to the claim or renewal date.

There are many law centres and CAB etc that can assist with appeals from the first tier tribunal, and an advisor would be able to help draft letters, and/or represent you during the appeal, this is often free of charge. Have a look at advicelocal.uk or you may want to try and contact a law centre in your area www.lawcentres.org.uk . Hopefully there will be one near you.

I wish you luck, and hope that you can resolve any appeal.

Gary