PIP and diagnosis

Introduction

With NHS waiting lists at a record high, many advisers will support clients in 2024 who have long-term conditions but who are still awaiting a formal diagnosis. What advice should we give to a client in this situation who wants to claim PIP?

The right advice will depend on your client’s circumstances, but the short answer is that they can in law get an award of PIP without a diagnosis. What is important is that the claimant satisfies the two requirements set out below: (1) their ‘physical or mental condition’ limits their ability to carry out the PIP activities, and (2) their difficulties will last long enough for them to meet the ‘required period’ condition.

A diagnosis can be strong evidence that your client satisfies these requirements, and in practice may be relevant in deciding entitlement, but it is only one of several acceptable types of evidence.

‘Physical or mental condition’

To get PIP, the claimant’s ability to carry out daily living or mobility activities must be ‘limited by [their] physical or mental condition’.1

This does not mean that the claimant must be diagnosed with a named illness or disability in order to get PIP, or that they must have the results of a formal assessment. It simply means that their difficulties with the PIP activities must have an underlying cause that is either physical or mental. An undiagnosed mental or physical condition can be enough to satisfy the requirement.2 But a mere personality trait or habit (for example) cannot.

The required period condition

To get PIP, the claimant must normally have had their symptoms for at least three months and expect to have them for a further nine months.3

Without a diagnosis, it can be harder for the claimant to show how long their difficulties are likely to last.

Diagnosis as evidence

So, to quote some relevant caselaw: ‘It is not necessary to have a diagnosis of a particular condition in order to qualify for a personal independence payment. [A diagnosis] may, though, be relevant to entitlement.’4

A diagnosis can be relevant to PIP entitlement because it is evidence: of your client’s underlying condition, often of their functional difficulties, and of their likely prognosis.

A diagnosis is usually seen as objective and reliable and it may be treated as the strongest evidence your client has.5 Without a diagnosis, the DWP (and the tribunal) will rely on other evidence to decide their claim.

How do I give my client the best chances of success?

Making a case without a diagnosis can be difficult but it is not impossible. Decision makers must consider all the evidence available, and that includes the claimant’s own oral and written evidence, which can sometimes be enough on its own for an award of benefit.6

The standard of proof for PIP, as in other benefit decision making, is the balance of probabilities. In other words, the DWP (and the First-tier Tribunal) just needs to accept your client’s account of their condition, difficulties and prognosis as ‘more likely than not’.7

There are various types of supporting evidence that can corroborate a claimant’s own account. These include:8

• medical reports, GP notes and assessments by non-medical professionals, where these record the claimant’s symptoms and history, even if they do not go as far as giving a diagnosis;
• statements from the claimant’s family, friends and wider support network;
• the PIP assessment provider’s report.

The claimant might also strengthen their case by explaining why they have not yet received a diagnosis – for example, by setting out the specific referral process and waiting times that apply to them, or by detailing how their particular condition or lack of support has stopped them from seeking medical input.

How should we deal with the required period condition?

When it comes to satisfying the required period condition, in the absence of a diagnosis your client might:

• argue that their condition is inherently likely to be long term – for example, they reasonably believe it is degenerative;
• use past experiences as evidence about how long their current difficulties might last– for example, if they are experiencing a period of severe depression and they have had similar periods before;
• estimate how long it might reasonably take for them to recover from this kind of condition based on publicly available information – for example, using information about treatment waiting times on the NHS website.

What about ADHD, autism, and other hard-to-evidence conditions?

Adults with undiagnosed ADHD or autism might find it particularly difficult to make a successful claim for PIP. First, they might face very long waiting-times for assessment and support, delaying their access to supporting evidence. Second, caselaw makes it clear how difficult it sometimes is to establish that a claimant’s difficulties are caused by a ‘physical or mental condition’, rather than being behaviour or personality traits that do not have an underlying physical or mental cause.9 Even where the DWP accepts someone’s account of their difficulties, it may be reluctant to make a PIP award where there is uncertainty about the root cause of those difficulties.

Claimants with other ‘invisible’ conditions might face similar difficulties. This can mean that there is pressure on the claimant and their support network to pull together alternative evidence to support their PIP claim. Unfortunately, this burden often falls on the clients who may be least able to cope with it.

This does not mean that there is no merit in claiming PIP in these cases but, as always, it is important to manage your client’s expectations.

What should you expect at tribunal?

In practice, First-tier Tribunals often look for evidence of a diagnosis. But the tribunal would be wrong to insist on such evidence, either explicitly or implicitly. In DE v SSWP, the Upper Tribunal considered how the First-tier Tribunal should approach a case where there is no diagnosis. That case was specifically about undiagnosed alcohol dependency.

‘If after speaking to the Appellant, it appears there is not likely to be [a] medical diagnosis in existence or limited reference [to their condition] within their medical reports, for example in the case of an Appellant who is in denial [about the condition] or who rarely attends their GP to obtain medical assistance with the condition, it is within the remit of the medically qualified member of the panel to make suitably appropriate enquiries (…) to gain a medico-legal understanding of the Appellant’s [condition]. While it is never appropriate for the Tribunal to diagnose an Appellant with a medical condition, it may be highly evident from the evidence, if accepted, that the Appellant [has a limiting physical or mental condition] as a matter of fact.’10

What about adult disability payment in Scotland?

Adult disability payment (ADP) is replacing PIP in Scotland. The legislation that established ADP mirrors the PIP legislation, and PIP caselaw is therefore likely to be persuasive (although not binding) in ADP cases.

In the first piece of ADP caselaw, published in November 2023, it was found that the First-tier Tribunal for Scotland had drawn strong inferences from the claimant’s lack of medical records or diagnosis but had ‘erred in law by failing to consider exercising its inquisitorial powers to recover further evidence.’11