PIP and Fluctuating Conditions: The 50% Rule Explained

Regulation 7 of the PIP Regulations 2013 says that where one descriptor is satisfied on over 50% of the days of the required period, that descriptor applies. A descriptor is satisfied on a day in the required period if it is likely that, if you had been assessed on that day, you would have satisfied it.

DWP's guidance for assessors says that a “snapshot” view of your condition on a particular day at a particular time is not an adequate assessment.

The “more than 50% of days” test is not measured over a single week. For a new claim, regulation 7 sets the required period as the 3 months ending with the prescribed date together with the 9 months beginning with the day after it:

• The 3 months ending with the prescribed date, which for a new claim is the date of claim or, if later, the date the conditions were first met
• The 9 months beginning with the day after the prescribed date

GOV.UK describes this as expecting to have difficulty more than half of the days over a 12-month period. DWP's guidance for assessors says the descriptor choice should be based on consideration of a 12 month period, and that assessors should broadly consider your likely ability in the 3 months before the assessment and in the 9 months after.

Once you have an award, regulation 7 applies the same 3 months and 9 months to each day of the award in most cases. In general, assessors record function over an average year for conditions that fluctuate over months, per week for conditions that fluctuate by the day, and by the day for conditions that vary over a day.

Regulation 7 sets out what happens when more than one descriptor in an activity is satisfied on different days:

• If two or more descriptors in the same activity are each satisfied on over 50% of the days, the one that scores the higher or highest number of points applies
• If no descriptor is satisfied on over 50% of the days but two or more descriptors that score points are satisfied for periods which, added together, amount to over 50% of the days, the descriptor satisfied for the greater or greatest proportion of days applies
• If they are satisfied for the same proportion of days, the one that scores the higher or highest number of points applies

DWP's guidance gives an example: if descriptor B is likely to be satisfied on 40% of days and descriptor C on 30% of days, descriptor B should be chosen.

The guidance also says that where there is variability, the assessor should consider what the need is on the majority of days. For example, if you can usually prepare food unaided but occasionally need an aid because of a particularly acute period in your condition, you will not be assessed as needing an aid, as it is not needed on the majority of days.

The PIP2 form asks about each activity separately. These are the things it asks you to tell DWP:

• For each difficulty, how often you have it, covering both good and bad days
• What the difficulty is, how often you have good days and bad days, how or why your condition varies over the course of a day, week or year, and when you started to have difficulties
• How you manage each activity, including any aids or specialist equipment you use, help you get from someone else, and help you need but do not get
• Whether you can complete each activity safely, within an acceptable time, to an acceptable standard and as often as you need to

DWP's guidance tells assessors to ask what you can do on good days and bad days, and how many good and bad days you have over a period of time. It also tells them to record how frequent the fluctuations are, how long exacerbations last and, on balance, how many good days or weeks and how many bad ones you experience over a specific period of time.

If you think the report has made an error or missed important evidence, or you disagree with the reasons for the decision, you can ask for mandatory reconsideration.

See our guides on challenging a PIP assessment report and the PIP appeal process. Regulation 7 of the PIP Regulations (Northern Ireland) 2016 and regulation 10 of the Adult Disability Payment regulations in Scotland say the same: where one descriptor is satisfied on over 50% of the days of the required period, that descriptor applies.