Appeal refused again by First Tier Tribunal

Sham65

Hi, new here so please bear with me.  I'm in Scotland so that may make a difference to advice.

I didn't agree with my assessment, mandatory reconsideration was rejected, appealed to First Tier Tribunal which was refused, appealed to Upper Tribunal, they decided I should have another FTT and again it's been refused. 

I know the assessment and decision is wrong but it's almost three years now since I completed the review form and it's really wearing me down (possibly what the DWP want, applicants to just give up) and I am seriously considering ending my life as I can't go on like this.  I am receiving counselling for suicide ideation but this is due to end soon.

I've requested a statement of reasons and, if I can find it in me, will appeal again to UT.  I've done all this so far by myself as I couldn't find anywhere that could advise and support me at this level, and I can't afford a solicitor and don't qualify for legal aid.

Any advice gratefully received.

Sham65

Also considering whether to just ask for a review - can I do this while an appeal is ongoing?

Rosie_Scope

Hi @Sham65, welcome to the community, sorry to hear you've been going through so much. We do have some members from Scotland but it might take a little while for them to find your post, hopefully they can  offer some first-hand experiences soon.

Have you had any contact with your MP at all? Sometimes they can help with these sorts of things or might be able to point you in the right direction for some advice.

Have you been offered any ongoing care for your mental health after your counselling stops?

I will be sending you an email today, so please keep an eye out for that. I hope things start getting easier for you soon

bernadetta

It sounds like you have been through a lot. I was wondering if you could contact one of the law centres? You do not need to to be eligible for Legal Aid, and majority of them would gladly accept a case with the UT involvement, as long as they have capacity. Some law centres accept the clients outside of their catchment area and over the phone (remote support), so it is worth checking that option. You would need to Google them and check if they could help you considering you live in Scotland. I also would advise you to check if any of the organisations like Citizen Advice, of a family support worker, could contact CPAG on your behalf and dicuss the case in detail (
https://cpag.org.uk/welfare-rights/support-advisers/advice-line-advisers). They provide the second tier advice to advisers, therefore, will not be able to assist you without the middle man.

Re: your thoughts on ending it all,  considering that you mentioned this ordeal's effect on your mental health and suicidal ideations,  I wonder if your GP could refer you to a Social prescriber or a family support worker, or a floating support, etc, (do you have those in Scotland?), who could assist in you all of that. I also would encourage you to be upfront about those thoughts with the DWP and the Tribunal (if you respond to the SoR and the request the permission to appeal to UT). 

If you still have any energy left, and are considering requesting the Statement of Reasons, then it is worth it, as it gives you an opportunity to take it further, and as you know, without it there is a very short window to apply for a permission to appeal to UT.

However, given it has been three years, I wonder what are your other options. You could claim PIP again, provided there has been worsening of your condition/ a new condition giving entitlement to the descriptors. Especially if it was a review of the existing award. 

Other than that, if you would have an opportunity,  it would be worth speaking to someone and thoroughly go through the reasons for the appeal not being allowed, then the UT setting aside the FTT's decision; and finally assess whether there is a reasonable prospect of success for the current, lost appeal. Was the first FTT decision set aside based on procedural matters or there was an error of law? If procedural, and later the second FTT did not allow the appeal, then there is a chance that you did not meet descriptors or scored not high enough (8points)in the first place and when the procedural issue was resolved, it uncovered the reality of you not meeting the entitlement criteria. If error of law,  then someone experienced could assess its merit. 

I feel bad not being able to add anything more helpful, but as you are aware, at the end of the day, there is no proper advice without actually seeing the documents. It would be really good if you could speak to someone who is not emotionally involved, and who could calmly read the decisions and let you know if you in fact  meet the descriptors, because if you do not, you could spend your energy and resources elsewhere. Even someone who does not have experience in appeals, at Citizen advice, could sit down with you and go through the evidence and points to assess it. It does not have to be binding, but could help you make decision on your next steps. 

bernadetta

You also asked whether you could request the review, but I'm not sure if I understood your question.

 If there is a current award in place, were you appealing the original decision, or the review of the award which presumably gave you less points or maintained it on the same level? 


The only way to change the decision, as each decision is binding by law, is to challenge it and later appeal. 

However, as you know, the Tribunal can only decide on the award you are actually appealing, e.g. decision presumably made 3 years ago. Any new condition or development cannot be taken into account.

 Therefore, if you are already getting PIP/ADP and while appealing the decision from 3 years ago, and provided there was a worsening of your conditions giving grounds for a higher award ( either different descriptors or more descriptors or both), then I cannot see why you could not initiate the review and list the worsened or new conditions. As of now, the decision made by the DWP (Social Securiry Scotland) was not changed by any of the Tribunals, so it stands. It was made 3 years ago, so development in the condition is absolutely understandable. Remember that the review would be carried out against conditions (descriptors) as per the decision, not what you argue or believe you should have scored. So, if 3 years ago, you were given, let's say, 9points ( which you are appealing because you believe you should have scored 12), then when speaking to the DWP/SSS, point to the specific needs in this 9 points decision, and how those needs changed, e.g. ' I could get in and out of the bathtub 2 years ago, but now I need assistance with washing my upper body because of this new condition'.

If the decision you are appealing was not to award you PIP/ADP, then there is no possibility of reviewing it through any other way than you have already taken, meaning appealing, because there is no review of the non-existing award. 
Instead, you could claim PIP/ADP again, as explained above, if new condition or worsening is present giving grounds for entitlement. The new benefit if awarded, will be binding from the future date, will not cover the current decision under appeal. While this new decision is being made, the current appeal will continue if you go to UT. 

Lastly, if your current award gets reviewed and changed in your favour (or awarded if you had no award), then it is binding from its effective date. Therefore, if you win your appeal on the third attempt (either UT changes it or the third FTT),  they could only change the decision from 3 years ago to the most current decision and pay for this period. They would award you arrears of benefit for this closed period and not beyond this. The new decision could be changed by the same process, but again, it is binding, the Tribunal dealing with the current appeal will not be able to make the determination of the new decision. If you initiate the review, and are not happy with it, you would need to start the process of challenging and appealing it again.. 

I do not know your circumstances,  so difficult to explain it all, but I hope one of those options describe your situation, and it is helpful. 

Another matter, please speak to advisers in Scotland, as if there are any differences, then all I said here might not be relevant!