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Tribunal overturned PIP decision - what happens next?

LDBWILLI

This discussion was created from comments split from: Changing from DLA to PIP - any advice?.

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LDBWILLI

Hello I've just received a letter regarding my court appeal for PIP and the tribunal has overturned the decision from standard to enhanced on the mobility part , but I don't know what happens next , can anyone help ?

LDBWILLI

I was unsure where to put the above questions regarding tribunal overturned decision on PIP.

BenefitsTrainingCo

Hi LDBWILLI

The tribunal should provide you with a written decision notice and this should also be sent to the DWP. The DWP must then change its decision and pay you the arrears for what they owe you. There is sometimes a short delay in this happening but it shouldn't be more than a week or so. I suggest you contact the PIP office on 0800 917 2222 and check they are processing the new decision. If you are not happy with the response you get i suggest you let us know what happens and we will advise further.

The new PIP decision might have a positive effect on your other benefits such as employment and support allowance and housing benefit. Generally, it is good practice to tell all of the other offices involved in your benefits about the new decision.

David

BenefitsTrainingCo

Hi don4u2201,

You don't have to attend a tribunal hearing. You should be given the option of an oral or paper hearing (usually you make this decision on the appeal form). A paper hearing means the independent tribunal make a decision on the documents alone. An oral hearing means you go along and the appeal panel listens to the claimant & can ask questions directly. I'd always recommend opting for an oral hearing if you can - this means the claimant attends in person, with a representative if you've asked to bring one, or with a friend or family member to assist her.

Both the claimant and the DWP have to agree to the paper hearing, but it's unusual for the DWP to insist on an oral hearing if you ask for a paper one.

The advantage of an oral hearing to claimants is that the tribunal gets to see the claimant and is more likely to understand how their condition affects them. It's not essential, but the statistics show people who attend oral hearings are more likely to be successful with their appeal.

If you want an oral hearing, but it's not possible for the claimant to attend because the seizures are so frequent, then you could ask for the hearing to be as close as possible to your home or even (very rarely) in your home. If you're going to ask for this, try to include a letter from the claimant's doctor explaining why she needs this. Another option would be to ask for the claimant to appear by video link or telephone - again, you'd need to explain why, and provide evidence if possible of the problems she has.

You could argue that because of the nature of her condition, the tribunal hearing won't be accessible to her unless it is provided in one of these alternative ways. But if you prefer, another option is to ask for a paper hearing and try to provide as much evidence as possible. It's a good idea, if you can, to get a benefits adviser (eg from a Citizens Advice Bureau, law centre or local disability information centre) to help you by looking at all the documents (called a 'submission') so they can make sure that the papers back up your side of the argument.

I hope that helps, and the appeal is a success!

Will

don4u2001

Thank you so much for getting back to me we have a representative from the cab and I have sent the form for the appeal back and put will attend but my mum she will start to stress a lot and when she is a little stress she has her siezers

LDBWILLI

Hi David
Thank you for your reply and the advice , the tribunal did say that a copy of their decision would go to the DWP but it could be overturned by them if they didn't want to pay the difference between standard and enhanced payments it also said this was the first tier
what ever that means. So I'll just keep my fingers crossed and wait to see .

Thank you
LDBWILLI

BenefitsTrainingCo

Hi LDBWILLI

I think what the tribunal is referring to is the possibility of the DWP challenging the decision by applying to the Upper Tribunal for permission to appeal the decision on a point of law. Basically if you had lost your appeal at the First-tier Tribunal you would have had an opportunity to apply to the Upper Tribunal for the decision to be set aside and the DWP have the same right.

In my experience the DWP are careful of doing this because decisions of the Upper Tribunal set a precedent and are binding on decision makers and First-tier tribunals. If they decide to try and challenge the decision then they must first request the First-tier Tribunal Judge's written statement of reasons for the decision and you will also be sent a copy of them. They have one month from the date of the tribunal's decision to request them and one month from the date they receive them to make their application. Unfortunately should they decide to pursue a challenge in this way they can put off implementing the decision of the tribunal until the matter has been dealt with.

Finally, for reasons of balance and perspective I must say that as a representative who has attended a significant number of tribunals during the past twelve years it is extremely rare for the DWP to seek to challenge First-tier tribunal decisions. Sadly though this might be about to change as they are currently in the process of recruiting 86 new presenting officers who will be charged with identifying cases which can be appealed to the upper tribunal.

Best wishes

Paul

DianaW

Paul's comments are very reassuring but don't entirely end my worries.

Last week, a first-tier tribunal overturned the DWP's decision (in late June) to stop paying me ESA and recommended that I not be reassessed for two years because of the incapacitating effects of acute stress and depression.

I was startled to read the standard form accompanying the written decision, however, since it stated that the tribunal had no power to enforce its own decision - and did not suggest how the claimant could proceed to get that enforced if the DWP simply did not obey it. Is there any power to compel the DWP to obey the tribunal's decision, if it does not appeal it?

My position is further complicated because, on the basis of a new sick note from my GP, I had begun a new ESA claim and - while not having yet been paid any benefit at all under that claim - I have been sent a further ESA50 to complete and return by the start of December. That time-limit expires before the time within which the DWP could appeal the tribunal's decision last week. Do I still have to complete that form, in case the DWP either ignores or appeals the tribunal's decision? The process of completing the form is both exhausting and extremely distressing, which just makes me more ill than ever - at just the time when my GP and the tribunal are trying to let me have time to recover.

BenefitsTrainingCo

Hi Diana,

If the tribunal has overturned the DWP decision then the DWP should carry out the tribunal's decision straight away. The tribunal decision replaces the DWP decision and it must be put into practice as long as the DWP are not appealing. They can't ignore the decision. If the DWP wants to appeal, they might consider whether to go to the Upper Tribunal, and suspend benefit whilst they think about whether to do so. If they apply for permission to appeal to the Upper Tribunal, then that means your first tier tribunal decision can be suspended, for the time being.

So you need to find out what the DWP are intending to do, but if they are NOT considering appealing or seeking leave to appeal, then they must pay you.

As regards the new ESA50, you may not have been paid under that claim because, if you've already had a negative work capability assessment, you can't get ESA whilst you're waiting for a new assessment, unless your condition has deteriorated or you have a new condition. Given that the time limit for the completed ESA 50 expires before the time within which the DWP could appeal, I'm really sorry but the best advice to protect your position has to be to complete the ESA 50...Just in case the DWP do appeal.

I'm so sorry. I hope you can see the logic of this, not that it helps. As Paul says, it's been quite unusual for the DWP to seek leave to appeal in the recent past, but I can't guarantee that they won't. I hope you can get as much support as possible with completing the new ESA50 as I know it's absolutely exhausting and nerve-racking.

Will

LDBWILLI

Hi don4u2001
I opted for paper hearing rather than oral as I knew it would be too stressful for me , so I wrote a detail account of my appeal stating that quite a lot of the things stated from the Capita rep were not true she said I'd done or said things which was a lie. After explaining my whole situation I also thanked them for taking time to hear my appeal. They wrote back saying they had received my appeal letter but because of high volume of appeals they couldn't give me a date when it would seen to. I finally heard a few days ago my appeal was overturned , now I'm just waiting to hear from the DWP to accept it, fingers crossed. So don't give up trying things are changing in favour of the disabled

LDBWILLI

LDBWILLI

I would like to thank everyone who has helped me and all the great advice I was given that helped me so much. I finally received my letter from DWP saying my PIP was back dated......yeah. I'm so pleased I didn't give up or give in. I hope for everyone waiting that they get the right results of their appeals

don4u2001

Hi LDBWILLI.
SORRY for being a bit rude here but plz would you briefly tell me what to write she has a lot of illness

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DianaW

Thanks, Will. The fact that the tribunal produces this long document about its inability to enforce its own decision really made me wonder whether the DWP had been choosing not to obey inconvenient decisions - and I hadn't been able to find anything about enforcing a judgment that doesn't actually order payment to the successful claimant.

How does reinstatement of benefit pending an appeal play into this scenario? I now understand that I should have been entitled to have my ESA reinstated pending the first-tier tribunal hearing (although the DWP never notified me about that right at the time) but is one entitled to reinstatement pending an appeal by the DWP against a first-tier decision? Or can the DWP continue to avoid doing that because any appeal by them would be intended to prevent that benefit ever becoming payable?

I'd had a horrid feeling that completing the new ESA50 might be inescapable, unless the DWP implements the tribunal's decision very promptly, but hadn't quite understood why they could effectively avoid paying under the new claim yet. It's a deterioration case rather than a new condition, although one of my current physical problems had only just begun to show up before the last WCA and has since become much more incapacitating. Since the deterioration was fully detailed in the request for mandatory reconsideration, which the DWP acknowledged they'd got at the outset of the new claim, they do already have evidence of that - and the medical evidence produced to the tribunal provides much more detail on the psychological side, too.

Fingers crossed that they give in and pay up quickly!

BenefitsTrainingCo

Hello DianaW,

If you fail the work capability assessment (and therefore to qualify for ESA) and want to challenge this you have to ask the DWP to look at the decision again. This is called a mandatory reconsideration. Only when the DWP have completed the mandatory reconsideration can you then appeal to the First Tier Tribunal. The DWP will suspend ESA payments while the mandatory reconsideration takes place. To get some money, most people have to claim jobseeker's allowance during this period.

Once the appeal is received by the Tribunal Service, you can request the DWP reinstate ESA and they should pay this until the appeal is heard. You do not have to make a new claim but the DWP will check that the appeal has been received by the Tribunal Service before paying ESA.

I'm afraid the rules are different for appeals from the First Tier Tribunal to the Upper Tier Tribunal but these were covered by my colleagues Paul and Will in their earlier posts.

Regards,

Michael

LDBWILLI

hi don4u2001
I decided to have a paper hearing so my letter to them was basically to explain my disabilities also the lies told by the Capita representative when she came to my home exactly what she said I'd done but I hadn't done at all.I also said it was unfair how disabled ppl were treated especially when u see Life on Benefits plastered all over TV. I ended by thanking them for taking the time to deal with my appeal. if any of this is any good please go for it let me know how you get on

LDBWILLI

shazzirvine7180

Hi LDBWILLI
tha k you for your last post. We have just received my husbands decision from pip along with the report from the capita representative and like yourself her report is all lies and not at all what she asked my husband to do. I am in bits and so glad to hear it's not just my imagination. It happened to someone else. I think I really will ask my husbands claim to be looked at again
thank you

LDBWILLI

Hi shazzirvine7180
yes definitely appeal against your husbands decision , writing every little thing down in detail regarding the lies they tell, do not give up as that is what they want you to do. It's scandalous to think they are getting away with what they are doing, they took my mobility car away from me, but at least mobility do offer you£2000 to help to get another car but then if you get your appeal overturned like me you have to wait 6mths b4 you can re-apply for a mobility car. I hope all goes well for you , let me know and good luck

LDBWILLI

Kathleenac_16

I am receiving DLA long term and have not received a letter to claim PIPS I am 67 on my last birthday . I receive high rate mobility and low rate care but over the past few years my condition has deteriorated quite a lot and I need more help and I don't know what to do . I am afraid to ask for any more benefits in case they get me to transfer to PIPS . what can I do please ?