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Hi, my name is emkins40! Help with pips appeal?

emkins40

Hi,
I hope one of you may have some words of wisdom for me! My situation is that I have uncontrolled epilepsy with sometimes 3-4 seizures a day and back injury and bowel incontinence partly due to ibs but also the vast amount of medication and affects on my bowel. As I am limited in mobility I cannot reach the toilet quickly enough and due to back injury cannot bend properly etc. I am practically housebound. In the last six months I had both my ESA and pips assessment carried out at home due to my GP confirming uncontrollable seizures and incontinence. My ESA assessment immediately placed me into the support group with an award until 2032 on grounds of unable to mobilise more than 20 metres. The report was long and detailed explaining unconsciousness and incontinence etc. The pips assessment was vastly different, stating I could dress and undress unaided, walk 200 metres and could manage my incontinence using an aid or appliance ( difficult following a seizure when you are in another planet!) also failing to acknowledge back problems. Despite a 30 page specialist report clearly stating my back problem could not be fixed. So eventually after a mandatory reconsideration I received 9 points for daily living and 14 for mobility. However, I was advised to appeal. I wrote a very detailed statement pointing out all the errors and I explained that I could only go to a paper hearing due to the uncontrolled seizures and incontinence. As I had both assessments at home due to this thought it would go against me if I then went along to a tribunal, anyhow after receiving the acknowledgement back of papers I received a letter 3 days later saying my hearing had been heard. However it stated that they had decided to adjourn, reasons being that many inconsistencies had been noted. ( I myself pointed out many ) they also required an oral hearing but noted the difficulties I would have in attending but advised me that I should go if I possibly could. Then stated they wished a presenting officer to be present with full bundle of papers. Then they asked me to sign authority for specialist reports and Go reports to be given. Then at the bottom it says although my appeal is about daily living they reserve the right to look at my entire award. I have been googling etc and is this a warning? Is the insistence of a presenting officer to attend to get them to explain why they have made scores different from what the assessment recommended? Or is it that I am the one being in their eyes inconsistent? I am understandably nervous about losing my existing award. My GP clearly stated that I have uncontrollable epilepsy and incontinence. I pointed out that I could not understand why 2 different assessments each for DWP have given such differing views. So I'm not sure if that is why they are insisting upon a presenting officer to attend to explain. Has anyone else experienced this and in your opinion do I need to be worried? Should I just hold on tight to my current award until 2019? I am really anxious.

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Comments

Chris_Alumni

Hi @emkins40, I've moved your post to our benefits advisor section as they may be able to offer you some advice. Good luck with your appeal!

emkins40

I should point out that my appeal was that my award should have been ongoing to avoid further anxiety and stress of assessments etc and daily living on grounds of the incontinence. The health assessor wrote detailed information about how I'm bowel incontinent daily as a result of iBS and due to limited mobility cannot reach loo in time but the decision maker said I could manage if I had a raised toilet seat! I basically need the 3 additional points due to incintinence to qualify for enhanced daily meaning I can afford a carer for another 3 hours per week.

BenefitsTrainingCo

Hello emkins40

I can understand why you are so anxious.

When a person challenges a decision at Mandatory Reconsideration or at appeal, the whole of the award can be looked at again.

The tribunal have made you aware that they intend to review your existing award for both daily living and mobility. This does not mean that they will take away your current award, it means that they will look at all the evidence to make a decision on whether daily living and mobility should be awarded and at what rate.

It is not unusual when adjourning for more evidence, and in complex cases to ask a presenting officer to attend. It is very likely that a tribunal will ask the presenting officer to explain how their decision was reached but given the situation this is a typical question by a tribunal.

You mentioned that there were inconsistencies which you pointed out. Are these inconsistencies purely in regard to the 2 decisions made by the DWP?

You can also ask the tribunal to withdraw your appeal.

If you continue a tribunal will ultimately make a decision on the medical evidence and your oral evidence (if you can attend the hearing). So the strength of your case will depend on your evidence and the hospital reports.

Are you able to attend the tribunal? I ask as the chances of success are much higher when attending. It is advisable to attend.

A tribunal can also arrange a hearing at your home, but this can take along time, and can be difficult to arrange.

Please post again.

Regards

Maria

Jonno

I had similar inconsistencies in my ESA and PiP outcomes. . The first tier judge adjourned my hearing four times because I had said I could only appeal if it was donevas a paper hearing. The judge kept repeating himself, saying it was much better for natural justice if I were to attend. After the third adjournment I pointed out that by delaying my hearing I was being denied justice and that the courts refusal to acknowledge that I would need adjustments made in order to attend the court that may not be considered reasonable. I had given the court the option of contacting me by telephone or organiseIng a video link. I was totally ignored. I started the courts complaints procedure and again was ignored.
My tribunal was eventually held on paper after over a year if these delays . The result was my being rewarded 12 points for mobility. The judge commented. " you clearly have problems with your mobility and I have placed significant weight in the assesssors report in judjing your entitlement . I complained that I had sent evidence from my GP, my consultant and my advocate who had pointed out during the assessment that what was said or observed by her was not what she had typed. The judge ignored this and also ignored my request for his reasons for his decision in order that I can take this to the second pier tribunal on a point of law that he had been informed about but ignored. I have found that any complaint that may actually get somebody into trouble wil be ignored and this prevents the complaint being escalated as nobody higher will even glance at your letters until you have the final decision written in he correct way. So that is where I am now, stuck with £21 a week PIP and trying to get a second appeal but at this point all letters I write to the DWP or the court are simply ignored.

emkins40

That is terrible. I spoke to a solicitor at the benefits advice service who also told me I should attend. However one vital piece of evidence is my Gp report insisting that I must have a home visit for ESA and PIPS so I was told of I went that would disregard my GP evidence. My appeal notice of adjournment did clearly state they understood my difficulties with attending and accepted my HP report but if I could possibly go I should do so. I have requested to be involved via telephone. This has been done at Peterborough appeal tribunal. I also requested a statement of reasons as to any inconsistencies and was advised they had not heard the hearing with all the paperwork only the 4 page report from DWP accepting my mobility component but disputing the elements on daily living. As I understand it the DWP have not decided to oppose this. But I am never sure with these people. Can I ask without being rude what are your health problems only locally I have been helping quite a few people achieve a pips award. I am only appealing as I need that extra 3 hours help a week. Take care Emma xx

emkins40

Maria,
thanks for reply. The inconsistencies are the health care professionals awarding me more care and mobility needs and the decision maker at DWP ignoring them! It also appears that none of the specialist reports have made it to the DWP bundle of papers. My GP is doing a further report and attaching all reports and sending to the tribunal. But he still says I should not go as a statement which was included by him in an earlier report was that I could not attend either ES OR PIP assessment due to my health so if I go they could use that against me and the DWP are not disputing the high rate mobility and the one specialist report they have put in related to this. The main issue is I think that ESA gave me a life award and POP said I could get better but evidence is contrary to that. The PIP assessor has put on her report that it is a life condition and unlikely to improve. The DWP decision maker in his wisdom decided I would! So I'm a bit stuck!

emkins40

Just to confirm not POP the PIP decision maker said I would get better ignoring the Health care Professional report ! I thought decision makers were not doctors?

Jonno

My decision maker definitely thinks she is a doctor, i have severe permanent neuropathy, lipodystrophy and chronic fatigue from taking part in early HIV drug trials. There are very few doctors who will have any experience of patients with these problems as they will have retired . The decision maker Changed chronic fatigue to "tiredness" she said " I cannot see why you would have the symptoms you describe from the medications that you take. Also if you are as unwell as you claim to be, you shouldnt be driving. Your doctor said you cannot walk 50 metres without experiencing severe pain but I have decided that you can walk 200 metres and I am awarding you 0 points for care and mobility

emkins40

OMG

emkins40

@ jonno,
Sorrry for previous shock and disbelief! So basically because you admitted to driving this has been used against you. Something very similar happened to my friend. She followed up on appeal that she drives reluctantly as the medication side effects caused cognitive delay function. She also said she is scared when driving and would prefer not to do so but had no choice as she could not afford taxis! Also your doctor has said you can't walk that far so your appeal is right there. The evidence from your doctor is vital. Just that limitation in mobility should give you points in daily living categories such as bathing and safety/supervision. Reaching the loo in time. Help with engaging with other people, every single descriptor you need to fight for especially as you have the medical evidence to back you up.
I had to be incredibly blunt in my initial request for mandatory reconsideration. The HCP stated I could use an aid or appliance to manage my bowel incontinence, but then tripped herself up by acknowledging my difficulties reaching a toilet due to mobility. Then further went on to say the only way I could reach the toilet safely was by going up and down the stairs on my bottom. So I pointed out that even wearing a continence aid would not prevent leakage as the pad moves going up and down the stairs. Also on a grand mal seizure it moves about and it's the epilepsy medicine causing the lack of bowel control. But my decision maker said I can cope with a raised toilet seat! Just one of the inconsistencies! With my request for my hearing to be allowed by phone I have explained that the bowel incintinence and seizures can occur 3-4 times on average per day. I was quite blunt and said the poo leaks causes a horrible smell and I would have to have bathing facilities and that as my seizures can sometimes be so prolonged they would need to be prepared to see my bum while rectal diazepam was administered potentially. I said that it would cause them to feel uncomfortable and if I was able to take part via phone even if I had a seizure my carer in attendance could answer any questions. I don't think the decision makers always have any understanding at all and you have to explain things in most blunt terms even if embarassed and even then they don't always pay any attention to what you have said choosing to go against the HCP advice. I just hope common sense prevails and I did say thanks to the judge for considering my well being as it was acknowledged the difficulties I would have to attend an oral hearing in my adjournment.

Jonno

I have been blunt on my application but the assessor lied on every question and even with my doctors letter saying that I cannot walk 50 meters and struggle to keep my independence in day to day tasks and also have symptoms of dementia and high risk of a heart attack causing me to be very vulnerable. The DM ignored my doctor and went with the lies told by the manicurist or whatever the health care assessor was and so did the first tier tribunal judge. I've written to him twice to ask him to give his reasons for his decision so I can escalate my case to the Second tier but he has ignored me so I'm stuck because I can't ask the second tier judges directly to hear my case.

emkins40

But but this is madness as they legally have to provide reasons! You have the right to apply directly to the second tribunal requesting a different first tier tribunal rehears your appeal. There is a clear breach of the rules of natural justice. Also did you tell your MP? If you just email your MP they can intervene. Don't let them make you give up. Please don't give up. My uncle was fighting for his wife's pips for 18 months and on 3rd appeal he won but sadly she had died. He then got diagnosed with bowel cancer and has had to appeal twice himself. Copy your mp in on all correspondence let him or her help you. It is their job. If I was well enough I would represent you! This is totally unacceptable.
DONT GIVE UP
;-)

BenefitsTrainingCo

Hi emkins40

This is a lengthy thread and i am not sure whether you would like us to advise further. If so, please could you provide a summary of how you'd like us to help.

Thanks
David

emkins40

Any advice or guidance would be appreciated, I'm understandably anxious to reduce my award at risk of appeal !

BenefitsTrainingCo

Hi emkins40,

I don't think I can really add to the expert advice my colleague Maria has provided above. Whilst the tribunal can look at the whole of the award, that does not mean they will remove or reduce the component you are happy with. On the contrary, they should review the whole of the evidence and make a reasoned decision.

As regards attending the appeal, I disagree with your GP that this would necessarily undermine the evidence about you needing a home visit. Obviously if you do decide to attend you should explain how you made this possible - what support you needed, how you got there - and make it clear why you decided, because of the inconsistencies, that it was vital to attend despite the difficulties this poses to you. An alternative, which you already know about, is to attend by telephone as you did before.

One other point: unfortunately, insisting on getting an indefinite award of PIP may not be possible. Of course, ideally you would have something which was for life, but that is quite unusual for PIP and what we find is that people are often called for reassessments before the end of their award period anyway. However, I would of course point out the inconsistency and flag up the fact that the lifelong nature of your condition is reflected in your ESA award.

Will

Jonno

I'm sorry for taking up your time and you are missing the opportunity to get help with your case . I'll ask a benefits advisor to help me when I can break my case down as it is incredibly complicated and involves kilos of paperwork which INeeds to be organised

emkins40

I'm more than happy to help. Plus I have a reasonable award it sucks you are in this situation. I do think you can win and receive a higher award it just means fighting. Good luck

emkins40

Hi Will,
I have received a letter from the tribunal in Peterborough today and it has given me a time and date with the order that if I am able to attend I can but I will be included via telephone if unable to attend to ensure my judicial rights are included. It then goes on to explain the DWP have the right to reconsider my award prior to the appeal date, to prevent unnecessary delay do you think this means I could be on a winning streak? I do hope so!

emkins40

I helped my uncle and aunt and 2 friends win! I just wish you lived nearby I'm near peterborough!

BenefitsTrainingCo

Hi emkins40,

Well that is good news. You have a hearing date and time, and I'd consider carefully whether to attend or not - if you felt able to contribute last time, via telephone, then that is fine. The main thing is to make sure that you do have the opportunity to put your case across, and that if you do attend, you explain how you were able to do so.

Whilst it's true the DWP can reconsider their decision again before the tribunal, it's quite unusual to get a revision (a changed decision) at this stage. The DWP can look at the decision and revise it, and if they do that and the new decision is better for you, your appeal lapses (never goes ahead).

However, with PIP at least, I've yet to see this happen. You never know though, especially if you have already provided some good arguments and evidence. As you've already written a very detailed statement, then maybe...

Otherwise, the next step is to prepare for the appeal. Perhaps contact the benefits advice service you mention above, or a CAB, for help preparing a submission. But as I'm sure you know, the main argument is to point out what points you should have got in the relevant activities - I assume, given the above, that you should get at least 12 points for daily living too. It might be useful to know that once they reach the 12 points, the tribunal might stop there (case law has said they don't have to go through every activity once it's clear you get the enhanced rate...). Good luck!

Will