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Request for telephone hearing

JonnoJonno Member Posts: 14 Connected
edited November 2017 in PIP, DLA and AA
when my appeal was accepted I asked twice if I could have been involved by telephone because I was aware it put me at a disadvantage but I don't have the energy to get  there and concentrate on what is being said since my motability car was taken.  I could have a nap in the car before the hearing if I had still had ir..amd had done this for a previous tribunal which I had  won.  It was adjourned 3 times because the judge was insisting I attend despite my clearly stated why it was impossible. He clearly had no idea what disability was. "It's a short 10 minute walk from the station"  I had two letters from doctors staring that I cannot walk  50 yards without intense pain but the DWP decided I can walk 200 yards. My requess for a telephone hearing was ignored and a paper hearing took place with greatest weight given to the ATOS assessment which wAs a farce. 
Should I complain about being denied the chance to use the telephone to put my point across?

Replies

  • Ajk110Ajk110 Member Posts: 47 Community champion

    Hi @Jonno I think it’s always a good idea, if you are able to do so, to highlight difficulties that make any process less accessible. It is usual practice that a person would attend in person and would be expected to do so, difficult though it may be. I’m afraid this may be a case of leaving plenty of time so you aren’t rushed and can take as long as you need to get there. I’d also ask about the extent of reasonable travel cost reimbursements: a taxi to take you this relatively short distance from the station would probably not be unduly expensive if it would actually enable you to turn up. So yes, make your points but be prepared to suggest ways you could be supported to attend in person as in reality this is what would be expected unless circumstances were deemed exceptional. I hope that helps.





  • BenefitsTrainingCoBenefitsTrainingCo Member Posts: 2,692 Pioneering
    Hi Jonno

    Sorry to hear about what happened. I am assuming that your appeal was heard in your absence despite you requesting an oral hearing, if I've got that wrong then please say.

    If my assumption is correct then yes you could apply in writing for the tribunal's decision to be set aside on the grounds that a party to proceedings (you) wasn't present at the hearing. A tribunal judge will then decide if it is in the interests of justice to do so. You should do this within one month of the date of the tribunal's decision and if it is refused you could then consider appealing to the Upper Tribunal. If that happens then I suggest posting back on here and we will advise you further.

    If the decision is set aside then there will be a new hearing before a different panel and you will be given opportunity to attend.

    I hope that helps.

    Best wishes

    Paul

    The Benefits Training Co:
    Paul Bradley
    Michael Chambers
    Will Hadwen
    Sarah Hayle
    Maria Solomon
    David Stickland
  • JonnoJonno Member Posts: 14 Connected
    Hi
    Thank you for all your advice. Just to clarify this I had Informed the tribunal that I could not  attend  because  I canot  walk more  than a few steps unaided  despite the lies that were told by the assessor. If not lies she must have mixed my assessment up with somebody else's  . I also suffer from severe chronic fatigue  and only get around 4 hours per day  of activities  and not all in one go. I have not been out of my house for more than 2 hours  for years. and because I can predict when the shutters will come down it would be almost certain that I would not be able to concentrate.understand or remember what was said. This happened at a previous tribunal when I had my motability car and was able to make the journey in 20 minutes.  The judge asked for evidence and I could not find it in my folder. Luckily the evidence was not relevant but the DWP ignored his ruling anyway.
    I have my list of reasons for the ftt ruling and it appears that he ignored my doctors letters that state of cannot walk 20 meters and used the false evidence of the assessment to decide my outcome. He also says that there is no evidence of cognitive impairment but it is clearly stated on my doctors letter. Another statement says that he cannot see how I can drive a car if I have cognitive impairment driving it uses adifferent set of skills to remembering a route. It demonstrates that he doesn't understand neurological function. He also do
    Says that he consulted his medical expert on the effects of my condition.  There are no doctors with experience of the effects of 80's  Hiv drug trials. They have all retired. His expertise was clearly based on modern treatment 
  • BenefitsTrainingCoBenefitsTrainingCo Member Posts: 2,692 Pioneering
    Hi Jonno,

    I agree with my colleague Paul's advice on asking for a set aside because you were not present, despite your requests to be involved by telephone. Another option (or a possible course of action if you don't get the set aside) is that you request permission to appeal to the Upper Tribunal. You've got your statement of reasons so that is a possible next step, or you could ask for the set aside and see what happens (as Paul advises, you need to do this within one month of the decision notice being given or sent to you).

    Permission to appeal to the Upper Tribunal can be sought within one month of getting the written reasons OR within one month of a decision refusing your application for a set aside.

    The reason why you might consider either of these next is that I think, leaving aside the procedural issue of your not being there when you had requested to be present on the telephone, it sounds as if other errors of law were made - evidence which should have been taken into account was ignored, and evidence which arguably shouldn't have been taken into account (because it plainly contradicted your doctor's evidence) was taken into account, perhaps without adequate reasoning.

    Finally not having your request to be present by telephone considered looks to me to be a potential breach of the Equality Act. The tribunal system was not made accessible to you and instead went ahead without giving you the opportunity to make representations other than those submitted on paper. You could mention this in your set aside request if you go for that.

    Will 
    The Benefits Training Co:
    Paul Bradley
    Michael Chambers
    Will Hadwen
    Sarah Hayle
    Maria Solomon
    David Stickland
  • ShouldbetoesupShouldbetoesup Member Posts: 6 Listener
    Hi sorry I didn't get back to you, I have been in hospital with new conditions that have made me bedridden .  I Informed the DWP and was ignored so I threatened them with a county court hearing for not replying to any of my email since I was accused of fraud and asked for a thorough investigation to take place and uncover the many fraudulent acts committed against me. This was also ignored and so I made a complaint to the ----/////
    i received 3 letters on the same day,
    one from theDWP stating that they had received no correspondence from me even though I had proof that my emails had been delivered.  
    Another from the DWP informing me that I would be reassessed for PIP at home due to the changes in circumstances that I had informed them about by email. 
    Also a 419 page bundle from the upper tribunal allowing me to apply for a hearing providing I have a good reason. I will be using the advice you gave as my reason..

    i had the reassessment at home by a DWP advisor rather than an ATOS liar.  He made all the right noises saying it was obvious that I was struggling and needed help. After he left i realised he had dumped my evidence on the sofa. And the copy of the form he had filled out did say that the conditions that were already known to them had got worse but had not mentioned the new ones. I'm waiting for a decision and if I do not get a PIP award I will then submit a complaint including letters from 3 consultants verifying that I now have liver failure, a duodenal ulcer and a sodium deficiency that causes confusion. The liver failure could be due to cancer but the consultant needs more time and tests carried out first. I'm completely overwhelmed by the pile of papers I have to work through. Meanwhile my GP tried to arrange some home help. I was assessed over the phone and told that there were no staff available and given a few phone numbers to call which I had tried years ago. I think I have to accept that I am in a survival situation and sell my house so I can be properly looked after in the short term and hope that things have changed before the money runs out,
  • Pippa_AlumniPippa_Alumni Scope alumni Posts: 5,851 Disability Gamechanger
    I'm so sorry to hear about your situation @Shouldbetoesup, it sounds like you've been really let down. It's good to hear that you're prepared to appeal: do keep us updated with your application, and let us know if we can be of any assistance. 
  • ShouldbetoesupShouldbetoesup Member Posts: 6 Listener
    Thank you,
    i now have 2 more questions, should I wait for the outcome of this recent visit and assessment before I reply to the tribunal? If it possible that my PIP assessment gives me 0 points and stops again even though the first tier tribunal awarded me basic mobility?
    Or if I receive full mobility and med rate care which is what I believe I am entitled to would I be better off to accept that and not risk the second tier judge reducing it? 
    Just to clarify the situation, I would be asking the second tier to decide on the results on the initial ATOS assessment carried out in 2015 until now. Initially I scored 0 points, the first tier tribunal awarded points that gave me £22pw .

    also my ESA(support group) stopped my severe disability component when my Pip was stopped, should I now be getting a disability addition as I am receiving PIP again ?  What qualifies disability addition and severe disability addition ? When I was on income support and incapacity benefit I was getting the severe disability add on.

    thank you for your help so far. This is all so complicated that it seems designed to be impossible to understand without training.
  • BenefitsTrainingCoBenefitsTrainingCo Member Posts: 2,692 Pioneering

    Hi @shouldbetoesup

    Regarding the PIP - It seems to me you have two distinct claims here - the one with the potential appeal to the Upper attached, and the new one, relating to a deterioration in your conditions plus new conditions.

    The thing to remember about appeals is, that no matter how long the appeal drags on, the Tribunal can only look at how your conditions affected you at the time the decision under appeal was made - given that your post was in Feb 2017 and by that time the appeal had been decided, I'm guessing that the refusal was around a year ago - you state that your condition has deteriorated since then, therefore this needs dealing with separately to the new claim.

    As regards the appeal itself - yes, the procedural errors and failure to account for the Equalities Act (reasonable adjustments) would be the reasons for appeal. If the Upper Tribunal allow your appeal however, they are very unlikely make an award of benefit, but instead will probably refer the matter for a new hearing in the first-tier (at which the Tribunal will presumably have more regard for your requests for a telephone hearing - or even a domiciliary hearing).

    As regards the new claim - I think it would be very difficult for the DWP to justify reducing the award the Tribunal made, given that your condition has deteriorated since then. I can't say they won't do it, but if they do it would be a fairly straightforward appeal I think.

    As regards the ESA - the SDP that was attached to the middle and higher rates of the care component of DLA, is only attached to the Daily Living component of PIP. Therefore your mobility award will not suffice. If the Tribunal award Daily Living however and backdate it, you will be entitled to backpay of the SDP as well.

    Hope this helps.

    Kind regards,

    Mary

    The Benefits Training Co:
    Paul Bradley
    Michael Chambers
    Will Hadwen
    Sarah Hayle
    Maria Solomon
    David Stickland
  • ShouldbetoesupShouldbetoesup Member Posts: 6 Listener
    I had a home assessment by a DWP claims advisor on Friday. He made the right noises as he filled out the form and said it was clear that my condition had got worse. I originally had  3 conditions. Now I have 9 and they are more serious and life threatening. I provided evidence of this with letters of diagnosis. He left in a hurry and when he had gone I realised he had dumped my papers in the sofa as he left. 
    It took some time for me to read my copy of the form. He had said that I was bedridden and could not access my bathroom or safely cook but he had not mentioned my new conditions.
    do you think that he had given enough info to get the higher rate of both components of PIP and Therefore has no need provide this extra info or was he trying to sabotage my claim? Should I wait for the decision or send in my evidence with a complaint in case I need a mandatory reconsideration?

  • BenefitsTrainingCoBenefitsTrainingCo Member Posts: 2,692 Pioneering
    Hi Shouldbetoesup,

    From what you have said it sounds as though he has understood your limitations but it's impossible for us to say whether he has had enough information to give you the enhanced rates.
    You have nothing to lose by sending this evidence to PIP for the decision maker to consider and I can't see that he was trying to sabotage your claim. All the best and I hope you get the outcome you want.

    Lee
    The Benefits Training Co:
    Paul Bradley
    Michael Chambers
    Will Hadwen
    Sarah Hayle
    Maria Solomon
    David Stickland
  • nicola8803nicola8803 Member Posts: 6 Listener
    Know exactly what your going through my daughter who i care for has 3 different types of epilepsy they gave her 0 points and said the opposite to what she is able to do she said she can bath on her own cook even though she stuck to the cooker rings so not safe for her to be in the kitchen she has jerky so unable to use knives ect carnt carry anything as scolded herself while jerking has to be supervised eating ect through seizures and jerky and they say she can do everything herself they even wrote down that her epilepsy was under control with medication which is a lie and her consultant states in the letter that he doesnt know were they got that information from as he has tried to get them under control for years and unable to she even compared my daughters epilepsys to her brother having one seizure and not ever having another one she obviously has no idea what epileptics go through and she had no right to compare my daughter to her brother it states in the statements that they took her on face value cause she was clean and tidy it is all getting brought up on her appeal in 3 weeks its so annoying how they get away with lying about people and they seem to give it to people who dont need it as there is alot i know who get full were they are lying about ailments it makes me so mad cause they ruin it for the genuine people
    Keep fighting for what you rightfully deserve they are told not to give people it and lie about them hoping they dont appeal good luck 
  • ShouldbetoesupShouldbetoesup Member Posts: 6 Listener
    I was just about to apply for a high court hearing and had sent the DWP a copy of the arguments that a lawyer was going to be making on my behalf.  Within days I received a call from DWP to inform me that they had reassessed my claim and were awarding me high rate mobility and standard rate care backdated to 2016 because my conditions had got worse. Although I am happy about this it still suggests that the nerves in my legs grew back for a while in 2013 and then disappeared again in 2016. When I pointed out the error of logic I was told that the original assessment (every statement was a lie) was still accepted so pip was only backdated to when I got worse.  I said that I got worse a week after my car was taken and had no way to buy food and went into a depression but we eventually settled on. October 2016 when I was hospitalised with ulcerated legs from being forced to ignore GP advice to remain in bed with legs raised and had fallen down stairs breaking my ankle then getting MRSA from hospital.  

    when I checked my bank account I had been paid £1500. I received a letter of entitlement saying my PIP award was backdated to October 2017.
    no explanation for the £1500 but that has not covered depts I have just from food and taxi fares to medical appointments. I keep trying to call them but never get through just put on hold for an hour or so then cut off. 

    Should I expect that information given should be accurate and that after agreeing on backdate to 2016 they should not then change this to 2017? 

    Is it worth asking for a reconsideration for full care as I am now bedridden so cannot cook , clean or do laundry so how can I cook a simple meal unaided or get dressed or communicate with others when I sleep for 20 hours per day and rely on friends and neighbours to do chores.  

    They want me to send coppies of letters for. Housing costs and other things. But how can I go and get photocopies and then post them from my bed? If I stand or even sit up my legs swell and go black within minutes and I will lose them if I do not manage this so I'm not sacrificing them just to send a document to the DWP but they ignore email. What can I do about this? 



    i am also in the ESA support group and on that letter of entitlement it says I am receiving work based. And contribution based payments. When I stopped receiving any benefit at all in 2013 which I received 9 different and illogical explanations for I was forced to cash in my pension or starve. Because I was ill the pension company allowed me to retire early and gave me an enhanced annuity and pay me £22pw . I notified the DWP that I could return the lump sum paid and cancel the pension payments within 5 weeks so the pension could mature. That gave them 5 weeks to reinstate my income support and incapacity benefit. After 7 weeks they said they had no idea why my benefits had been cancelled and were paid to me again,  but with £22pw deducted because of my pension payments.  I argued that it was their fault I had missed the opportunity to cancel the pension and that up to £85pw pension was to be disregarded if I was in the work related (I think) group. They replied it was my choice to take the pension.  
    Is it legal to have me in both groups? If so They can cherry pick the rule that suits them at the time , I feel my pension has been stolen from me so could you clarify the rules on which group I should be in ? I have a full NI contribution record going back to starting work at 16yo.  Have not been able to work since 1987 but contributions were paid by income support.

    I used to have a carer who was an unpaid volunteer but he died a year ago and since then my situation has got worse as problems build up and my house gets dirtier, now I don't even have covers on my duvet or pillows and my dog just uses the doormat as a toilet so the place stinks, what would have been unacceptable to me a few years ago is now just normal.
  • CockneyRebelCockneyRebel Member Posts: 5,257 Disability Gamechanger
    Hi Should be toesup

    so sorry that you are going through all of this

    Please can you clarify
    There are two elements to ESA, Contribution based and Income related.
    From  your post it sounds as though you are receiving CB withe an IR top up

    ESA CB does have an £85 pw disregard
    ESA IR has no disregard for income and does deduct £ for £ any income.
    Having an IR element can passport you to other benefits likr HB and CTR.
    Do you receive SDP ?

    Do you have a friend who would be able to get and send the photocopies they have asked for ?

    CR

    Be all you can be, make  every day count. Namaste
  • ShouldbetoesupShouldbetoesup Member Posts: 6 Listener
    hi cockneyrebel,
    thank you for taking time to reply to me,
    I do not receive SDP (I assume you mean serious disability payment) but I intend to notify ESA of my PIP award once I have sorted out the conflicting backdate decisions.

    I rely on friends too much and I can understand why they are getting fed up with helping me as they expected me to be able to employ a carer 3 years ago. They have problems of their own so to expect them to go to the nearest post office which would take an hour by bus is a lot to ask.  If the DWP accepted email as a fair adjustment my communication with them would be simple but as it is theyhave accused me of failure to notify them when my DLA was cancelled which is stupid as it was their department That cancelled it
  • CockneyRebelCockneyRebel Member Posts: 5,257 Disability Gamechanger
    Yes SDP  is severe disability premium
    As you do need a certain amount of care, is their anyone who could provide this in return for claiming carers allowance for you ?

    Have you look at nhs home care ?

    https://www.nhs.uk/conditions/social-care-and-support/home-care/

    I know that resources are stretched but it is worth trying

    CR

    Be all you can be, make  every day count. Namaste
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