Appeal letter - what does it mean?

gildenel

I have appealed a decision not to award pip and received an appeal report from the dwp, with this is a letter saying that -

The tribunal should be aware the decision and mandatory consideration of the secretary of state didn't consider the decision of RJ, GMcL and CS v secretary of state. These decisions were decided by the upper tribunal on 09/03/17. Mrs ..... Has appealed a decision made after this date the tribunal is asked to take RJ into account. If RJ affects the outcome to apply it from 09/03/17 only.

Section 27, social security act 1998 I've considered all the available evidence and considered which descriptor's apply for each activity, taking into account ........ Functional ability. This includes the activities disputed and those not. I agree with all the descriptors selected.

I oppose this appeal and ask the tribunal to dismiss the appeal and confirm the secretary of states decision.

Can anyone tell me what this means? 

Matilda

@gildenel

I suggest that you re-post in Ask a benefits advisor category.

gildenel

OK thanks.

Sam_Alumni

I will move this over for you!

CockneyRebel

What was the date of your decision ?
There was a change in march due to a UTT decision and this may affect you, I will try and find the specifics
The rest is just standard reasons for thier decision and they always ask  for any appeal to be dismissed which doesn't happen

CR

CockneyRebel

First part about supervision

 Until now, the DWP have argued that a claimant can only score points for being unsafe if harm is likely to occur on more than 50% of the occasions on which they attempt an activity.   
So a claimant with epilepsy who has seizures twice a week would not get points for needing supervision when cooking.  This is because they could not show that it is ‘more likely than not’ that they will have a seizure on any given occasion when they prepare food.  
www.benefitsandwork.co.uk
17 
However, on 9th March 2017, in CPIP/1599/2016 a panel of Upper Tribunal judges held that the DWP were wrong. 
Instead, they said, the decision maker should look at whether there is a real possibility that harm might occur and also at how great the harm might be.  The greater the potential harm, the less likely it needs to be that it would happen on any specific occasion. 
So, if there is a real possibility that a claimant with epilepsy might have a seizure whilst cooking then then they reasonably require supervision for this activity, even though the chances of a seizure happening on any specific occasion may be quite small. 
  They should score points for needing supervision even if they don’t actually have anyone to provide it. 
In the same way, someone who is deaf may be unable to hear a smoke alarm if a fire starts when they are bathing and so may reasonably require supervision.   
But the Upper Tribunal went even further than this. 
They ruled that where a claimant is at risk all the time, then they may also be at risk when carrying out PIP activities that do not carry any additional likelihood of harm. 
So, a claimant may not be at any additional risk of harm if they have a seizure when using the toilet or taking medication, for example.  But, because they are at risk whatever they are doing, then we would argue that they still reasonably require supervision during these activities, because they cannot do them safely without supervision.

Second part refers to going out

Upper Tribunal ruling on ‘Going out’ An upper tribunal of three judges clarified the law relating to ‘Going out’ in a decision with the reference CPIP/1347/2015 early in 2017.  However, the government almost immediately changed the law in an attempt to reverse this decision.  They also stated that they were going to appeal against the decision. 
The change in the law consisted of adding the words ‘For reasons other than psychological distress,’ to descriptors c), d), f). 
The aim of the DWP is to ensure that claimants who have difficulties with following journeys because of psychological distress can only score either 4 points or, if they are unable ever to go out, 10 points. 

Referenced from B&W

CR

gildenel

Hi CR thanks for the info, the date of the decision was 27th august 2017

CockneyRebel

so all they have done is referenced it back to the UTT but if you win it will only back date to your decision date

CR

dottydotty

If the decision only applies  to 50% of the time  and  your conditition  fluctuates  how does  this affect the scoring ,  as you never know from one day to the next how your condition will affect you .also if  you need assistance in the bath hair wash etc  but only have your hair washed every 3-4 days  would this be discounted as not 50% of the time .

Matilda

It's how your conditions affect you at least 50% of the time, i.e. at least 4 days out of 7.  I.e. whether you meet the descriptors to get enough points on those 4 days - whether the points for all the activities you do on each of the 4 days add up to enough.  The total points might vary between the 4 days, but as long as the minimum number of points required is met on each of those days, then you qualify.  That is one reason why it is a good idea to submit a 7 day diary with your claim.

dottydotty

Thanks for that information  . I think that is where I may have lost points as my assessment was 29th December so my daily  routine had changed considerably over xmas.  . My assessement should have been 22nd dec but they changed it ,had it been on that day it would have contained a better reflection of my routine etc and also I would have had a comanion with me .home visit and I was alone . ,however the report is full off major discreapncies in my ability  Just the 50% worries me now .

dottydotty

7 day diary . good idea.. I wonder if I argue the fact that it was over xmas period  and a total change to my routine ?

Matilda

The 7 day diary can be for any fairly recent 7 days, say up to a few weeks before the date on your claim form.  Choose a typical 7 days.

Don't over-complicate the 50% rule.  My assessor wanted the 50% kept simple.  I started to explain that I had 5 bad days out of 7 on average, and her eyes began to glaze over.  So, I just said 5 days out of 7 and she was happy.  I got standard both elements

The Tribunal accepted the 5 days out of 7 and just questioned me about the bad days.  I got enhanced both elements.

Matilda

You can explain about the change of routine over Christmas if you have to ask for a Mandatory Reconsideration (MR).

dottydotty

my assessor never mentioned  the 5 day rule .  I didn't know about the 50% of the time  rule either.    Mine was a  reassessment as was already on PIP  so I had not filled a huge application  form in ,so I was aware of this ,My last assessment was in 2014 ,and descriptors have changed since then .  I am beginning  to think my Reconsideration will go too well .

dottydotty

I have requested a MR have sent lots if medical info that the assessor never even looked at . I was bed ridden for3 days   so could not do any of the activities .I had to phone my GP to ask for medication as couldn't get out of bed , my GP  knows of my condition so  and allowed my Son to collect the prscription without even seeing me. . will be seeing my CAB advisor tomorrow  hopefully he can draft a letter for me .

Matilda

There's no 5-day rule, only a 50% rule.  So the 50% rule in practice means at least 4 bad days out of 7 (some people have more than 4 bad days out of 7).

Hope the CAB can help.  They're usually very knowledgeable.

dottydotty

Matilda  yes  the CAB did the paperwork for my Mandatory reconsideration reguest he pointed out all the descriptors that were wrong ang gave reasons as th why they were wrong .I have also sent medical records as the records held on file were from 2014my last assessment.  . Assessor never asked me for any new eveidence although it was readily available.for him to see..so in effect the decision maker had nothing new to go regarding my numerous  conditions .

Matilda

@dottydotty

Has your MR been refused and you are now going to appeal to a Tribunal?

dottydotty

still awaiting a reply about MR  have no idea how long it takes

dottydotty

Matilda  thankyou for the reply ..So if you are having a bad day or lots of days and you cant do your tasks  you should score higher . In my case my bad days  have meant as i don't do them  i don't need help . That could explain my nil points for mobility as i hadn't been out in several days .  Assessor wrote  "walks to the shops  once a month with a friend " .