PIP, DLA and AA
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PIP

cecforde63cecforde63 Member Posts: 13 Listener
Hi I have been awarded PIP in Feb 2017 after a tribunal hearing. I have some problems with memory and I am on a waiting list to see a neurologist. The tribunal hearing was scary and the people that accompnied me where shocked at the way the barrister spoke to me.
After being evicted in September I looked at the award letter and realised that I have been given the basic rate for mobility. I didn't look at the award letter in Feb and I feel that as my mobility is my biggest issue, I want to challenge this decision.I have been advised to contact the DWP for advice and they said to contact the Lower Tribunal to obtain permission to appeal to the Upper Tribunal. Permission has been refused. My next step would be to start a new claim with the DWP which means my benefits will drop considerably. Any advice ?

Replies

  • CockneyRebelCockneyRebel Member Posts: 5,257 Disability Gamechanger
    Hi and welcome

    How long is your current award ?

    As you have an award in payment you can only apply for a change of circumstance if your condition has worstened or you have a new condition.that is likely to increase your award

    CR
    Be all you can be, make  every day count. Namaste
  • cecforde63cecforde63 Member Posts: 13 Listener
    Hi CR
    My award is 5 years from Feb 17. I am waiting to see a neurologist which may change my circs. I've got ME/CFS and Fibro and I am sometimes housbound for a couple of weeks at a time so I feel that getting low rate for mobility is unfair.
  • CockneyRebelCockneyRebel Member Posts: 5,257 Disability Gamechanger
    Having been to tribunal  and and refused permission to UTT ( which can usually only happen if an error in law is found ) the only options you have are  a change of circumstance or wait for your review

    Was your Tribunal in febuary ?
    Did you receive a new decision letter from DWP ?
    Sometimes tribunals suggest a review date but DWP are not bound by that so it is worth checking. Even if it is 5 years from 2017 you can expect a review a year early

    CR
    Be all you can be, make  every day count. Namaste
  • cecforde63cecforde63 Member Posts: 13 Listener
    I think that issue may be that the barrister wanted me to prove that I was unsble to get around 99% of the time. The first Q he asked was 'How far can u walk'. I replied 'Not more then 10 m' and he replied that he had 'observerd' me walking into the court room. In law I don't have to prove that I am ill. He had lots of documented evidence from docs including an ME specialist. At the face to face an 'ex-nurse' put in her report that I 'looked ok'.  I feel that this is something that I need to fight. 
  • CockneyRebelCockneyRebel Member Posts: 5,257 Disability Gamechanger
    These things are not errors of law, I know you feel you should have got the higher rate but I cannot see any way other than those I have already stated that you canachieve this.
    Have you checked your decision letter ?


    CR
    Be all you can be, make  every day count. Namaste
  • cecforde63cecforde63 Member Posts: 13 Listener
    What am I looking for on the discision letter?
  • CockneyRebelCockneyRebel Member Posts: 5,257 Disability Gamechanger
    Did you check when your review will be ?

    CR
    Be all you can be, make  every day count. Namaste
  • cecforde63cecforde63 Member Posts: 13 Listener
    I haven't yet. I'm chair bound now but I'l have a look later. R they likely to review only the year b4 my award ends?
  • CockneyRebelCockneyRebel Member Posts: 5,257 Disability Gamechanger
    Unless anything changes then the normal review is a year in advance of the end date. The review produces a new decision which supercedes your old award.
    It is important to find your review date especially if this was a tribunal recommendation as the DWP do have the right to review at any time, I have seen them change the tribunal review recommendation from 5 to three years.

    CR
    Be all you can be, make  every day count. Namaste
  • cecforde63cecforde63 Member Posts: 13 Listener
    That's good to know. Things may change when I see the neurologist in Feb but I will get advice b4 I challange the discision.
  • CockneyRebelCockneyRebel Member Posts: 5,257 Disability Gamechanger
    It is good to understand as much as you can about the current PIP benefit. There is lots of good info on here to read.
    A good place to start in understanding the points system the descriptors and the criteria for an award is the B&W self test

    http://www.mybenefitsandwork.co.uk/pip/indexxx.php

    We have many knowledgeable members and advisors so please do feel free to ask any questions

    CR


    Be all you can be, make  every day count. Namaste
  • BenefitsTrainingCoBenefitsTrainingCo Member Posts: 2,692 Pioneering
    cecforde63,

    Thanks for your query, and CR, thanks as ever for being around at the weekend.

    As CR has explained, you can only go to the upper tribunal on an error of law. If the first tier tribunal have refused permission, then you can apply directly to the upper tribunal - but, as CR says, you still have to show an error of law. The form if you want to do this is called UT1(social entitlement), and you can find it on here

    Errors of law can include things like the tribunal not making proper findings of fact, or not giving adequate reasons for its decision. So you could try saying that the observation of you walking, and the evidence from the assessor, should not have been weighed more highly than all your own medical evidence, and the evidence about how ME affects people. Did the tribunal give reasons for preferring the assessor's evidence/the evidence of their observation?

    When you say barrister, I'm not sure if you mean the judge, the medical member or the disability member of the tribunal? Or was there a presenting officer from the DWP? It would be very unusual if they actually had a barrister to represent them at a first tier tribunal, but if they did, it's possible the tribunal took more notice of the DWP evidence just because their rep was a barrister - something which would be an error of law.

    As CR mentions, otherwise, your options are to request a supersession (a change to your current award) because you've got worse/have a new condition. I've known people do this when in fact what they actually have is more/better evidence of their condition - which you do need to get the DWP to increase your award. It is risky though - you may well be called for another assessment, and then can end up losing more than you have already. 

    In a way, asking for permission to appeal from the upper tribunal itself is the least risky thing to do right now. But I can't guarantee that they will agree there has been an error of law. If you do this, you'll need a copy of the first tier tribunal decision, its statement of reasons, and the notice of its refusal of permission to appeal. One of the things I'm concerned about though is that you may have sought permission from the first tier tribunal too late. You're usually supposed to ask for permission within a month of the decision, or of getting the written statement of reasons (whichever is later).

    So it's possible the first tier tribunal simply decided to reject your request because it was outside the time limit, and they didn't extend the time limit. That means that if you apply directly to the upper tribunal (UT), you must give your reasons for lateness. The UT can only allow your application if it's in the interests of justice. I would explain why you didn't look at your award letter (stress of the tribunal, the relief of getting any PIP at all etc), and why you think the first tier tribunal process, reasoning and decision wasn't right.

    In any case, because it can take a long time to get a UT decision, I'd still consider asking for your PIP to be increased if you do get more evidence after seeing the neurologist. As CR says, try to apply that evidence to the descriptors to see if you should get 12 points for mobility.

    Hope this helps, and apologies for its length - like you, we want you to get the right decision!

    Will
    The Benefits Training Co:
    Paul Bradley
    Michael Chambers
    Will Hadwen
    Sarah Hayle
    Maria Solomon
    David Stickland
  • cecforde63cecforde63 Member Posts: 13 Listener
    Hi Will
    Thanks for taking the time to explain the issues involving my PIP award. I have quite severe probs with short term memory loss and taking in verbal information. I'm 99% sure that it was a barrister who heard my case. I was suprised that they sent him down to deal with the redecision. I feel that I made mistakes from the start in filling in my PIP form without help. When I filled the form in online that CR sent, I have got much higher score than the 8 that I scored at the hearing. I feel that I was judged unfairly by the 'ex nurse' that assessed me at home. She stated that I 'looked alright' which is a big prob for people with ME/CFS. I was very nervous at the 'trial' because the barristet 'barked'  questions at me and he seemed to want 'yes or no' answers. As u may know ME/CFS not only varies considerably from person to person but from day to day. When the rep from the CAB tried to point out that in law I don't have to prove that I am ill he talked over her. My sister and this CAB rep where shocked by the way the barrister spoke to me. All three of us expected the outcome to go against me and I was so relieved to get an award that I didn't look at the amount for mobility, which is in fact my biggest issue. CR has asked me to look at the award letter to c when it will b reveiwed. I feel that it is important to get this decisikn changed even though it has been left late. I looked at the award letter in May 17 as I was being evicted and I had to bring in docs to the council as we were going into temp accommodation and that is when I noticed theow award for mob. We were rehoused in October and thats when I contacted the DWP to c wbat I could change. I will look at tbe award tomorrow and write back if thats ok?
    Cecilia
  • MatildaMatilda Member Posts: 2,616 Disability Gamechanger
    The judge at my hearing described himself as a 'lawyer' and a lawyer is a barrister (rather than a solicitor) so it is quite likely that your judge was a barrister.
  • cecforde63cecforde63 Member Posts: 13 Listener
    Thanks Mathilda. I'm sure he was a barrister and I certainly felt on trail just for try to get what is mine by law.x
  • MatildaMatilda Member Posts: 2,616 Disability Gamechanger
    @cecforde63

    The role of a tribunal panel is to be inquisitorial to get to the facts and, of course, a judge might be particularly inquisitorial because of their training; it isn't personal.  My tribunal panel grilled me for half an hour.  Fortunately, they allowed my appeal.
  • cecforde63cecforde63 Member Posts: 13 Listener
    I think that people who have ME/CFS tend to be given a hard time and are mostly not believed about how ill they are. I don't believe that a barrister was an appropriate person to head the panel at these hearings. In my case it would have been fairer to have an ME specialist at this hearing to see how my illness affects me. The barrister was not medically trained in any capacity. I am akso Bi Polar but this wasn't mentioned as much as how far I could walk.
  • MatildaMatilda Member Posts: 2,616 Disability Gamechanger
    The judge has to be legally trained.  There is a doctor on the panel but they might not know much about the appellant's conditions.  The doctor ought to be someone who is familiar with the conditions of the appellant in front of them but this is not necessarily always the case.

    PIP is less about the conditions themselves but rather how they affect you on a day to day basis: a range of everyday activities, and mobility - walking and/or planning journeys.  Higher rate mobility for walking = 20m, or 30 seconds, before you have to stop and rest.

    If you start a new claim your current benefits will stay the same until you get your decision letter.  But there is always the possibility than an assessor and then the DWP will award you fewer points than you currently have.  But then you could go the MR and appeal route again.
  • cecforde63cecforde63 Member Posts: 13 Listener
  • MatildaMatilda Member Posts: 2,616 Disability Gamechanger
    Mandatory Reconsideration.
  • cecforde63cecforde63 Member Posts: 13 Listener
    Ok Am I past that process?
  • MatildaMatilda Member Posts: 2,616 Disability Gamechanger
    Yes, MR comes before tribunal appeal.
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