Providing case Law — Scope | Disability forum
Find out how to let us know if you're concerned about another member's safety.

Providing case Law

ocdman
ocdman Member Posts: 55 Connected
edited March 2018 in PIP, DLA, and AA
Hello again everybody.

Not posted here for a while. Anyway my PIP appeal is coming up very soon I think , I phoned the local Dial for information and they said the longest time they've heard of is roughly at the time mine is at now (7 months ) and im considering providing some upper tier tribunal case law that is relevant to me. at my first tier appeal  I had thought of paying for a welfare solicitor but previous advice here advised not to do that, but my disabilities are not obvious and the nearer my appeal is getting the more im fretting and even if it means paying for a welfare solicitor I think id rather do that than turn up alone. 

But ive still got a bit of time, other advice ive had is that if im confident ive supplied all the evidence and meet the descriptors then no point in paying for a solicitor but if I think I might need to rely on the extra text ( and im begining to think I will need to rely on the extra text and with also finding the upper tribunals desicions on pip ) its getting really worrying reaidng all these cases of errors of the first tier tribunals.

 So anyway where I am at now is thinking of supplying the first tier tribunal decisions by the upper tier tribunal that are relevant to my conditions but im unsure on how they might take that from a layperson ?  which is why im considering paying for a solicitor ( if you see what I mean )

Has anybody heard of someone doing this and how did the first tier tribunal take it ? 

Thanks in advance David
«1

Comments

  • Pippa_Alumni
    Pippa_Alumni Scope alumni Posts: 5,798 Disability Gamechanger
    Hi @ocdman, thanks for sharing this with us and all the best for your upcoming tribunal. I wonder if @mikehughescq can offer any thoughts here?
  • CockneyRebel
    CockneyRebel Member Posts: 5,216 Disability Gamechanger
    The only way to win an award is to show that you meet the criteria, how will providing case law help you to do this ?

    CR
    Be all you can be, make  every day count. Namaste
  • ocdman
    ocdman Member Posts: 55 Connected
    I dont know cockneyrebel im just panicing expecting the worse possibly over reacting. reading all the horror stories. I worry such a lot. its as if nothing else bad can happen. Ive been like that most of my life. I always expect the worse, but you are correct, 
  • markyboy
    markyboy Member Posts: 367 Pioneering
    In my experience quoting case laws to a judge is not a good idea do as CR advises and concentrate on how your disability affects your daily living that is the only way to get points 
  • ocdman
    ocdman Member Posts: 55 Connected
    Thank you markyboy, Its all these stories in the news and on facebook that sets me off worrying. im ok now. advice on here really helps settle my mind. Thanks again.
  • mikehughescq
    mikehughescq Posts: 8,847 Connected
    Well now... 

    @CockneyRebel caselaw from the UT provides the interpretations of words; phrases or sections to ensure correct interpretation of the law regardless of how DWP guidance suggests it ought to be interpreted. Where such things are in dispute it can be absolutely crucial. A UT of 3 judges is absolutely binding on a FTT. A UT of 1 judge is persuasive but not binding. 

    The recent change in the interpretation of “safety” for PIP came entirely from UT caselaw and a review of DLA caselaw. So, whole sets of points can be decided on interpretation of caselaw alone.

    @ocdman there’s no such thing as a welfare solicitor. Solicitors rarely have welfare benefits knowledge and you ordinarily should not have to pay for decent quality welfare rights advice. 

    There is nothing to stop you putting in UT decisions but you need to put the full decision in well in advance and then direct the FTT to the relevant part(s) or you won’t be popular. You also need to ensure that the decisions say what you think they say and that something actually hinges on their being included. So, for example, it’s a given that hand rails are an aid. You won’t score the points by putting in a UT decision saying that if the FTT would be familiar with the idea that rails are an aid. You score the points through showing what happens if you don’t have rails. 

    To reverse that, if you could score points except for the fact that most decision makers don’t accept that x is an aid then a UT decision which doesn’t decide the issue but accepts it as a possibility, is definitely useful.

    Now, go get yourself a competent, free representative. 
  • ocdman
    ocdman Member Posts: 55 Connected
    Thank you mike,  your advice is much appreciated. ill keep you all posted . thanks again.
  • Henry
    Henry Member Posts: 66 Courageous
    Excuse me  please.      What are the abb   mean...... again  please.
    Cheers.  Vet. 
  • CockneyRebel
    CockneyRebel Member Posts: 5,216 Disability Gamechanger
    FTT = First Tier Tribunal
    UT = Upper Tier Tribunal
    Be all you can be, make  every day count. Namaste
  • ocdman
    ocdman Member Posts: 55 Connected
    Well Ive had my appeal, 2 hrs I was in the tribunal, I had managed to find a welfare benefits solicitor who was fantastic. She argued points of law with the Judge stating case law etc. The panel were sympathetic stating ive got multiple disabilities , but I got 2 points short of daily living and 4 points short of mobility standard rates. I know for a fact that there is case law relevent to the two points I needed for daily living and as my solicitor made the panel aware of this case law but the Judge didn't apply it and im wondering what possible reasons the Judge could have for ignoring this ? My solicitor has written for the Judges reasons to see if there is a point of law ( which we strongly suspect there will be ) but in the meantime just for my own information I was wondering etc , I mean its not as if the panel were not made aware of this case law-they just disregarded it.

    The mobility is a bit more complicated it involves walking through pain and I realise thats a bit more involved but for now im just concentrating on the missing daily living points.
  • Yadnad
    Yadnad Posts: 2,856 Connected
    The only way to win an award is to show that you meet the criteria, how will providing case law help you to do this ?

    CR
    Winning at a tribunal is not just about showing that you meet the criteria. it's about proving that what aids you use are actually needed and not just a choice and how the ads help. It's about proving that you need and not just would like, supervision or assistance. 
  • mikehughescq
    mikehughescq Posts: 8,847 Connected
    Sounds to me like you and your rep are doing fine. Bear in mind that only one person on the panel will have knowledge of case law and even if they agree with your rep they could be outvoted by the other two.
  • ocdman
    ocdman Member Posts: 55 Connected
    Mikehughescq , That explains it I think, The judge was very thorough grilled me every which way but sympathetic with it. The other two panel members I could see didn't like it when my solicitor came back after they had asked me questions to trip me up and asked me to expand more fully, the doctor especially couldn't hide his feelings towards my rep. I didn't know that- that the judge could be outvoted.

    Yadnad, I went through things with my rep and we were both happy that need was established on the aids from what I said and evidence provided to panel. It was using other aids and things in place of a specific aid that I was not given points on. My rep pointed out 2nd tier case law to the panel on this but this was not given.
  • mikehughescq
    mikehughescq Posts: 8,847 Connected
    I actually wouldn’t read it that way at all. Experience has taught me that you can read next to nothing from the demeanour of tribunal members. In the North West for example papers are going out so late to members that they often aren’t getting them until the day of the hearing and so may never get to grips with key points no matter how clearly made. Bottom line is that you have a rep and now pursue the matter to the next stage.
  • ocdman
    ocdman Member Posts: 55 Connected
    Thank you Mike well im at the stage of should I apply to the upper tier tribunal or not. I got the statement of reasons from the first tier tribunal and the decision was unanimous so then we sent in an application for permission to appeal to the upper tier tribunal and there was a few errors of law that my rep pointed out along with a couple of other things that the tribunal should have done but didn't , but the letter came back yesterday "permission refused " but the letter says I can ask the upper tier tribunal directly for permission. My rep cant assist with upper tier representation only what she has done up to this point so im on my own now . Reading through other posts on here it says getting permission to appeal to the UT from the 1st tier is not usually given ( as its their decision in the first place ) So as im acting on my own now am I correct in thinking legal aid would only be given for appeals to the UT if I had been given permission to appeal from the 1st tier ?  If I have to do it myself is there any advice on what to say to the UT on the error of law as the 1st tier are saying that they believe no error of law is there but me and my rep are sure there is but apart from saying I just disagree with the refusal of permission, im a bit unsure what to say so any advice would be appreciated Lastly on what to send to the UT if I do ask for permission-- Im aware that I need to send The decision notice from the 1st tier tribunal along with their statement of reasons and lastly the "permission refused notice " but do I need to ask for and send the actual reasons that permission was refused also?

    Thanks for any advice in advance

    David
  • mikehughescq
    mikehughescq Posts: 8,847 Connected
    You get 2 bites of the cherry at UT. 1 to your local HMCTS. That is not to a tribunal. They’re usually looked at by a salaried judge. If that fails, and it sounds like it has, then you can apply directly to London, depending on where you live. No reason why you can’t just use the same text. No legal aid needed. No need either to ask why there was a refusal on 1st application. Just concentrate on the errors of law your rep identified. And yes, you do need to send the refusal in.

    If your rep can’t continue there’s no reason you can’t have all the paperwork thus far. Everything you need to do next is detailed in there.
  • ocdman
    ocdman Member Posts: 55 Connected
    Thank you mike. So ill put in this appeal to the UT , your information has confirmed what I was thinking was the case. According to the UT1 form I can ask for a paper hearing and it says that that is the norm, so obviously  no need for legal representation so nothing to lose methinks. - fill the form in along with the things it asks for then wait..... for about a year......making it two years without the benefit I was on prior to all this changeover to pip starting up. 

    What a system !!
  • mikehughescq
    mikehughescq Posts: 8,847 Connected
    Yes at UT paper hearing is the norm as only points of law are at issue so there’s no need to hear evidence from the claimant or DWP as that was already done at FTT. Unlike FTT where opting for a paper hearing massively reduces your chances it makes no difference at UT. Occasionally though a UT judge may decide an oral hearing is needed if the points of law are better argued out in person. These are usually held in London but can be held local to you. A rep can do a UT oral hearing and I would recommend that. You could if course also request an oral hearing yourself but few people do.
  • ocdman
    ocdman Member Posts: 55 Connected
    Thanks Mike , the UT has accepted my request for a paper hearing so now I must wait and see what happens there.

    I re applied for the same benefit pip again and nothing has changed with my conditions, but this time from the outset I have taken advice on the filling in of the form its professionally done with the benefit of an adviser from the start, so where as my rep came in on the first claim from the first tribunal onwards to where it is now ( the UT ) this claim is done as correctly as it can be done from the start and im being called in for another face to face by atos. What im wondering is -  will atos know that ive an appeal at the UT stage on my previous claim and  is it a good thing or bad thing as far as the 2nd face to face goes if they do know ? By that i mean im pretty sure I meet the descriptors for pip and my rep is sure ive a good case and its provable but my mind works overtime as to what pitfalls this 2nd face to face could have in store for me and its affect on my first UT appeal.

    Thank you in advance for any thoughts you have on this Mike. 
  • poppy123456
    poppy123456 Member Posts: 28,461 Disability Gamechanger
    I'm not sure re-applying at this stage was the best idea. Any decision from this will overrule a decision made on your other claim.

Brightness

Complete our feedback form and tell us how we can make the community better.

Do you need advice on your energy costs?


Scope’s Disability Energy Support service is open to any disabled household in England or Wales in which one or more disabled people live. You can get free advice from an expert adviser on managing energy debt, switching tariffs, contacting your supplier and more. Find out more information by visiting our
Disability Energy Support webpage.