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Providing case Law

ocdman

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

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Comments

Pippa_Alumni

Hi @ocdman, thanks for sharing this with us and all the best for your upcoming tribunal. I wonder if @Username_removed can offer any thoughts here?

CockneyRebel

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

ocdman

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

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

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.

ocdman

Thank you mike, your advice is much appreciated. ill keep you all posted . thanks again.

Henry

Excuse me please. What are the abb mean...... again please.
Cheers. Vet.

CockneyRebel

FTT = First Tier Tribunal
UT = Upper Tier Tribunal

ocdman

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

CockneyRebel said:

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.

ocdman

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.

ocdman

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

ocdman

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 !!

ocdman

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

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.

ocdman

Thanks poppy I had heard that as well but I was advised to reapply. when I looked on the internet I found differing advice on different sites so in the end I went with the advice of my rep who knows the case but at the same time im still wondering etc . As it was a refusal on my first application when even on the points for adaptions I should have scored low rate mobility presenting it again correctly from the start I hope can only help im hoping. Then there is the point of ok just say its another refusal what have I lost ? I mean ive not been awarded anything the first time i applied and this was what I was wondering- if atos know my first application is at the UT stage does it put any pressure on them the 2nd time round knowing what are obvious points of law that have been overlooked and obvious medical things atos got wrong im my first application. I went from zero points on both sections to 6 points and 4 points at the first tribunal but as I say the legal side im pretty sure still leaves room for extra points and even on the medical side ive read of appeals that the UT judges have decided on things that would be applicable to me.

I know mike is v good and was just wondering what he thought.and If my thinking is wrong and its likely that this 2nd applicationt will hinder my 1st UT appeal I suppose I could always withdraw my application. Ive got three weeks to decide what to do so just getting as much information as I can.

ocdman

Thanks Mike thats what my rep said so you have really put my mind at rest and also made it up for me at the same time, im sure that continuing with the 2nd claim is the best thing to do.

A few of the case law points are the one about aids and adaptions as an aid to get of the toilet with me using the wall and my crutch to help me get up instead of a raised toilet seat and quoting the case where a radiator was classed as an aid. Another point is being in receipt of dla and mobility for 5 years and it being increased from the original claim over the 5 years but then on transfer to pip I get nothing and quoting the case law that says that amounts to being unlawful without adequate explanation and another one was engaging with people quoting the case law that went on to say buying an ice cream or a hamburger dosent mean you can engage socially with people etc. There are more that I cant remember at moment but ill keep you updated. my understanding is that even if there is only one case law pointthat the UT agrees with they look at the whole thing.

Thanks again mike.

Yadnad

ocdman said:

A few of the case law points are the one about aids and adaptions as an aid to get of the toilet with me using the wall and my crutch to help me get up instead of a raised toilet seat and quoting the case where a radiator was classed as an aid. Another point is being in receipt of dla and mobility for 5 years and it being increased from the original claim over the 5 years but then on transfer to pip I get nothing and quoting the case law that says that amounts to being unlawful without adequate explanation

I have such an aids to help me on and off the toilet - Social Services arranged a frame and higher seat for two toilets - one upstairs and one downstairs. The assessor and the DWP made reference to them as aids of choice and not of necessity as I managed to get up out of the chairs in reception and in the assessment room. I received no points for them. Likewise I have an electric bath riser, also via Social Services so as to get in and out of the bath. Once again that was said to be my choice and not a need as I managed to get out of the chairs at the assessment - no points for that either.

Again very similar. I had an indefinite DLA claim from 1995 for High rate Care & Mobility. Yet the PIP transfer assessment in 2013 gave me 0 points for mobility.
On the decision notice that was justified as I walked into the building, in and out of the assessment room and back out of the building without displaying any difficulties whatsoever. I was too frightened of arguing about that as if they did stick by their story it must have meant that the DLA mobility element had been claimed and paid illegally. Thankfully I had a report from the spinal unit at hospital that when tested on their walking machine in 2012 I fell off twice after 10/15 metres so that covered the DLA award (50 metres) and forced the DWP to give me enhanced mobility instead of the 0 points.

ocdman

Thanks yadnad,I hear what you say- even if I have all the aids it depends on what medical proof I have to back it up as a need not a choice and I have,. I think. Even the report from the first tribunal accepts a lot of the things but when it came to the points awarded a couple of mistakes made and tweaks need to be made, not applying the correct law etc This is what my rep is arguing and now we will see what the top judge thinks.By me going back again for another face to face with my rep with me this time from the start the joke that was the first face to face can be corrected. At the first face to face they asked me how many brain operations I had, I mean really ! ..... and the report says Road traffic accident aged 17 herneated discs have now turned into arthritis .........It says average build......im huge, it goes on and on with all sort of stupid things that make no sense. Ive got loads of all sorts of medical letters from MRI scans, spinal surgeons, GP electronic records going back to age 17 onwards and pryciatrists re my brain injury going back years so there is plenty for a UT judge to get his teeth into if he wants to. Im hopeful now after what mike said

ocdman

Hello again,

Well the latest is that my letter arrived from the UT tribunal today and it was permission refused to appeal. Im kind of dumped but also kind of hopeful that ive still got another new claim in the pipeline for which im hoping that having a rep with me from the start will make the difference.

The refusal quoted contradictions in the evidence which might have been from me or might have been from atos. My bundle is just to big and its to complicated for me to know and do the work to know and then come back in the time to pursue the only options left on it which are set aside or judicial review.

Now with only my new claim left as a viable option im wondering if given that my condition has stayed the same if anybody has heard of people failing when they have come as far as I have done but then on reaplying and doing things different from scratch meaning the form filling and rep from the start, it affects the outcome diferently ?