PIP, DLA and AA
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Providing case Law

ocdmanocdman Member Posts: 52 Listener
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

Replies

  • Pippa_AlumniPippa_Alumni Scope alumni Posts: 5,851 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?
  • CockneyRebelCockneyRebel Member Posts: 5,257 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
  • ocdmanocdman Member Posts: 52 Listener
    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, 
  • markyboymarkyboy Member Posts: 368 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 
  • ocdmanocdman Member Posts: 52 Listener
    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.
  • mikehughescqmikehughescq Member Posts: 5,987 Disability Gamechanger
    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. 
  • ocdmanocdman Member Posts: 52 Listener
    Thank you mike,  your advice is much appreciated. ill keep you all posted . thanks again.
  • HenryHenry Member Posts: 66 Courageous
    Excuse me  please.      What are the abb   mean...... again  please.
    Cheers.  Vet. 
  • CockneyRebelCockneyRebel Member Posts: 5,257 Disability Gamechanger
    FTT = First Tier Tribunal
    UT = Upper Tier Tribunal
    Be all you can be, make  every day count. Namaste
  • ocdmanocdman Member Posts: 52 Listener
    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.
  • YadnadYadnad Posts: 2,856 Member
    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. 
  • mikehughescqmikehughescq Member Posts: 5,987 Disability Gamechanger
    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.
  • ocdmanocdman Member Posts: 52 Listener
    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.
  • mikehughescqmikehughescq Member Posts: 5,987 Disability Gamechanger
    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.
  • ocdmanocdman Member Posts: 52 Listener
    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
  • mikehughescqmikehughescq Member Posts: 5,987 Disability Gamechanger
    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.
  • ocdmanocdman Member Posts: 52 Listener
    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 !!
  • mikehughescqmikehughescq Member Posts: 5,987 Disability Gamechanger
    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.
  • ocdmanocdman Member Posts: 52 Listener
    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. 
  • poppy123456poppy123456 Member Posts: 22,218 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.
    Community champion and proud winner of the 2019 empowering others award. This award was given for supporting disabled people and their families for the benefit advice i have given to members here on the community.
  • ocdmanocdman Member Posts: 52 Listener
    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.
  • mikehughescqmikehughescq Member Posts: 5,987 Disability Gamechanger
    Making a second claim to PIP means that your UT appeal is now about a closed period i.e. from the date of your 1st claim down to the day before the date of your 2nd claim. It complicates things but how so will vary. 

    So, if you lost at UT nothing is lost.

    If you win at UT; go back to a new FTT and win that then you only win to the day before your 2nd claim. If your 2nd claim is successful but ends up higher than any award on the 1st claim it’s unlikeky DWP would review the lower award. On the other hand if your 1st claim awards higher than your 2nd then most times they’ll supersede the 2nd age replace it with the same level as the 1st award. 

    Sorry, I know that’s a mouthful. it’s also rhe case that none of it is guaranteed, Really depends on the facts of your case. 
  • ocdmanocdman Member Posts: 52 Listener
    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.
  • YadnadYadnad Posts: 2,856 Member
    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. 
  • ocdmanocdman Member Posts: 52 Listener
    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 
  • ocdmanocdman Member Posts: 52 Listener
    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 ? 
  • YadnadYadnad Posts: 2,856 Member
    ocdman said:
    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 ? 
    Yep, my wife's Attendance Allowance claim in particular.

    Her first claim ended up at a Tribunal which threw it out.
    Within days of receiving that decision she made another claim for the same reasons and backed up with the same evidence. She was awarded the highest day and night award possible for an indefinite period.

    To me it seemed that it was the way the claim was worded and had nothing to do with the disability.
  • ocdmanocdman Member Posts: 52 Listener
    Thank you for that yadnad, a bit of hope rekindled. What a system - one where legal experts make the difference but being on benefits means access is not available. I was watching esther mcvey last night on news at 10 just denying what is happening. ever feel that the mad hatter is responsible for this system ? I do .

  • YadnadYadnad Posts: 2,856 Member
    ocdman said:
    Thank you for that yadnad, a bit of hope rekindled. What a system - one where legal experts make the difference but being on benefits means access is not available. I was watching esther mcvey last night on news at 10 just denying what is happening. ever feel that the mad hatter is responsible for this system ? I do .

    If you listen to any minister that has been involved with Works & Pensions you will get the same answer - there is nothing wrong with the systems that a couple of tweaks here and there won't solve. 
    Then you have Frank Field submitting the committee report and all of a sudden it goes quiet on the western front.
    Then come all the replies to the recommendations saying that the minister of the day agrees. Then nothing, it is all out for consultation - umm where have I heard that before - oh yes my own council who won't say no right out for obvious reasons it 'goes out for consultation' - and then the long grass grows all over it.
     
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