PIP APPEAL

Amarsingh

Hi,
I have submit a pip appeal today,  has anyone recently attended one.  Will appreciate advice

Amarsingh

Citizen advice help me submit but felt was not very strong

poppy123456

Do you mean mandatory reconsideration or Tribunal? Did you send evidence to support your claim?

Amarsingh

poppy123456 said:

Do you mean mandatory reconsideration or Tribunal? Did you send evidence to support your claim?

It was for tribunal. I sent medical evidence old and new.. Citizen advice did not look at it and just enclosed in envolope...  he did write good points but left could me better

markyboy

You can wait up to a year for a tribunal the DWP will send you a large bundle of paperwork which will outline their case read it all and submit your argument to the courts all this will be kept on file until you get a hearing

Amarsingh

So anything they miss i can mention on trinbunal....  my first appeal for DLA only lasted less than 5 minutes, they made a decision before meeting me and was awarded high rate for mobility, lets hope it happen again.  They didn't even ask a single question

mikehughescq

If CA will not represent get yourself an organisation that will.

eeyore19

I ha e been told by the tribunal court that dwp have one calendar month to reply to appeal and then a week for handling and postage...... My reply was they have gone over that, and have been left not knowing what happens now...Do the dwp get an time extension ? Any ideas please ? 

poppy123456

DWP have 28 days to request the statement of reasons, they don't have 28 days to decide if they're going to appeal. If you've recently won a Tribunal then it can take 6 weeks or more to receive backdated payments.

eeyore19

Thanks for your response Poppy... Haven't had the appeal yet They still haven't replied to the original appeal paperwork and this seems to be holding up me getting a date for appeal

debbiedo49

Do do you mean appeal or tribunal? I got welfare rights from council to help me through whole process. Get f2f advice please

eeyore19

Hi debbiedo49

Thanks for your reply.... It's tribunal and will defiantly take your advice with f2f

mikehughescq

Whoever told you they have one month clearly has no idea. If you have appealed then what happens next is that you’re waiting for the appeal papers. This is your moment for being ciear what your case is and reconsidering all your evidence. The longer they take until you get the bundle the better to some extent.

eeyore19

Thank you mikehughescq for your comment.... I guess it is a matter if of waiting for paperwork and getting face to face advise.
This has been hanging over me since December 2017.... If it has taught me anything, it has taught me I have patience that i never knew I had

ChrisG

When you get your bundle check every word that the decision maker (DM) has written in their response for contradictions.  The response might also contain any arguments that they will use to counter what you said in your grounds for appeal. It will give you an indication of what they intend to argue. There may even be references to upper tribunal cases that reinforce their argument. You should read the full decision and if your case is different to that one you need to point out why.


In my partners case the DM says - “she has slightly reduced power in both legs (page 60)” - on three occasions regarding the daily living activities and then contradicts himself by saying “she has significantly reduced power in both legs (page 60)” regarding the mobility descriptors.  If you look at page 60 in her bundle it clearly states that she had significantly reduced power in both legs.  

I’m not sure if he is breaking the law, but he also goes onto say that the HP based her advice on how my partner was on the majority of days and not on an exacerbation of her condition. This is clearly something that he realised after the fact as he includes her ESA assessment report where her mobility was a lot better on that day. To say that the CM and he believes it was an exacerbation is one thing but to say that the HP based her advice on it being an exacerbation is quite another. The HP report does not mention that she thought it was an exacerbation and there was no mention of variability etc in the report. It is clear that she believed that it was how my partner was all the time as she states that it is consistent with her condition.  It was an exacerbation, however, the HP clearly did not believe it was an exacerbation and therefore could not have based her advice on it being an exacerbation. 

He also says that he agrees with the HP on all descriptor choices but then contradicts himself again and argues for different descriptors. 

Pointing out these types of mistakes and contradictions will will help.

sks59

I took my sons case to Tribunal and we won, they back dated his money and increased his rates to the high amount.

mikehughescq

ChrisG said:

When you get your bundle check every word that the decision maker (DM) has written in their response for contradictions.  The response might also contain any arguments that they will use to counter what you said in your grounds for appeal. It will give you an indication of what they intend to argue. There may even be references to upper tribunal cases that reinforce their argument. You should read the full decision and if your case is different to that one you need to point out why.


In my partners case the DM says - “she has slightly reduced power in both legs (page 60)” - on three occasions regarding the daily living activities and then contradicts himself by saying “she has significantly reduced power in both legs (page 60)” regarding the mobility descriptors.  If you look at page 60 in her bundle it clearly states that she had significantly reduced power in both legs.  

I’m not sure if he is breaking the law, but he also goes onto say that the HP based her advice on how my partner was on the majority of days and not on an exacerbation of her condition. This is clearly something that he realised after the fact as he includes her ESA assessment report where her mobility was a lot better on that day. To say that the CM and he believes it was an exacerbation is one thing but to say that the HP based her advice on it being an exacerbation is quite another. The HP report does not mention that she thought it was an exacerbation and there was no mention of variability etc in the report. It is clear that she believed that it was how my partner was all the time as she states that it is consistent with her condition.  It was an exacerbation, however, the HP clearly did not believe it was an exacerbation and therefore could not have based her advice on it being an exacerbation. 

He also says that he agrees with the HP on all descriptor choices but then contradicts himself again and argues for different descriptors. 

Pointing out these types of mistakes and contradictions will will help.

It’s a dangerous game to obsess too much on a submission from a decision maker. It’s computer generated with input from a DM where they select from a number of multiple choice paragraphs. Ditto the caselaw. It also means you’re walking into a tribunal assuming they are stupid and don’t know this. That never plays well. I’ve never read a DWP sub which wasn’t riddled with contradictions but highlighting that is just the same as picking apart a HCP report. It gives less weight to that evidence but it doesn’t mean you will win the appeal as that will depend on the strength of your own evidence. 

eeyore19

I suppose every case is different.... My main thing that angered me was.... The assessor said I could walk to the local shop... That in it's self is beyond laughable as I live in a small village that doesn't have a shop. 

mikehughescq

That’s fine but proving a HCP wrong will not get you PIP. You need to focus on the strength of your own evidence.

eeyore19

That's what I'm doing.... Like I said every case is different I'm focused

ChrisG

ChrisG said:

When you get your bundle check every word that the decision maker (DM) has written in their response for contradictions.  The response might also contain any arguments that they will use to counter what you said in your grounds for appeal. It will give you an indication of what they intend to argue. There may even be references to upper tribunal cases that reinforce their argument. You should read the full decision and if your case is different to that one you need to point out why.


In my partners case the DM says - “she has slightly reduced power in both legs (page 60)” - on three occasions regarding the daily living activities and then contradicts himself by saying “she has significantly reduced power in both legs (page 60)” regarding the mobility descriptors.  If you look at page 60 in her bundle it clearly states that she had significantly reduced power in both legs.  

I’m not sure if he is breaking the law, but he also goes onto say that the HP based her advice on how my partner was on the majority of days and not on an exacerbation of her condition. This is clearly something that he realised after the fact as he includes her ESA assessment report where her mobility was a lot better on that day. To say that the CM and he believes it was an exacerbation is one thing but to say that the HP based her advice on it being an exacerbation is quite another. The HP report does not mention that she thought it was an exacerbation and there was no mention of variability etc in the report. It is clear that she believed that it was how my partner was all the time as she states that it is consistent with her condition.  It was an exacerbation, however, the HP clearly did not believe it was an exacerbation and therefore could not have based her advice on it being an exacerbation. 

He also says that he agrees with the HP on all descriptor choices but then contradicts himself again and argues for different descriptors. 

Pointing out these types of mistakes and contradictions will will help.

It’s a dangerous game to obsess too much on a submission from a decision maker. It’s computer generated with input from a DM where they select from a number of multiple choice paragraphs. Ditto the caselaw. It also means you’re walking into a tribunal assuming they are stupid and don’t know this. That never plays well. I’ve never read a DWP sub which wasn’t riddled with contradictions but highlighting that is just the same as picking apart a HCP report. It gives less weight to that evidence but it doesn’t mean you will win the appeal as that will depend on the strength of your own evidence. 

It is important to make sure that you are prepared to put your evidence forward. It is even more dangerous to assume that the tribunal will pick up on everything that you know is wrong.  They may even take the view that if you do not dispute it then it must be true. You need to be prepared to point out anything that they may have overlooked. They are human and do make mistakes too.  I am not assuming they are stupid at all.  If they pick up on it great, but if they don’t then I’m going to be able to put my points across. 

The whole point of what I was saying was that it will give less weight to their evidence which is only going to help you win your case. 

mikehughescq

Nope. The point has been made repeatedly that giving less weight to their evidence does just that. It doesn’t help your case at all. That’s not where your focus should be. Not least because you’re kicking at an open door with most tribunals who already know how poor HCPs reports are. Attacking the HCP report also risks alienating the medical professional on the panel. 

To put it in numbers if you have 5 bits of evidence that total 5 in weight and DWP have 3 that total 9 then bringing them down to 6 doesn’t help at all. 

ChrisG

But if the DWP have 6 and I have 5 and I could take them down to 3 then it helps a lot.  

mikehughescq

Yes, but that isn’t going to happen. In a tribunal they will either accept there are flaws in the HCP report or they won’t. The nuances of that largely don’t interest them. There’s not enough hours in the day to pick apart the issues with HCP reports. They will concentrate on the claim pack; your medical and anecdotal evidence and your verbal evidence on the day. The combination of those will either give your evidence weight or not. If they think you’re inconsistent or have little to back up your assertions then the little weight they give to a HCPs report will matter not. The weight of your own evidence will fall short. 

ChrisG

The weight of your own evidence is obviously the most important, you seem to have come to a conclusion that I think all you have to do is show that the HP report is wrong and you will win the appeal.  That is not what I think or what I said.  When the whole decision is based on the informal observations of the HP it is hard to see how you can argue that the decision is wrong without pointing out that the report is wrong and why.  

mikehughescq

Good luck with that.

ChrisG

mikehughescq said:

Yes, but that isn’t going to happen. In a tribunal they will either accept there are flaws in the HCP report or they won’t. The nuances of that largely don’t interest them. There’s not enough hours in the day to pick apart the issues with HCP reports. They will concentrate on the claim pack; your medical and anecdotal evidence and your verbal evidence on the day. The combination of those will either give your evidence weight or not. If they think you’re inconsistent or have little to back up your assertions then the little weight they give to a HCPs report will matter not. The weight of your own evidence will fall short. 

They don’t have time to pick apart the report, this is why it is important to do it yourself while you are waiting. You can then quickly show where and why the HCP is wrong.  They are then more likely to put less weight on the fake report and more weight on your factual evidence.  The SSWP always argues that more weight should be put on the most recent evidence gathered at the PIP assessment. Doing this will destroy that argument straight away and then you can focus on putting forward your own evidence 

Picking apart the HCP report allowed me to understand the thought processes that went into making the false report, the importance of each of the lies she told and how they were used to justify advising the descriptors she did.  I have also been able to figure out the parts of the legislation each of the lies is associated with and the case law that they will rely on at the tribunal. 

Because I did this before submitting the grounds for appeal I was able to point out the errors in the grounds for appeal.  This meant that the DM had deal with some of the issues I brought up and revealed the position that they are going take at tribunal.

My partner feels more confident now of winning because I have been able to pick apart the report. She is less anxious and stressed now and that alone is a good enough reason to do it.  

mikehughescq

ChrisG said:

mikehughescq said:

Yes, but that isn’t going to happen. In a tribunal they will either accept there are flaws in the HCP report or they won’t. The nuances of that largely don’t interest them. There’s not enough hours in the day to pick apart the issues with HCP reports. They will concentrate on the claim pack; your medical and anecdotal evidence and your verbal evidence on the day. The combination of those will either give your evidence weight or not. If they think you’re inconsistent or have little to back up your assertions then the little weight they give to a HCPs report will matter not. The weight of your own evidence will fall short. 

They don’t have time to pick apart the report, this is why it is important to do it yourself while you are waiting. You can then quickly show where and why the HCP is wrong.  They are then more likely to put less weight on the fake report and more weight on your factual evidence.  

Again, wrong on both counts. The tribunal, bar the odd hiccough, will receive the papers in advance and will have plenty of time to preview and pick apart the HCP report. That’s why they’re not interested in doing so on the day where the priority has to be the verbal evidence of the appellant. Thus my previous comment about kicking at an open door. You are absolutely begging for the standard lecture from a judge which pulls you for trying to pick apart the report page by page and assuming the tribunal are so thick they couldn’t possibly form a sentient view in advance. Once you’ve had that you’re not going to be given the time of day on other points.

The belief that if they put less weight on a HCP report they will put more weight on your evidence suggests you’ve not understood my earlier point that less weight on the HCP evidence is just that. Less weight. It will not be wholly disregarded and nor will discrediting it automatically give your evidence more weight. Poor evidence doesn’t become less poor because a HCP report loses credibility and good evidence doesn’t become very good. That is a fundamental misunderstanding of how evidence and tribunals work.

ChrisG

Your whole point seems to be that you know for a fact that a tribunal will assume that I think they are stupid just because I decided to pick apart the report.   Then they will get annoyed and have a tantrum like a five year old because I insulted them and not consider any thing else I have to say whether it is relevant or not.  

What a load of rubbish.  

mikehughescq

ChrisG said:

Your whole point seems to be that you know for a fact that a tribunal will assume that I think they are stupid just because I decided to pick apart the report.   Then they will get annoyed and have a tantrum like a five year old because I insulted them and not consider any thing else I have to say whether it is relevant or not.  

What a load of rubbish.  

Been doing this for 32 years. Repped thousands of appeals across the North West, North Wales and the South East. Feel free to wholly ignore me. 

ChrisG

Unlike the judges, I’ll take on board anything you say that makes sense, and not just disregard everything you say because I disagree with this point. 

mikehughescq

You’ve already decided what makes sense to do is what you’re already doing so nothing I or anyone else says to you is going to make any difference. 

You may or may not win. If you do it will no doubt be down to your brilliance rather than the focus, knowledge and ability of the panel to get past the obstacles you put in their way. If you lose you’ll doubtless be on here complaining how rude and dismissive the panel were so I can’t win either way but you will at least be able to look back on this thread and reflect on the accuracy of my posts. 

You have made numerous inaccurate assumptions on here. I’ve done my best to disabuse you of those notions but you know better and I’m guessing you’re planning on representing your partner. I would urge you to get face to gave advice as the basis on which you’re proceeding has numerous precedents for not ending well. Perhaps leave this thread and look at the many other threads on here where people have repeated and reinforced the very things I’m saying on here. Your whole focus is on picking apart a DWP submission which a tribunal will barely consider and a HCP report which will also not be their focus on the day. It is NOT the way to win an appeal. You may yet do so but it will be despite your approach rather than because of it.

ChrisG

What assumptions have I made?  My focus is not on picking apart the HCP report, I just said it’s important to do so. Not just for using at the appeal.  You don’t have a clue about my approach as I have not mentioned it. Your the one making all the assumptions not me, including that my focus is on the HCP report and my approach is simply based only on picking apart the report.  Maybe it won’t necessary but I’d rather be prepared if it is and not just assume that it won’t be.  

eeyore19

Gentleman please..... Leave it there... We are all on here for our own reasons... And EVERY case it different Good luck on your tribunal ChrisG

mikehughescq

I’ve highlighted every assumption and explained why it’s wrong in subsequent posts. I don’t propose to repeat myself. 

ChrisG

mikehughescq said:

That’s fine but proving a HCP wrong will not get you PIP. You need to focus on the strength of your own evidence.

This is the problem. I don’t think anyone has said that proving the HCP wrong will get you PIP. That is just your erroneous assumption that that is what people think.   
Picking apart the report is just one part, not the only part.  

ChrisG said:

But if the DWP have 6 and I have 5 and I could take them down to 3 then it helps a lot.  mikehughescq said:

Yes, but that isn’t going to happen. In a tribunal they will either accept there are flaws in the HCP report or they won’t. The nuances of that largely don’t interest them. There’s not enough hours in the day to pick apart the issues with HCP reports. They will concentrate on the claim pack; your medical and anecdotal evidence and your verbal evidence on the day. The combination of those will either give your evidence weight or not. If they think you’re inconsistent or have little to back up your assertions then the little weight they give to a HCPs report will matter not. The weight of your own evidence will fall short. 

You said   -“Yes” - agreeing with me that in certain cases it would help a lot.
Then you say - “but that is not going to happen” - an assumption by you not me. 

I agree that they will concentrate on the claim pack, medical evidence, and the verbal evidence on the day.   I never said I thought they wouldn’t.  

However, to agree that it can help a lot in certain cases and then advise people not to do it is not the advice I’d expect from someone with your experience.  That is why it does not make sense to me.  If there is any chance at all that it will help it is worth doing. 

ChrisG

mikehughescq said:

I’ve highlighted every assumption and explained why it’s wrong in subsequent posts. I don’t propose to repeat myself. 

What you have highlighted is your own assumptions about what you think I said.  

mikehughescq said:

It’s a dangerous game to obsess too much on a submission from a decision maker. It’s computer generated with input from a DM where they select from a number of multiple choice paragraphs. Ditto the caselaw. It also means you’re walking into a tribunal assuming they are stupid and don’t know this. That never plays well. I’ve never read a DWP sub which wasn’t riddled with contradictions but highlighting that is just the same as picking apart a HCP report. It gives less weight to that evidence but it doesn’t mean you will win the appeal as that will depend on the strength of your own evidence.

Picking apart the report is not obsessing. It is just being prepared.  I’m guessing that you obsessed too much on doing this in your job and had a few dressing downs by judges for it.  

Picking the report apart and being prepared to refute it does not mean I am assuming that the tribunal is stupid.  I’m guessing that this was what you did and are now projecting your mistakes on here.  There are many things in the report that are accurate.  I don’t want the tribunal to dismiss every part of the report.  Just the bits that are not true.  They were not in the room and will not be able to instantly know what is a lie and what is not.  
You say “but it does not mean you will win the appeal” 
I never said picking apart the report will win an appeal. But for some reason you go on as if I did.  You need to stop creating straw man arguments and misrepresenting me to try to avoid admitting that you were wrong. As I pointed out earlier you agree that that it can help a lot in certain cases.  You just can’t seem to admit that your original advice wrong.  

mikehughescq

Oh dear. Your entire approach to this thread suggests you’re going to have an issue with a tribunal. They won’t tolerate repeated unevidenced challenges on a settled point.

I have not offered advice.That would be individualised. I offered information in general terms. You are entirely free to disregard that information and this thread will stand as testimony to the outcome. You’ve already made it clear that you’ll be right no matter what the outcome.

It has been a long time since I was giving any kind of dressing down by a judge. The last one who did was absolutely battered at UT and the subject of a successful formal complaint. Now who’s making assumptions. 

What you actually did say word for word was “The whole point of what I was saying was that it will give less weight to their evidence which is only going to help you win your case. ”. I challenged that and stand by that for all the reasons I’ve already posted. You have literally no evidence that what you say is true as you’ve clearly not done this before and clearly haven’t read the many other threads suggesting that such an approach is not helpful at all. Many others have contributed exactly the same perspective from personal and professional experience. Still, you know best eh.

Let’s say it again for absolute clarity. Most tribunals will have picked apart the HCP report before you’ve entered the room. It’s easy pickings and won’t need you there to do it. Continuing down that line is of no benefit to a case and is potentially detrimental especially if it ostracises the medical professional on the panel. 

At this point it is obvious that you should report my posts for inaccuracy. Feel free.

ChrisG

There you go again. 
Most tibunals.   What about the ones who don’t?  
Why would you need to win at UT if the tribunals are able to figure everything out themselves beforehand?  

Its like saying most burgers won’t target your home so you don’t need to bother locking your doors.  
Or. Most journeys I don’t get a flat tyre so I won’t bother having a spare in the boot.  

If they do then fine,  you don’t need to use it.  But being prepared for that time that you might is better than leaving it to chance, in my opinion, you obviously disagree.  

Is that UT decision online to view? I’d like to see how you battered him because if your right I might end up needing to go to the UT myself.  

mikehughescq

All UT decisions are online. That one was a Commissioners decision and was approx. 13 years ago so I’m afraid I can’t remember the reference but it was an IB case where the 

I’ll be as polite as I can here but if this is your approach to experienced reps you are going to struggle in a tribunal regardless of preparation. They will not tolerate the attitude or the approach. In your head you are well prepared but not even reps can cover all the bases in a tribunal and essentially you’re prepared for the wrong thing. Fortunately you don’t seem to have the first clue about representation and the tribunal will bypass you and address most questions to your wife. You have the chance to make sure you’re doing the right thing and your approach is to publicly tell an experienced rep that they’re just wrong rather than to listen and learn. 

My reference to “most tribunals” was not intended to suggest that some won’t pick apart a HCP report. All of them do it all the time. At most you’ll need to make one obvious point about the HCP report and they’ll stop you there. The some that don’t do not because there’s little to pick apart. Whilst 71% win with a rep it’s important to remember that 29% do not and there is nothing especially to complain about. 

Your point about UT and HCP reports is utterly confused. You assumed I’ve had a few dressing downs and they were related to PIP when in fact over 32 years I’ve had a grand total of 2 and they long pre-dated PIP as it didn’t exist then. I also didn’t say tribunals are able to “figure everything out”. I said explicitly that they would have “... picked apart the HCP report before you’ve entered the room”. No more. No less. 

I presume you have stated to HMCTS that you will be the formal representative rather than a mere attendee who will be treated as a witness or observer rather than a representative? I assume you know the difference?

I’ll also assume, being as fully prepared as you are, you’ve prepared for the judge to tell you that you can’t be the representative and give evidence and know what to do about that? 

I strongly recommend you let your partner read this thread and see if they feel confident about you representing them.

ChrisG

I won’t need to do much at all.  I’m getting prepared for any questions that they might ask. The HCP report has a lot of the evidence that will go in her favour. That is why I’m picking it apart and not just saying the whole thing is a pack of lies.  

You seem to think I’m going to storm into the room tell the panel to shut up and just listen, tell them that I have picked the HCP report apart because I think they are too thick and stupid to do it thenselves because they can’t form a sentient view in advance. Appeal won no need for the stupid medical professional to ask any questions iv already gone through it all and she qualifies for the enhanced rate of both.  

You keep saying my whole approach is based on picking the report apart. It’s not.  My approach is for me to actually to do very little.  When they speak to her they will get all the answers they need.  The evidence speaks for itself.  

I put most of the issues into the grounds for appeal so the tribunal will already have it in their bundle.  

The DWP had to respond to the grounds and had to deal with the issues raised.  

I don’t think I know it all and take on board any advice given, as long as it makes sense. 

So to bring this to an end in an amicable way and show that I’m willing to take advice I will ask for your advice regarding a specific aspect of her case.  That is if your willing of course.

mikehughescq

Fire away.

ChrisG

Regarding activity 3.   She has Cerebral Palsy with spastic diplegia. 

The HCP says in her report 

“she undertakes exercises reccommended by a physiotherapist at home” ( 5 times in total )

However under managing medication and therapy she advised descriptor 3(b) 

The time the exercises took was not recorded neither was the fact that she needed assistance to do them. There was no justification as to why the exercises were considered to amount to therapy. 

I pointed this out in the grounds for appeal.  

The HCP failed to record in the report the duration of the exercises and the manner in which they need to be carried out.  The total time the exercises take amount to 4 hours 20 minutes a week.  The exercises require me to hold her legs and are carried out as the physiotherapist recommended.  Therefore she believes she is entitled to 4 points under descriptor 3(d) for undertaking therapy at home that takes more than 3.5 hours but no more than 7 hours a week. 

The DWP response was

“The decision maker considers that xxx—xxxx has to complete physiotherapy exercises on a daily basis. It would be considered that physiotherapy exercises would be provided to an individual to complete independently without help from another person. If xxxx—xxxx needed help to hold her feet then it might be considered that a suitable aid or furniture for example could be used to hold her feet in place to allow her to complete her exercises unaided. “


Obviously he meant to say unassisted because if she used an aid as he suggests it would not be unaided.  

The HCP did not consider it, the decision maker did.  The decision maker is not, as far as I can tell, medically trained and therefore is not in a position to suggest potentially dangerous alternative methods for carrying out the exercises. 

It is not the role of the tribunal to do this either.  

There is a similar situation in PM v SSWP (PIP) [2017] UKUT 0154 (AAC) ( paragraph 7-8 ) where the judge explains that it is not the role of a tribunal to go behind the back of those treating the appellant.   


As there is no dispute regarding the fact that the exercises are done, there is no dispute that they count as therapy for the purposes of PIP the DWP’s only objection is that she does not require assistance.  

They do not mention supervision or prompting however she would definitely need prompting and supervision if she tried attempting them unassisted using furniture as they suggest as an alternative.  

The 3 extra point would mean she was entitled to the enhanced rate of PIP


What would your advice be on how to approach this?  

Debbie2000

debbiedo49 said:

Do do you mean appeal or tribunal? I got welfare rights from council to help me through whole process. Get f2f advice please

Can I ask what f2f is please ? 

debbiedo49

Face to Face

mikehughescq

Bear with me Chris. Full answer for you later but bit of a hectic day first. 

Pippa_Alumni

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mikehughescq

@ChrisG essentially I think you’re on the right lines with a couple of caveats.

1) Whilst I see your point re: the HCP not recording but the DM making a decision based on an assumption it’s likely the DM went on what you put in the claim pack and MR and it is open to a DM to form a view on other evidence such as that. That said, the recent 2 decisions on 3b (pre and post law change) mean DWP default to 3b rather than anything else without much thought. The furniture nonsense is just standard stuff they throw out there but.. the key question is whether you have anything which explicitly suppprts your assertion that you need to do the holding and that suppprt from furniture would not be appropriate or dangerous. Written evidence from the Physio would be the obvious one. Without that it’s just an assertion from the two of you and you’ll have difficulty making it stick. 

The key thing here is not to focus on what night appear to you to be oddities or omissions in the process but just on why your partner qualifies. 

2) You need to be very clear how long the therapy takes and how long you assist for. It is only the time you assist for which is being measured. So, if they do 50 minutes Physio but you hold for 20 of that 50 then it’s only the 20 which counts. 

ChrisG

Thank you for taking the time to reply.   

I think both caveats will be covered by the evidence of the physiotherapist.  However, even if they took the view that assistance was not required for the whole duration. She still should qualify for needing supervision. 

She previously had a DLA award of HRMC and MRCC ( for needing constant supervision throughout the day to remain safe)  If I read YM v SSWP (PIP) [2018] UKUT 16 (AAC) correctly, the tribunal must explain why they believe the task can now be completed ‘safely’ without supervision. 

As the only evidence regarding duration and type of exercises comes from her, the only way I can see the tribunal doing this is by saying that they believe she is lying about the type and duration of the exercises she does, and could instead do them in a particular way that would, in their opinion, require no supervision. Which is not their role as the judge in PM v SSWP explains.

If supervision is needed for the entire task then she will qualify for 3(d).  

Can you see any reason why 3(c) would not be satisfied?

If I’m arguing for 2 extra points in activity 1 but that will only get her to 11, and activity 3 on its own could be enough for enhanced rate to be awarded, would they start with activity 3 or go through them in order? 

mikehughescq

On what you’re saying then no but your Physio evidence is going to have to be crystal clear that assistance will always needed and why as it’s very unusual. Clearly prompting is not needed and it would be unusual for Physio to be prescribed which was not self-guided and unsupervised so that only leaves you with assistance and so the evidence really will need to be unequivocal on the point. 

Bear in mind that it’s by no means automatic that what is described is accepted as what is needed and nor is it automatic that disagreeing with the claimant is an automatic error of law. Far from it. Your interpretation of the case law doesn’t obviously square with the text of YM, which is mostly about conversion cases; reasonable explanations and specific activities. Is there a specific paragraph you could highlight for me? 

ChrisG

The end of paragraph 20 of YM. ( My underline and bold )

“In PIP, daily living activities 1 (preparing food), 2 (taking nutrition), 3 (managing therapy or monitoring a health condition), 4 (washing and bathing), and 5 (toilet needs) all contain descriptors where points are scored if supervision is needed to accomplish them. “Supervision” is a defined term: it means “the continuous presence of another person for the purpose of ensuring C’s safety.” Daily living activities 1 to 5 are everyday activities: a claimant is likely to have been engaged in most if not all when awarded the MRCC. If she needed “continual supervision throughout the day ... in order to avoid substantial danger to herself or others” the question is posed, on what basis is it thought that she can accomplish daily living activities 1 to 5 “safely” without supervision. There may be answers; but the question is posed and answers need to be given in accordance with R(M)1/96.”

mikehughescq

Ah. R(M)1/96 is one of the standard “explain yourself” texts. It doesn’t help you if you’ve not got the evidence in the 1st place. I’m not saying you’ve not. I’m just saying that it only comes into play if there’s something to explain.

So, you can assert she needs assistance but it’s open to the tribunal to disagree with the most basic/minimal of explanations. If on the other hand you have what looks like clear cut evidence to justify assistance and they disagree then their explanation must go deeper. That’s all that’s really being said there. 

ChrisG

Hi Mike.  Finally got a decision from the tribunal and would like some advice on how to proceed.  

The first hearing was scheduled for 2pm.  On the morning of the appeal at about 10am I received a phone call with an offer of the enhanced rate of the daily living component and the standard rate of the mobility component. She was originally awarded just the standard rate of daily living and no mobility. 

My partner had already informed them that she would not be attending because there was no one else to accompany us and it was likely that she would need to leave the hearing early because of her medical conditions and instead wanted me to go and put her case to the tribunal to avoid any possibility of delay because it would have meant that the hearing would have to be adjourned because I would need to leave as well.  No objection was raised to me attending alone at that point. 

Because there was no explanation of what descriptors were chosen or why and there was a lot of evidence, in my opinion, that she should be awarded the enhanced rate of mobility I said that I would still attend the hearing and put the case to them. Again no objection was raised but  I was told that if she didn’t attend the judge might not hear the appeal and adjourn. 

At about 11:20 am I received a call telling me not go to the hearing because it had been adjourned.  

I received a letter from the tribunal a few days which said that the appeal was heard and then adjourned because “she clearly needed to attend an oral hearing”.

I was sent a reply to a complaint I made that contained only the record of proceedings. The record of proceedings states that the DWP representative was present at the hearing and handed 1 new document to the tribunal.  

My understanding is that the DWP representative is not allowed to be in a room alone with the tribunal prior to the hearing which was scheduled at 2pm.  The adjournment happened at 11:40 am, over 2 hours before the scheduled hearing time.  

Rule 29 states that they need to give 14 days notice of any changes to the date and time of a hearing, including adjournments.  

I take that to mean that the judge needed to wait until 2pm, open the hearing, then  adjourn only after she had not turned up at the scheduled time.  

If I had turned up at 2pm I believe that they would have had to hand over that evidence and then they would not have been able to ambush her with it at the next hearing after adjourning.

I suspect that the handing in of this evidence is what caused the early adjournment. 

I never received that evidence and the new tribunal used that evidence at the new hearing.  

I plan to appeal to the upper tribunal and would like to know if this is likely to be an error of law. 

mikehughescq

Hmm. That’s a really interesting one.

Some preliminary questions really.

1 - who made the offer? My assumption is DWP?
2 - you don’t actually say whether the offer was accepted. 

3 - are you saying the person making the offer refused to detail which points and why?
4 - what document was handed in? 

5 - how do you know it was used?
6 -  when was your complaint (pre or post hearing) and what was it about?