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Do First-tier Tribunals Appeals set an example for the DWP to follow?

Thanatos

Hi all,

I know that UTT rulings are binding on those below but I am in the process of Appealing for the second time and just wanted some thoughts from the community.

As simply as possible, Claimant was awarded 16 points by the DWP, the Tribunal overturned it on Paper and awarded 37 points, over double the DWPs award.

Claimant is being forced to go through the process again and this time is awarded 18 points. Still less than half what the Tribunal awarded.

1. 16 Points (8 and 8) 2016 06 DWP Decision / 2016 09 Mandatory Reconsideration (No Change)

2. 37 Points (17 and 20) 2017 04 Tribunal Decision (On Paper)

3. 18 Points (10 and 8) 2018 06 DWP Decision / 2018 08 Mandatory Reconsideration (No Change)

In the Appeal Response the DWP wrote this:

“Please note the previous award was made at the discretion of the appeal Tribunal (page 199). The decision prior to appeal was the same as the current award.”

To me that is pretty much the same as saying “we have awarded you the same award as last time despite the Tribunal saying we got it wrong last time”.

Judge Wikeley in Upper Tribunal Decision SF v SSWP (PIP) ([2016] UKUT 0481 (AAC) [p20] referenced R (Viggers) v Pension Appeal Tribunal [p22]:

“It is elementary for the principle of public law that there should be, so far as is possible, consistency in administrative decisions.”

My question is this: Since the Tribunal decided the DWP got it wrong last time, isn’t the DWP supposed to follow the example of the Tribunal if the circumstances are pretty much the same?

Kind Regards

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Yadnad

Thanatos said:

Hi all,

I know that UTT rulings are binding on those below but I am in the process of Appealing for the second time and just wanted some thoughts from the community.

As simply as possible, Claimant was awarded 16 points by the DWP, the Tribunal overturned it on Paper and awarded 37 points, over double the DWPs award.

Claimant is being forced to go through the process again and this time is awarded 18 points. Still less than half what the Tribunal awarded.

1.            16 Points (8 and 8)           2016 06 DWP Decision / 2016 09 Mandatory Reconsideration (No Change)

2.            37 Points (17 and 20)      2017 04 Tribunal Decision (On Paper)

3.            18 Points (10 and 8)        2018 06 DWP Decision / 2018 08 Mandatory Reconsideration (No Change)

In the Appeal Response the DWP wrote this:

“Please note the previous award was made at the discretion of the appeal Tribunal (page 199). The decision prior to appeal was the same as the current award.”

To me that is pretty much the same as saying “we have awarded you the same award as last time despite the Tribunal saying we got it wrong last time”.



Judge Wikeley in Upper Tribunal Decision SF v SSWP (PIP) ([2016] UKUT 0481 (AAC) [p20] referenced R (Viggers) v Pension Appeal Tribunal [p22]:

“It is elementary for the principle of public law that there should be, so far as is possible, consistency in administrative decisions.”

My question is this: Since the Tribunal decided the DWP got it wrong last time, isn’t the DWP supposed to follow the example of the Tribunal if the circumstances are pretty much the same?

Kind Regards

Please bear with me
I'll go one stop further where a Tribunal was not involved. Previously on DLA - High Care & High Mobility.

PIP decision 2013 - no points
MR 2014 changed to award Enhanced Care & Mobility

PIP decision 2015 - no points
MR 2016 changed to award Enhanced Care & Mobility

PIP decision 2017 - no points
MR 2018 no change - still no points

poppy123456

@Yadnad I'm not sure what relevance that has to the actual question.

@Thanatos I'm sorry i don't have an answer for you but i'm sure someone will see this and answer your questions.

Thanatos

@Yadnad - Yes, lots of people are having issues.

@poppy123456 - Thank you for your response. I am complaining to the DWP of Maladministration for a number of reasons and writing to my MP but looking to see if anyone here had any thoughts so I could decide to include this issue.

Thanks!

Thanatos

@Username_removed Thanks for the response and it is definitely food for thought.
My question has been answered but I am happy to keep the thread going a little longer in case it helps others. I am carer and tribunal representative.

It does surprise me though that using virtually the same evidence the DWP awards half the number of points of a Tribunal when the Tribunal does not interview the claimant. Meaning that both are using the same evidence.

I can understand that the Tribunal Decision is not Binding next time around, but I would expect that it should at least guide the DWP to provide a similar result.
Especially when the 2018 PA4 report shows claimant should get a higher descriptor on 4 activities than the 2016 PA4, with the other 8 unchanged.

1. The DWP awarded 2 years but the 2016 Tribunal Award was for 3 years. I am asking for at least 5 years this time. It was terminated 7 months early using the current DWP tactic of using Regulation 11 at 12 months before expiry, triggering a face to face assessment, then using Regulation 26 Supersession.

So no, in an objective reality I do not think there were grounds to change the award but the DWP is not objective, nor are ATOS (IMHO).
But Reg 11 = a new PA4 = Reg 26 = whatever decision they feel like terminating the extant award - and they usually ignore "R(M) 1/96" and don't explain properly.
Then it is up to us to Appeal to Tribunal for a more Objective result.

2. There were no medical grounds for supersession of the existing award, hence using Reg 26, and the letters I provided from medical sources AFTER they had requested a new Face to Face showed that the Claimant continued to be affected by the same conditions.
Medical organisations don't like saying "how" someone is affected in letters as it is often hearsay to a significant effect, so PA4 Reports tend to take precedence.

3. By On Paper = We requested an Oral hearing for the 2016 PIP Appeal but we arrived on the day to find the Tribunal had already reached a Decision in our favour and the results were waiting for us when we sat down.
So effectively they reached a decision based on the evidence that was submitted to HMCTS in advance as if it was a Paper hearing. There were 270 pages.
The Decision notice said - "In reaching its decision the Tribunal placed particular reliance upon the totality of the evidence."
The DWP did not challenge the 2016 Tribunal decision.

4. We are currently waiting for a Tribunal date for the 2018 PIP Appeal and are currently at 360 pages but I expect it to be approx 400 at the time of the Hearing.

5. The diagnosed conditions are a complex interaction of physical and mental health issues of which many have regular ongoing quarterly reviews.
The claimant is young and suffers from Fibromyalgia, ME/CFS, Bipolar II, Borderline Personality Disorder (AKA Emotionally Unstable Personality Disorder), Social Anxiety, Agoraphobia, Anorexia, Depression, IgA Deficiency, EDS 3, TMJ ... Well, you get the idea. The Claimant is diagnosed as affected to a significant degree with quite a few of them.

6. The DM's did not even hit 12 points. The Tribunal came to a decision on each item, which is fair in my opinion. Especially considering the way I laid everything out so they basically looked at the "Evidence in Chief" I provided and agreed with me on most things. I had provided UTT case law examples and excerpts so everything was in front of them.

It may not be as bad as you think in regards to awarding points after reaching 12 points. For Daily Living it was 13 points then they awarded 1 more activity at 4 points to reach 17. For Mobility, it was 10 and 10.

7. My MP is currently involved :-), but as you say, can't interfere. They initiated the Complaint at our request that I am now escalating. The Maladministration is multifaceted and probably not worth going into here.

At the end, you suggested it may be "easily challengable by the DWP"? Is that in reference to the Tribunal Awarding 17 and 20, or for another reason?

A bit long but did my response make sense?

What I would say to anyone with the stamina to read this is, if you are unhappy with the DWP decision and think you are entitled to more, APPEAL. Get help. Don't give up. It may not always work but if you don't try you will never succeed and will always wonder - "what if?"

Cheers

Yadnad

poppy123456 said:

@Yadnad I'm not sure what relevance that has to the actual question.

The point being that, as with the OP, the DWP are certainly not bound by either a previous FT Tribunal decision or even their own previous decision from a MR when using exactly the same evidence.
Like the OP one would expect that what was decided before should be considered as a starting point if nothing material has changed in such a short time.

As in my case to go from over 12 points for both Care and Mobility to 0 points for both with just over 12 months in between using the same evidence is ridiculous. The OP has had the similar problem following a Tribunal decision.

At the end of the day the DWP can decide what points to award based generally on a face to face assessment report and even where there are no changes in the impact.

Yadnad

Thanatos said:

@Username_removed Thanks for the response and it is definitely food for thought.
My question has been answered but I am happy to keep the thread going a little longer in case it helps others. I am carer and tribunal representative.

What I would say to anyone with the stamina to read this is, if you are unhappy with the DWP decision and think you are entitled to more, APPEAL. Get help. Don't give up. It may not always work but if you don't try you will never succeed and will always wonder - "what if?"

Cheers

Thankfully your client is extremely fortunate to have you as their representative. Many are not so fortunate and can't even access help with filling out the PIP2 forms never mind advice in dealing with a possible appeal.

I would say that the majority of claimants are unhappy if the DWP decision is not what is believed to be the right one. Most do a 'DIY' MR but anything after that it is in the lap of the Gods.

I'm a fairly well educated guy with professional qualifications but the thought of taking the DWP to a Tribunal is a step too far due to age and illnesses..

It's a shame that there aren't enough people like yourself around to help those that really can't help themselves.

Thanatos

Username_removed said:

If you have had a three year award and are now looking at five then why would you not argue for ongoing? What is going to change for the better in five years? You’re already saying this has impacted for eight so why not ten or more?

DWP gave 2 years for 2018, but your point is good. I am arguing for 5 years so I will some extra effort for

Username_removed said:
I think the key here is one little word “virtually”. Virtually the same evidence is not the same as the same evidence and the danger of quoting only 1 or 2 pieces of case law is that you sometimes miss the bigger picture. In particular the various decisions which conclude that if a decision is within a range of reasonable responses then it is reasonable; the ones which talk about the extent there’s a duty on DWP to explain any changes (not as often as you might hope) and especially the case law around whether it’s open to a DM to do,e to a different conclusion on the same evidence (it always is).

Sorry, I have to say that I did not fully understand this paragraph.
In the 2016 Appeal case I think I quoted over 60 UTT decisions to support our case.
I don't think this is what you mean but I am quoting SF, DS, KB, PM, MR, TH, GA, JH and BB amoung others because the DWP, even using Reg 26, have not explained the changes properly.

"various decisions which conclude that if a decision is within a range of reasonable responses then it is reasonable" - Examples?

Username_removed said:

I think it’s easy to assume that the high number of points might have had a more positive influence whereas what it might have done is make you a target for review.

This I completely agree with. But unfortunately, a high number of points are warranted so there is little I can do but fight for a longer gap between them.

I also plan to fight harder during the Face to Face phase that creates the PA4 as that is where the decisions, sorry - recommendations, are made.
I believe we are

I will be blunt and say that I took a "Covert" recording during the face to face and I am going to offer it to the Tribunal as evidence along with a copy my complaint to ATOS. Would you believe with all the conditions the Claimant had, the assessment was only 30 minutes long?!?!

If the PA4 is accurate then we are more likely to get the Award that is deserved on the initial decision or at least make the fight easier.

Cheers

Thanatos

Yadnad said:
Thankfully your client is extremely fortunate to have you as their representative. Many are not so fortunate and can't even access help with filling out the PIP2 forms never mind advice in dealing with a possible appeal.

I would say that the majority of claimants are unhappy if the DWP decision is not what is believed to be the right one. Most do a 'DIY' MR but anything after that it is in the lap of the Gods.

I'm a fairly well educated guy with professional qualifications but the thought of taking the DWP to a Tribunal is a step too far due to age and illnesses..

It's a shame that there aren't enough people like yourself around to help those that really can't help themselves.

Actually, I am the ex-partner to the Claimant so have a thorough understanding of the issues faced. And I am also disabled, Wheelchair, and took the DWP to Appeal in my own case. Amusingly enough the Tribunal phoned me in the morning and said they had decided in my favour and I did not need to come in.

I am a DIY and have no formal qualifications in this area. I just know that I am always right. lol

I am actually thinking of helping others but have to settle my current case first. And it would have to be in the area that I live.

Cheers

Thanatos

Yadnad said:

poppy123456 said:

@Yadnad I'm not sure what relevance that has to the actual question.

The point being that, as with the OP, the DWP are certainly not bound by either a previous FT Tribunal decision or even their own previous decision from a MR when using exactly the same evidence.
Like the OP one would expect that what was decided before should be considered as a starting point if nothing material has changed in such a short time.

As in my case to go from over 12 points for both Care and Mobility to 0 points for both with just over 12 months in between using the same evidence is ridiculous. The OP has had the similar problem following a Tribunal decision.

At the end of the day the DWP can decide what points to award based generally on a face to face assessment report and even where there are no changes in the impact.

That does make sense. It was hard to see what your point was from the original post, but with that explanation, it is indeed interesting.

That was why I included this quote. I believe that while it is well known that Tribunals are administrative bodies, but the DWP Decision Makers fall under the same heading and are actually official legal Administrative Decisions too.

Judge Wikeley in UT Decision SF v SSWP (PIP) ([2016] UKUT 0481 (AAC) [p20] referenced R (Viggers) v Pension Appeal Tribunal [p22]:

“It is elementary for the principle of public law that there should be, so far as is possible, consistency in administrative decisions.”

I would hope that after going from 12 to 0 points in 12 months was a case you took them to appeal over? It should be an easy one to win.

Cheers

Thanatos

As far as the length of Award is concerned I am of the understanding that the real question is "what time period is reasonable for the person to improve to an extent they can find it easier to complete the Activities". Someone with CFS and Depression can improve if given the right treatment.
With this in mind, I think 5 years is reasonable, though I would far rather it is ongoing as the stress of the process is significant.

As far as the UTT decisions, I totally understand. I only reference them in the main document and put the quotes in a separate document in case they wish to refer to it. However, they are germane.
3 the max in a case?? If you are arguing for 8 Activities in a single case then I can't understand 3.
I will take your comments under advisement. :-)

I totally disagree with 30 minutes. Having been the subject as well as a carer as well as a representative in these meetings.
Unless someone is not affected very badly then it is not possible to cover someone's conditions, medication, average day and 12 activities combined with the Reliability criteria.
And yes, you have to talk about the conditions or it is not possible to know the questions that need to be asked.
It is simply not possible to do the job FAIRLY in 30 minutes.
This is one point I do disagree on.

Please remember that anyone attending a face to face is already stressed by the time they arrive. These appointments have significant consequence for their lives and their thoughts will be chaotic and they will not be able to remember everything that they need to say unless it is coaxed out of them with the right questions.
It is not the same as talking about yourself for 20 to 30 minutes.
It is a question and answer process where the assessor has to try and draw out the responses, with repeated changes of topic
And yes, the more problems someone has then the more they are affected day to day in different ways. Therefore the more time it will take to explain how they are affected and whether it is repeatable or to a reasonable standard.

The reason a lot of people do not get a fair award is because not enough time is taken during the assessment phase to get the right information to draw the correct picture of someone's life and how they are affected when trying to complete the 12 activities.

The PIP2 is the most important part but the assessment phase is almost equally important and if not enough time is spent there then you end up at Appeal.

Thanatos

Username_removed said:
Also, keeping it simple, nothing one DM does, should bind another.

You are of course 100% correct. But look at it from another direction...
If they are all following the same Law, Regulations and Guidance then all the decisions should be the same.
So it is 100% reasonable to expect that a decision made by one DM should be the same as made by another. And if it isn't then there should be reasonably explainable why there is a difference.

If only it was a perfect world. :-)

Username_removed said:
You’ll be aware of the one case cited by the BBC re: covert recording. I look forward to seeing what happens if a tribunal allow admission.

I'll let you know, I believe it is still up to each individual Judge to decide. I did, however, inform the DWP during Mandatory Reconsideration stage that there was a recording and quoted from it as examples of where there were problems. I was ignored.

Thanatos

You obviously have a great deal of experience in this area and I respect that. I know how I feel things should work but I also know that is being extremely naive and stupid.
I am currently writing the Evidence in Chief for the 2018 Appeal and I am listening to you what you say. I will take the time to fully digest what you have said - and linked - before I respond properly.
But I do appreciate you taking the time to respond. I know I am not alone in my view and responses so, hopefully, this thread may educate others as well.
I will respond soon.

Cheers

Thanatos

Username_removed said:
You’re writing a submission rather than the “evidence in chief”. It’s not a court and use of legal phrases out of context makes a rep look an **** rather than knowledgeable:)

Funnily enough, I was told to call it that by someone whose job it was to be a representative. lol. Also there are references to it being called that by law firms, disability law service and others with reference to pip tribunals not just employment tribunals etc.
Remember as the Claimants carer I am a really more of a witness.

But I will admit that there are many more references to it being a "submission" so thank you. :-)