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

ThanatosThanatos Member Posts: 13 Connected
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


Replies

  • YadnadYadnad Posts: 2,856 Member
    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


  • poppy123456poppy123456 Member Posts: 22,218 Disability Gamechanger
    @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.
    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.
  • ThanatosThanatos Member Posts: 13 Connected
    @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!
  • mikehughescqmikehughescq Member Posts: 5,936 Disability Gamechanger
    To answer the title of the thread...

    A first tier tribunal is not case law in the way an upper tribunal decision is. It cannot bind another tribunal. 

    However, a FTT decision is THE decision on your case until a further decision is made. The question is really one of whether there were grounds to change rhe decision. 

    Now, in your case we’ve no clue as to your conditions or their consequences. It’s also not clear what you mean by “on paper:. Do you mean the hearing was a paper hearing? 

    Okay, so having said that, let’s assume you have conditions which are unchanging or degenerative. That begs the obvious question as to why there’s a fresh decision a year after the appeal decision? The answer to that is that I’m guessing you didn’t ask for a specific length of award such as an ongoing award? If you don’t make the case for that then sadly this is where it tends to end up.

    However, the intriguing element for me here is how a tribunal hits12 points; keeps going and yet doesn’t appear to have made an ongoing award. The reason I say this is that it’s a well known principle of decision making (which is even clearer for tribunals) that once you hit sufficient points you stop. The DMs have clearly done that but the tribunal haven’t. If they were looking to make a point to a DM then it clearly failed and the lack of an ongoing award won’t have have helped that. 

    Where this leaves you is that your FTT decision is not case law; does not bind a DM and looks potentially an easily challengable one if you were the DWP. 

    Your MP may be interested but can’t interfere in the process. If you don’t want this to happen then you need to argue both for the points and the length of the award. I’ve no idea what your case for maladministration is but it won’t be this.
  • ThanatosThanatos Member Posts: 13 Connected
    @mikehughescq 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


  • mikehughescqmikehughescq Member Posts: 5,936 Disability Gamechanger
    Yes, all makes sense and I agree with much of what you say to the extent I’ll only say two things in response. 

    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? 

    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). 

    And yes my “challengeable” comment related to the tribunal bit stopping once they’d found 12 for each component. It no longer matters as you’re now looking at a second appeal but 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. 

  • YadnadYadnad Posts: 2,856 Member
    edited November 2018
    @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.


  • YadnadYadnad Posts: 2,856 Member
    Thanatos said:
    @mikehughescq 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.
  • ThanatosThanatos Member Posts: 13 Connected
    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 
    mikehughescq 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?

    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
  • ThanatosThanatos Member Posts: 13 Connected
    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
  • ThanatosThanatos Member Posts: 13 Connected
    Yadnad 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

  • mikehughescqmikehughescq Member Posts: 5,936 Disability Gamechanger
    Thanatos 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 
    mikehughescq 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?

    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
    I’ll take ‘em one at a time then.

    You need to think differently re: the length of award. What is the evidence for less than an ongoing award? That’s the way to approach the issue. 

    60 UTT decisions!!! Not a good idea. May have worked in your favour on this occasion as they probably couldn’t face the thought but generally it’s a bad idea. Over 30 years or so I think the average I quote is 3 and the highest was probably 8 in a mass case involving 62 appeals. 

    Just done a 12 hour day on duty so forgive me if I don’t go looking for cases. It’s one of those legal principles I’ve lomgsinve stopped thinking of in terms if case law. It’s simply obviously the case. Think of it in terms of... if it’s not Wednesbury unreasonable then it’s likely not unreasonable. Also, keeping it simple, nothing one DM does, should bind another. 

    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. 

    Personally I’ve no problem with 30 minutes. Their job would be impossible without a time constraint and if the claim form has been done properly then in all honestly 30 minutes at the most should do it, not least because it’s not about the volume of conditions but the weight of their consequences. I can talk to med7cal students for 45 minutes on my whole medical history and include time for questions. If I focus just on the consequences then maybe 20 to 30 at most. 




  • ThanatosThanatos Member Posts: 13 Connected

    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.

  • ThanatosThanatos Member Posts: 13 Connected
    mikehughescq 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. :-)


    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.

  • mikehughescqmikehughescq Member Posts: 5,936 Disability Gamechanger
    Again, one at a time. 

    No, the question is not about improvement as it cannot take into account possible future developments. It can only be based on the evidence of prognosis as it is now. 

    You don’t need case law on a per activity basis and if you only quoted rather than enclose a copy of the full decision it will have been disregarded anyway (and yes I know DWP do the exact thing I say you shouldn’t). Back in the mists of time there was indeed a case which specified that the practice is that if you cite case law then the decision must be in there in full. Just like if you have a letter from your consultant it will be given less weight unless you also enclose your letter to the consultant. 

    The only thing you need on a per activity basis is two or three decent anecdotal examples. 

    You might disagree with 30 minutes but why would you cover conditions, meds and all activities in a face to face? All are covered in the claim pack and that’s not what the face to face is for. No you don’t need to talk about the conditions at all as a properly completed claim pack covers that in full. What you’re describing is illustrative or where many claimants go wrong on these things, They’re seen as a chance to tell their story. That is absolutely not what they’re about and trying to twist it into that by pursuing your own agenda of repeating what’s in the claim pack is a fools errand. The fact you talk about people needing to remember what they “need” to say is telling in that respect. Anyone going onto a face to face expecting to tell their story in full because otherwise a HCP can’t possibly understand simply hasn’t understood the process at all. Time is also irrelevant here. I’ve known many assessments run to 2 hours and still make the wring recommendations because the HCP didn’t get a grip and focus rhe claimant solely on consequences. The reason a lot of people get the wrong award is generally to do with poor claim packs and then thinking the HCP is a nasty person for not lettting them repeat or expand on their claim pack. It is a comprehensive misunderstanding of the process. The PIP 1 and 2 are the single most important parts of the process. The HCP report only gets to skew the facts if the PIP for,s hsvent adequately covered the basic ground in detail. 

    I don’t mean you personally or exclusively here. I hope that’s clear. Your concern with the claimant dictating the agenda though is ringing alarm bells as is the ficus in case law. 

    Repetition is not a winning strategy and nor is dealing with every activity. If someone scores points on 3 areas of DL that’s the sole area of focus. I think you have mosunderstood the purpose of the meeting which is for a HCP to form their own view based on the claim pack and brief discussion. There is no role for representation in such things. Carer, companion and appointee but not representative. 

    Your last comment about law, regulations and guidance perhaps shows a fundamental misunderstanding of how law works. You can only follow the law. Law is never wholly clear cut. That’s exactly why case law helps clarify and why guidance is there for decision makers. Neither case law nor guidance are usually wholly prescriptive, albeit there are exceptions.

    For the most part you follow case law but case law is not binding unless a three person UT panel and just like DMs single UT judges often disagree, Contradictory perspectives on the same wording are the norm not the exception. Oblter decisions are also frequent. 

    Guidance is just that. It is not the law and unless statutory it is neither binding nor there to be of any other use than to be taken account of. It’s again perfectly possible to take account of something but go in a different direction. A lovely bang up to date restating of the fact that you don’t even always have to explain why you did or didn’t do something different can be found this past month in https://assets.publishing.service.gov.uk/media/5bdd64a2e5274a6e1a5ad6bb/CPIP_2307_2017-02.pdf.

    Thus it is plainly ludicrous to expect that given the same evidence every DM or appeal panel will make the same findings of fact and arrive at the same conclusion. The law has to be more nuanced than that and if it were not then why not just hand over such things to automation!

    If you are to become an effective representative then this last point is something you need to take on board and embrace fully as it is how the law weeks and the basis of fundamental concepts like tort. You effectively need to kick out of yourself the idea that one set of evidence - only one possible finding of fact - only one possible conclusion. 
  • ThanatosThanatos Member Posts: 13 Connected
    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
  • mikehughescqmikehughescq Member Posts: 5,936 Disability Gamechanger
    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:)
  • ThanatosThanatos Member Posts: 13 Connected
    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. :-)

  • mikehughescqmikehughescq Member Posts: 5,936 Disability Gamechanger
    Glad you took it as intended. The key with tribunals is to remember they’re meant to be informal and as a rep you can help by using as much plain language as possible. The people you refer to are likely acquainted with the more formal end of tribunals like ETs so understandably but sonewhat misguidedly they do tend to use language of a more formal type. It isn’t the language spoken by panels, DWP or HMCTS though. 
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