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Question about daily living activity No. 9 Engaging with other people face to face

rbzrbz Member Posts: 96 Courageous
I have a hearing loss and my hearing level doesn't allow me to engage with other people. But I can't get points on this activity.
I believe that DWP was unlawful discriminate me because it treated for people with mental health problems more favourably than people with physical health problems.
I lost my previuos PIP Tribunal and at this moment preparing for Upper Tribunal. So I'm planning to argue that Daily living activity No.9 discriminates my health condition.

Replies

  • rbzrbz Member Posts: 96 Courageous
    @ilovecats
    Thank you for answer, but I believe that activity 9 discriminate some type of disabilities. This very similar like activity 11 (High Court decision [2017] EWHC 3375 (Admin)).
  • rbzrbz Member Posts: 96 Courageous
    @ilovecats
    I my case problems with activity 9 mainly caused by hearing loss and just little caused by psychological problems.
    Seems activity 9 discriminate some disabled people even they have difficulty with activity 9.
  • poppy123456poppy123456 Member Posts: 22,218 Disability Gamechanger
    You can only appeal the Tribunal decision on error of law.
    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.
  • rbzrbz Member Posts: 96 Courageous
    edited December 2019
    @poppy123456
    I believe that Activity 9 unlawful discriminate some type of disabilities and must be updated by High Court like was with Activity 11.
    I think DWP can't design specific  questions where some disabled people can't be awarded points even they have difficulty with activity.
    I planning pass my case to Upper Tribunal and ask treat Activity 9 same like Activity 11, because of Unlawful discrimination.
  • poppy123456poppy123456 Member Posts: 22,218 Disability Gamechanger
    edited December 2019
    That doesn't mean there was an error in law made. You can't just appeal the decision because you think it was wrong. Are you getting some help and advice with this?

    It's not about what decision the DWP made now because that's in the past. It's to do with HMCTS. You need to forget about what decision DWP made.
    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.
  • rbzrbz Member Posts: 96 Courageous
    edited December 2019
    @poppy123456
    First Tier Tribunal also not awarded any points for Activity 9 and already 14 weeks awaiting for Statement of Reasons.
    Our local CAB advisor can't help me.
    They failed prepare me for First Tribunal, and I lost, because of bad represented case.
  • cristobalcristobal Member Posts: 966 Disability Gamechanger
    edited December 2019
    rbz said:
    @poppy123456
    I believe that Activity 9 unlawful discriminate some type of disabilities and must be updated by High Court like was with Activity 11. I think DWP can't design specific  questions where some disabled people can't be awarded points even they have difficulty with activity.
    @rbz - it might be best to seek professional legal advice on this as you seem to arguing two things at the same time...

    I don't believe that you can challenge the tribunal's decision based on a supposition that the questions on the DWP form are discriminatory - there will be a separate procedure for discriminations claims and I don't believe that you're saying that the panel discriminated...

    It does sound from your later post that the reason why you weren't successful was poor advice. I'm not sure how this is dealt with but it won't be a matter for an upper tier tribunal - maybe a complaint against CAB??

    See a specialist solicitor if there's one local ...

    Good luck...



  • rbzrbz Member Posts: 96 Courageous
    @cristobal
    Did you know Activity 11 and High Court decision [2017] EWHC 3375 (Admin) ?
    Upper Tribunal = High Court? Or there was First Tier Tribunal -> Upper Tribunal -> High Court? Main
    PIP problem is that decision based not on actual claimant health conditions, but how claimant can explain problems.
  • cristobalcristobal Member Posts: 966 Disability Gamechanger
    @rbz - I'm not familiar with this sorry...

    I still think that you need specialist legal advice.I'd be surprised if you can appeal based on either - the DWP's form is discriminatory, or you got bad advice - but a solicitor will advise you...

    Please post what happens - I'd be interested to know what they say...
  • rbzrbz Member Posts: 96 Courageous
    @cristobal
    I try find something who can help me.
    But I believe if person have difficulty to engaging with another person - everyone must be awarded points ( no matter there physical or psychological disability).
  • poppy123456poppy123456 Member Posts: 22,218 Disability Gamechanger
    I think you're totally misunderstanding the descriptor. You're also thinking that you can appeal a Tribunal decision based on the wrong decision being made but you can't. Poor advise and poor representation will not allow you to appeal the decision.

    Once you receive the SOR then you'll need to find someone to take a look to see if an error in law was made. If that's not found then you won't be able to take this decision any further.
    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.
  • rbzrbz Member Posts: 96 Courageous
    edited December 2019
    @poppy123456
    I believe that descriptor for Activity 9 - designed for specific disability group. So there not fair if DWP excluded some sickness from this descriptor.
    By this reason I looking way to overturn current descriptor.
    I mean if High Court changed Activity 11, so based on same grounds (discrimination) - High Court also can change Activity 9.
    Regarding pass my case to Upper Tribunal you multiple times pointed "errors in law".
    Some people become confused by therm "errors in law", in real life there I can go to Upper Tribunal even I found things which Tribunal Panel members not take into account during Tribunal hearing.
    For example I not awarded any points for washing and bathe.
    I know that Tribunal panel members not take into account safety issues during this activity, because I can't hear smoke alarms during activity and etc.
    I'm awaiting for Statement of Reasons to see why I not awarded points for washing and bathe. Even I can't do this activity safe.
    Also I think Government must scrap PIP.
    Maybe DLA not worked very well, but at this moment Government spend much more money (especially for private companies like Capita, Tribunals and etc).
  • mikehughescqmikehughescq Member Posts: 6,009 Disability Gamechanger
    @ilovecats inadvertently shows exactly what the problem is here. It’s not discrimination so much as interpretation.

    DWP have it in their head that activity 9 is for mental ill health only. This assertion features regularly in decisions; MRs and appeal submissions. There is nothing in the law which says that and tribunals repeatedly confirm it’s not the case and never has been. 

    Equally there is nothing in it which restricts it to severe sight impairment. This is often asserted because HCPs wrongly believe that a person who is registered SSI must have worse vision than someone who is registered SI and also assume that measures of visual acuity equate to levels of visual impairment. Neither of the above are or ever have been true. Registration is ultimately a choice so it’s perfectly possible for an unregistered person to have far worse functional vision than someone who is registered SSI. Visual acuity is not a measure of visual impairment at all. It tells you nothing about functional impairment. For example a person with a VA of 6/12 is usually deemed to have a mild VI by HCPs and decision makers. That’s exactly the assertion made in HCP reports and DM decisions. 

    However, being able to see at 6m what others can see at 12 tells you nothing about whether what is seen is in focus; whether it could be seen in different colours; whether it could be seen in less than perfect light; whether it could be seen with a different colour background; whether it could be seen in a word made of all capitals or similar lower case letters; whether it could be seen if it was moving. VA literally tells you nothing then. Worse than that HCPs are not qualified to do such tests and do them at the wrong distances and in less than the required light levels. This is why campaigns already exist regarding the incompetent understanding of sensory conditions. See for example Wales Council of the Blind: 'Meaningless' sight test hits claims https://www.bbc.co.uk/news/uk-wales-48682106. The context for this is of course that people with sensory loss are amongst the lowest number of claimants in proportion to their existence in the population. The above sort of nonsense is exactly why. 

    An easy test on this is that if you have any condition which inhibits central vision through Iack of focus; too much light input etc. then you score 9c every time if you then struggle to do facial recognition. 

    Now, moving onto hearing impairment. 

    9b is easy. If you’re pre-lingually deaf then your lack of English means you’ll always need prompting to know that a conversation is aimed at you. The mere fact that lips are moving would never suffice. A fine example of this is if you were in a hospital waiting room with family awaiting the outcome of surgery on a relative. A nurse comes out to talk to the group. Is she addressing you or someone else? Someone would have to tell you. Thus 2 points every time. Even if you could lip read this would likely be applicable. 

    However, the bit that’s always got wrong here is that 9 is not about conversing or being able to understand. It’s about engagement. Engagement is not the same as being able to have a simple conversation. There’s loads of great and very clear case jaw on this which DWP continue to ignore and which HCPs never learn of because DWP don’t update the guidance to reflect the law as it stands. A fine example from one case was the idea of asking for a pint in a pub. Clearly held to be an interaction rather than engagement. Brevity is not the only distinction but it’s a good starting point. Being able to answer many questions from a HCP has definitively been held to not constitute engagement either because it involves none of the other requirements such as the ability to read body language and responding appropriately at the same time as interpret speech. 

    Problems with this are pretty ubiquitous with hearing loss and thus we’re back to 9c every time. However, what’s often forgotten here is that not having a person face you is an issue (and it’s surprising how few conversations are face to face - few HCPs sit face on for example) and environment is an issue. Most assessment on hearing impairment conveniently forgets environment (all sensory loss is environmental). What you can hear may require total silence. When was the last time you experienced total silence? What you lip read might require no other distraction. 

    More importantly many people with hearing loss struggle to get others to stop distracting them; struggle to explain whether they’ve understood a point or not and this use lots of body language and facial gestures which can be open to huge misinterpretation as potentially aggressive. Many hearing impaired people will recognise exactly what I’m describing here. It puts them at risk of reciprocal aggression. At that point you’re into 9dii. The latter does not require a claimant to deliberately exhibit behaviour which puts them at risk. They just need behaviour which can be misinterpreted and away you go. Have won this at appeal several times and it’s especially easy as many hearing impaired people are able to easily recall incidents where their attempts to communicate were met with bewildering aggression. 

    So @rbz not only can you score points on this activity but they are actually pretty clear cut and in some circumstances would trigger entitlement to standard rate daily living by themselves. 

    With some face to face advice it should be fairly straightforward to argue an error of law along the lines of either getting the law wrong or insufficient findings of fact. 

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