PIP, DLA and AA
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PIP appeal, Upper Tribunal and error of law?

FlorineFlorine Member Posts: 41 Connected

Hello.  I thought I read somewhere that it might constitute an error of law if a PIP tribunal asks for evidence of previous related benefits decisions from the DWP, but then goes ahead and decides without that information anyway - but I've no idea where I read it.  Can anyone confirm this, or if you're not willing to do so, point me in the direction of relevant decisions or something, please?

What has happened in this particular case is that the DWP did not respond to the request at all.  I notified the tribunal that I'd put in a GDPR request to obtain the information, but the tribunal has gone ahead and decided before that information was sent.  The GDPR papers contain a recent re-assessment - no idea where it came from - which gives a higher PIP score than that awarded by the tribunal.  I'm thinking that in view of the fact that Christmas is going to get in the way I might need to request a statement of reasons, even if only as a precaution.

Replies

  • poppy123456poppy123456 Member Posts: 22,218 Disability Gamechanger
    Hi,

    I can't answer the question about the error in law but if what you found was just the assessment report and no decision made with it then assessment reports are just a recommendation and nothing more.

    May i ask if you were awarded by the Tribunal and if so what award did you receive?
    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.
  • FlorineFlorine Member Posts: 41 Connected
    edited December 2019

     Thank you, Poppy.  (And my apologies - I was getting gateway errors when I tried to post, so assumed my original post hadn't gone through, and have posted a revised version.  Can it - and the others I've apparently posted :( - be deleted to avoid confusion?)

    No, it looks like a new PIP reconsideration (Form PA6, dated between the two sessions of the tribunal) - that's what it refers to - but there's no indication of why it was carried out.  It gives points for at least standard-rate personal care in addition to the standard-rate mobility which the tribunal awarded, so it would obviously be in the DWP's interest not to have it passed to the tribunal.

  • poppy123456poppy123456 Member Posts: 22,218 Disability Gamechanger
    @mikehughescq could you advise here please? Thanks in advance :)
    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.
  • mikehughescqmikehughescq Member Posts: 5,924 Disability Gamechanger
    I presume you mean a subject access request under the FOI Act?

    On paper this requires an immediate request for a set aside on the basis that the tribunal did not have a document before it and there was a breach of tribunal procedure rule 2 (the duty to co-operate). However, this is not a straightforward case. 

    1 - the tribunal rules also contain a provision which says any failure to comply does not automatically void proceedings.

    2 - tribunals must be decided in a timely manner. The expectation of claimants that delays can be introduced to enable them to make a speculative request for data in the hope of perhaps finding a magic bullet does not compel tribunals to wait. Some claimants expect tribunals to do just that when it comes to medical evidence they’re awaiting and exclaim how unfair it is when tribunals go ahead. It’s not unfair at all. Tribunals are rarely decided on one piece of evidence alone and very rarely on medical evidence. In this instance an FOI is a speculative request and you could be forgiven for thinking you’ve struck lucky. It’s not as simple as that though. 

    3 - it’s not clear here what the PA6 (a change of HCP opinion if anyone is wondering) said. If it suggested a revision from later than the date of claim for example then it wouldn’t be relevant to the decision under appeal. If it suggested a revision back from the date of claim then it’s equally important to remember that it’s a recommendation. A tribunal are not compelled to follow it in just the same way they largely disregard the unrevised opinions of HCPs anyway. 

    On balance I’d go for the set aside. I simply wouldn’t assume it will be a forgone conclusion. 


  • FlorineFlorine Member Posts: 41 Connected

    Mike, thank you very much - that's very helpful.  I was asking simply because various advice sources I would normally rely on may not be active at this time of year, and I didn't want to trip up on possibly needing to take action over the Christmas period.

    Yes, sorry, I did mean an SAR, since it seemed the only way of getting hold of the information the tribunal wanted after the DWP ignored its request: I wouldn't have said it was speculative - and I certainly didn't expect the PA6!  It's headed "Changes to previous advice to DWP", so presumably it was the DWP which asked for it.  It seems odd to me as a layperson that they would reconsider a reconsideration so late on, but it may be a regular occurrence, for all I know.  I assume the revision is from the original date of claim since it doesn't state anything to the contrary, but it's useful to know that it is only a recommendation.

    The PA6 changes from zero points originally being awarded in both categories to awarding low-level points in half-a-dozen personal care descriptors and 8 points for mobility.  The tribunal had awarded the 8 mobility points, and some slightly higher-level points in a couple of care descriptors, but not enough for an award in the personal care category.

    Once again, thank you for your time and insights, @mikehughescq

  • FlorineFlorine Member Posts: 41 Connected

    On balance I’d go for the set aside. I simply wouldn’t assume it will be a forgone conclusion. 

    Getting back to this, Mike (or anyone else), what is the procedure for a set-aside, please?  Is it via the statement of reasons route, or is it a completely separate issue?  I'd never seen anything about the possibility.  And what would setting aside the tribunal decision actually involve?  Would it cancel it, delete it, replace it ...?  The tribunal decision does occasionally give higher marks in some categories than the PA6, but presumably you can't cherry-pick between the two.

    And if the tribunal decision is set aside, does that mean you are likely to have to go to another tribunal? (unlikely to be a viable option in this case) :(

  • mikehughescqmikehughescq Member Posts: 5,924 Disability Gamechanger
    See rule 37. 


    You can apply immediately or after getting an SOR/ROP. It can run parallel to an application fir leave to appeal although HMCTS will usually prioritise the set aside. 

    If a decision is set aside then what happens next depends on what decision was under appeal. 
  • FlorineFlorine Member Posts: 41 Connected
    @mikehughescq, thank you very much for that - I don't know why I didn't get a notification of your reply when I've been getting them for threads I've simply replied to!  Sounds as though 2(a) or (b) would apply, but that we'd now be out of time for doing it that way because of Christmas getting in the way.
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