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New PIP claim refused, old claim pending 2nd FfT Tribunal

[Deleted User]
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edited June 2020 in PIP, DLA, and AA
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  • katho31
    katho31 Posts: 692 Connected
    Hi guys, REALLY need your advice! This is quite complex, so I will bullet point for ease of reading : )

    - I applied for PIP in Jan 2018.The claim is all related to mental health, I cannot leave my home unless with my mum, and that's only for appointments. I live in a "bubble", cannot engage with people apart from via email/text/online. I see nobody but my Mum.

    - Refused - I scored 2 points re help mixing with people & 4 points on Mobility - needs prompting to go on a journey. Not enough points to qualify for PIP.
    - Applied for MR - refused
    - FtT on 2 May 2019 - they spoke to me like i was something they'd stepped in - they agreed with DWP - appeal refused.
    - I requested their Statement of Reasons - contradictions all the way through - and no reason was given as to why they didn't consider higher mobility descriptors
    - Leave to appeal granted to the UT on errors of law - I was successful - I now have a newly constituted FtT panel set for a telephone hearing on 23rd June 2020

    - I applied again for PIP on 6.1.2020 (although the DWP insist it was 26.11.19!)
    - my health has deteriorated since my claim in 2018 - I have been moved from the UC LCW group to the LCWRA  group (I appreciate it's a totally different benefit) & had started therapy with Birmingham Healthy minds & then..........we went into lockdown - The therapy was a two pronged approach -  phone calls and visits from a support worker to try to get me out of the house and they had to stop.

    - I had my PIP telephone assessment on 18 May 2020 (due to Covid 19). I had previously cancelled TWO f2f appointments as I couldn't travel there & they refused a home visit.
    - I received their decision this morning - 0 points for anything :( 

    - I have asked for a copy of the assessor's report & will submit an MR.

    This is where I really need your advice. I was a solicitor prior to becoming ill. So........I can throw every piece of case law at them that they've discounted or ignored. BUT..........I feel that because I'm intelligent, can write well & can still use the skills I trained for 20 years ago..........I get penalised & they don't take my illness seriously. So........do I do this or not?

    The UT's decision regarding my first  PIP claim is completely scathing of not only the DWP's stance, but also the first FtT's decision. As this was a totally separate claim - can I submit any of the judge's findings in my current MR? 

    Do you feel that if you are a claimant that will fight them all the way and then reapply, this goes against you?

    I hope all of this has made sense and really would appreciate your thoughts.
    Louise 


    hi, and welcome. Wow your post is very similar to my situation, different reasons for pip application but yes, you made complete sense. i too consider myself fairly intelligent, i have often thought of this as a reason of things going against myself? not sure but im just as frustrated. someone will hopefully respond shortly to your post. take care and stay safe.
  • mikehughescq
    mikehughescq Posts: 8,847 Connected
    edited June 2020
    Not complex at all from my perspective.

    Okay, hard as it may be, put aside your legal training for a second. Your first claim - the subject of your appeal - is now time-limited to the day before you made your second claim. I presume you understand that? Your appeal is now only about January 18 to January 20. 

    You won at UT on an error of law. That’s no indication of the likely merits of a future PIP  appeal which will be decided on evidence and facts adduced on the balance of probabilities. If the SoS supported your UT appeal then you presumably only have had a short form decision which will carry little weight with a new FTT . If you have a long form decision bear in mind that a new tribunal can choose to disregard anywhere it offers guidance on the correct approach. 

    Mental ill health is acknowledged as being ill served by the PIP process and requires a real focus on bringing your case to life via medical and anecdotal evidence so it may well be that an approach based on case law is detrimental to your claims. Case law is of course there to be used but only to bolster a case in most instances rather than being the centre of it. 

    There’s an old saying that no-one knows less about housing law than landlords and no-one knows less about employment law than employers. Unless social security was your specialist area you need to distance yourself from an overly legalistic approach and go back to basics. Which points? Why? What’s your specific supporting evidence? What are the gaps? Play devils advocate. Pick apart your own case. 

    If you can’t do that then you need advice and representation from someone who can. Your local welfare rights service, independent advice centre or law centre. 

    PIP don’t really care who you are or what you did. At the end if the day it’s only about the evidence. Tribunals however will always take the hump at someone telling them how to do their job or citing case law as though it should bind them.

    Apologies if this comes over as a bit strong. I’m on your corner but you need to take a step back and let someone else take the reins so to speak.
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  • mikehughescq
    mikehughescq Posts: 8,847 Connected
    edited June 2020
    The last two instances where I tried to persuade posters a change of approach was needed appeared to cause some offence so thank you for that. 

    Okay so if you appeal to UT the SoS gets to make a response. If the SoS agrees on one of your errors of law then you’re normally given the option to accept a short form decision in your favour i.e. a decision where the UT judge barely writes a side and just says that both sides agreed there was an error of law so the matter is being returned to a new FTT, usually without further comment.

    Even if the SoS concedes there is an error you can still opt for a long form decision i.e. one where the UT judge has to cover every point raised over multiple sides. The outcome can still go either way - just cos the SoS agrees with your argument it doesn’t mean a UT judge has to. 

    If there’s no agreement between the two sides then the UT judge does what they’re paid for and produces a long form decision. 


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  • mikehughescq
    mikehughescq Posts: 8,847 Connected
    edited June 2020
    Interesting. Normally if the SoS concedes you only get a long-form decision if the UT judge has some points to make to a new FTT. It all looks impressive but it’s open to a new FTT to ignore the UT guidance completely. Some do. Some don’t. Most get distracted by other issues along the way. All I’m saying really is don’t go into your new tribunal with an expectation that the UT decision will steer their conduct. 

    It’s absolutely fine to mention the FTT and UT decisions at MR as well as mentioning case law but generally speaking you’re dealing with staff who wouldn’t know what a UT decision looked like so it’s unlikely to influence their decision. Nevertheless it can be useful with one eye on the appeal where you can say “look, I even to;d then thus and they just ignored it”. With a 16% success rate you might want to temper the effort you put into an MR. Your call though really. 

    On claims and MRs I routinely submit recent case law confirming it’s possible to challenge PIP award length without disturbing the amount of existing awards. At MR this, allied to a submission asking on what medical evidence DWP based a short award (there almost always isn’t any. They just pluck a date out of the air in most cases), produces either the correct award length or nothing. However, take that to appeal and such is DWPs level of reliance on template subs that they’ll ignore the case law and infer that the appellant is risking their whole award. My last tribunal on that issue took under 5 minutes to win. 
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  • mikehughescq
    mikehughescq Posts: 8,847 Connected
    With a 16% success rate there’s little you can include to your detriment provided you aren’t excessive on any front. A little caselaw is fine. A little extra detail per activity and so on. Less is more. Narrow it down to key issues and get it focused rather than running to pages. 

    I love “looking at the evidence in the round”. It translates as “we’re going with the HCP report but we haven’t looked at anything in detail”. 
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  • mikehughescq
    mikehughescq Posts: 8,847 Connected
    Best advice at this stage is to not focus on the HCP report. Identify a couple of things which make it look obviously stupid - your strongest arguments if you like - then move onto the strength of your own case. Dismantling a HCP report is easy but it won’t get you PIP. 

    Yes, MRs are won for a variety of reasons including some magnificent buffoonery from HCPs but again.. 16% success rate. A time who tells you they have the magic ingredients for an MR is fibbing. 
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  • mikehughescq
    mikehughescq Posts: 8,847 Connected
    No need to apologise. See the other recent thread I contributed to and spot the difference.

    In essence, yes, different benefits but some common ground so include but help them by identifying the obvious contradictions. 

    The irony here is that DWP used to use the ESA report for PIP and vice verse and would get picked apart by reps and tribunals. The argument being that they were totally different benefits. Then the moment we started including them DWP started using the totally different benefits argument and find themselves regularly beaten up on that too. The truth is somewhere between. It’s useful of obvious contradictions are highlighted. Just watch out for other areas where the WCA could be turned around to argue against PIP points. As long as you’re okaying devils advocate with yourself you’ll be fine.
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  • mikehughescq
    mikehughescq Posts: 8,847 Connected
    Take a neutral perspective. 

    The new FtT have to be informed of the outcome of your new claim because although they're covering a closed period their decision could, at a later stage, inform the outcome of any 2nd appeal against the 2nd claim. They're looking out for perversity if you like e.g. if they awarded you enhanced rate of both but subsequently found you'd got zilch on your new claim then there would obviously be some reconciliation to be done/questions to be asked and the likelihood of a DWP challenge to their decision would grow. 

    So, nothing especially unusual there. 

    As regards the futility of a new claim, I don't necessarily agree. 

    There are circumstances in which I would say pursue just the one claim to appeal and others where a new claim is always worth thinking about. 

    As an example, I had a case where a dual sensory claimant got zilch on the back of a claim pack with which neither I nor colleagues had involvement. There it was always going to be worth doing an appeal and a new claim because the new claim was always going to contain loads of detail missed from the original and was always going to get something rather than nothing at all. It was worth it as the second claim got enhanced and then enhanced and standard by the time we got to appeal. Linked it to the first appeal; got them heard together and the first appeal had great difficulty evading a decision which read enhanced and standard. 

    Had I looked at the original claim done by whoever and thought it was excellent I would not have entertained a second claim. Sometimes they're excellent. Sometimes they're really not. Most often it's the ones where you suggest to people doing it themselves how they ought to have approached it and they say "but I did all that". You can pretty much guarantee that they didn't. I'm not saying that in any cynical way. It's just one of the hard truths. There's sometimes a world of difference between what a claimant thinks is a brilliant claim pack and an actual brilliant claim pack.

    It can, of course, work both ways. 

    In your case you presumably did both claim packs so the problem (forgive me putting it as bluntly as this) may be that, although things may have changed, you were still the person doing the claim pack; likely approached the writing in the same way; probably approached the gathering of evidence in a similar manner etc. It's that old adage (I'm sure there's got to be a nicer way of putting this...) that if you do the same things then why would you expect a different outcome. 

    Now of course for all I know you took a completely different approach to each claim. In my defence that is pretty rare but I'll grovel in advance just in case. 

    What I think I can say is that there's no way they denied the second claim to sway the tribunals view on the first claim. There's every possibility the decision maker on the second claim had no clue you currently have a live appeal on a different claim. Even if they had known, it's just as common that they make an award so I wouldn't read too much into it. 

    Sticking with that thought, I would put to one side the idea that DWP are "tactical" in these sorts of circumstances. They wouldn't know a tactic from a tictac. To them you are literally just one of thousands of cases with a history; some evidence and a chronology of events. 

    There is nothing to stop you voicing such a concern ahead of or during your telephone hearing but I wouldn't. Even if it were true I wouldn't but I especially wouldn't because my experience tells me its not true. To you this is very personal and so every action by DWP or indeed HMCTS feels very personal. To them, it's just a process. They made the decision they did on your second claim based on the evidence as they see it. Nothing more nor less no matter how hopelessly incorrect you might feel they are. 

    Your focus would be better aimed at looking through each activity you think you score points on and asking yourself what anecdote or story you have about that activity to support your case. If you have a couple of anecdotes per activity you will be fine. 

    The only thing I would consider in a case like this would be getting the 2nd claim to the appeal stage and delaying the 1st appeal so the 2 can be linked and heard together for the sake of consistency. At this stage it may be easier and less stressful to just go ahead and get the 1st claim decided. 
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  • mikehughescq
    mikehughescq Posts: 8,847 Connected
    In terms of engagement think relationships and long conversations rather than speaking to a bloke at the till.  
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