Leave to appeal to upper tribunal refused

cat_hug

Hi Everybody,
Ive just had a letter today informing me that my request for leave to appeal to UT has been rejected. Its another major blow, because I know without a shadow of doubt that the 1st tier tribunal made an error in law in rejecting my PIP appeal.
I understand that I can now apply directly to the Upper Tribunal to ask for leave to appeal. Does anyone have much experience of this situation? ie taking appeals to UT? I am struggling to keep my head above water and feel like Im sinking in a pit of despair. I lost PIP by just one point for Daily living, but was awarded enhanced mobility. (12 points for needing someone with me to plan/make a journey).

One of the descriptors I appealed for Daily living, was for needing help with social interaction. Both the DWP and the 1st TT, rejected this as they said I coped fine with dealing with their assessment and the tribunal itself and that I 'was not anxious'

I asked the tribunal for leave to appeal as I believed they had made an error in law re. Descriptor 9 and they had not addressed the question in a social interaction setting, but simply their perception that I wasnt stressed by dealing with professionals or in transactional situations.

My request has been rejected because they say the tribunal explained why it rejected my appeal and just because I disagree with their decision, does not amount to an error in law.

Is it usual for tribunals to reject a persons request for leave to appeal, in the same way that the DWP rejects most MRs?

I have sought advice about my situation and WRU feel the tribunal made an error in law too. There are other descriptors I believe the tribunal erred and also the fact that the DWP rep was already at the tribunal before I entered the room. These issues however, were not addressed in them rejecting my leave to appeal to UT.

What do I do now? Im at my wits end?

Thank you in advance for any help/advice/

Best wishes

Cat

woodbine

I believe they are correct that just because you disagree with their decision doesn't mean they have made an error in law, the best you can do perhaps is research the law and case law, perhaps the DWP rep was already in the room as he/she had been involved in the previous hearing? What errors do the WRU feel were wrong?
One other point how long was the award for? if its fairly short term you could accept it and hope for a better outcome next time?

chiarieds

Hi @cat_hug - I feel that the presumption that because you were able to answer any queries with your tribunal does not mean that you are necessarily able to 'socially interact.'  Perhaps descriptor 11 might be more appropriate?

In my own case, I felt, that as I stated, that just because I was used to dealing with medical questions to help my family more, this did not infer that I could 'socially interact.' As it was, I didn't take this further with a MR, as I already had sufficient points for the standard rate of daily living that I felt appropriate.

I will ask @mikehughescq for his opinion, as he is better able to advise.

cat_hug

Hi, I can agree that my disagreeing with the tribunal's decision, does not constitute an error in law; however, in this case, I feel the tribunal most definitely DID make an error in law.

As in the situattion you mentioned too @chiarieds I also feel that the tribunal maybe confused the descriptors or perhaps failed to consider an overlap?

I feel that the judge viewed my case harshly because it was maybe 'too well presented' also (she seemed pretty irked that I'd highlighted some UT caselaw in my appeal and in retrospect, I don't think I did myself any favours there.

However, as I had a year to research and prep my appeal for tribunal, I put everything into it and spent literally months preparing. The UT caselaw that both myself and WRU felt was relevent in my case pertains to:

difficulties in relation to activity nine we believe the Tribunal erred in law as they failed to follow the established case law. As Judge Grey held in PM v SSWP (PIP) [2017] UKUT 0154 (AAC):

‘The definition of “engage socially” informs activity 9 (SF-v-SSWP (PIP) [2016] UKUT 543 (AAC)). It includes the ability to establish relationships.

Also 

Further clarification was provided by Judge Jacobs in RC v Secretary of State for Work and Pensions [2017] UKUT 0352 (AAC) who held:

‘I do not accept that establishing a relationship means no more than ‘the ability to reciprocate exchanges’. There is more to it than that. A brief conversation with a stranger about the weather while waiting for a bus does not involve establishing a relationship in the normal sense of the word. Nor does buying a burger or an ice cream, although both involve reciprocating exchanges.

Would appreciate your thoughts  Mike Hughes?

Thanks in advance again

Best wishes

Cat

mikehughescq

Very simple really. Applications for leave to appeal to UT are often routinely rejected at regional level and you shouldn’t read anything into that in terms of the merits of your case. You already know you can now apply direct and that’s what you need to do. It may not even be necessary to alter the wording of your original application bar confirming that your first application was rejected and providing the evidence of that.

Obviously I don’t know the detail of your case but the gist of your argument, that social engagement has been misinterpreted, is an argument of law not fact and so you’re very much on the right lines. 

Don’t be disheartened. Going to UT is a long boring process anyway. Just get the next stage underway. 

Every single application I’ve made to region has been rejected over the last 20 plus years. It’s comical. Only 2 have subsequently been rejected at national level. 90% of them go on to win and head back to FTT where they have all succeeded. On 1 I have to agree there was no error of law. The other was nonsense but we couldn’t afford to pursue via JR. 

cat_hug

Mike Hi

thank you so much for that. Wow! I am astounded that every application made to regions have been rejected. That gives me hope as I had believed they were saying my case had no merit.

I think I told you before a little of my background? That I have pretty severe Narcolepsy/cataplexy and in 2010, had a brain aneurysm which resulted in stroke (twice) and this resulted in other complications (heart arrhythmia, problems with memory, anxiety etc). A couple of months after my first aneurysm, my partner died suddenly from cardiac arrest, then In addition, two of my younger sisters died unexpectedly (one due to a rare hereditary tumour that went undiagnosed and my other sister through suicide).

 My Mum was the most recent significant death and since losing so many people dear to me, coupled with my physically health going on a slow decline, I've found it increasingly harder to communicate with people (even family in all honesty). I have a phobia about answering/making phone calls (which I know sounds really silly) but I think its gotten to the point that I associate phone calls with news of a death. (My Dad has usually sent me a text first, warning that he is phoning and could I please answer)

So between these things and wondering if Im going to make a complete ass of myself, if Im out and about in public (falling asleep or collapsing, usually has people thinking I'm drunk or on drugs, which is embarrassing).

So trying to explain this at health assessments, and then at FTT to a judge who seemed to disbelieve me or at best, minimise in her own mind, how I feel or manage social situations, has been like trying to swim upstream through treacle!

I have no documented medical history that relates to mental health or anxiety; only the physical problems that I've has (ie diagnosis of lifelong neuro condition and the aneurysm, stroke, heart etc) so its difficult to 'prove' the problems I have with particular descriptors, you know?

When a judge or HCP states, 'was not anxious', they say an opinion as if it is fact. They are not living in my skin, so how can they say Im not anxious?

They say 'client was alert' throughout my medical despite the fact it was documented that the HCP had to awaken me twice, to continue the assessment. 

There are so many inconsistencies and contradictions in my case, I could honestly scream. The fact that the FTT panel seemed to completely disregard them too, was soul destroying.

I just pray that the UT will take a better look. 

Sorry, Ive just gone on a rant and written War and Peace again... Apologies. I'll stop there.

If you can think of any advice about how I write to UT directly, Id really appreciate any help or pointers Mike. Thanks again. Night night

Catx

Lulu_1949

@cat_hug. I have just read your post and wanted to send you all my love🙏🏻 and wish you all the best 😘xx

mikehughescq

Just repeat what you wrote first time. I rarely change mine and they tend to go from 0% success at regional level to over 90% nationally.  

cat_hug

Hi Mike, cheeky question but how would someone get referred to you to represent them with their appeal? Although I had WRU rep me at FTT, I'm not confident they can do this to best of their abilty (simply because they are so overstretched and prob under resourced). Quite honestly, its causing me a lot of stress as its really hard to get a response about anything and evidence is literally being left until the 11th hour of deadlines to get sent etc.

I only had the one face to face appointment last year which was for approx 45 mins (and I'd already done the bulk of the work prepping the case myself, prior to that).

The other thing that is worrying me is that Ive not heard anything back from then since before submitting my request to appeal to UT,. I had asked that she send me a copy of the final draft of the letter requesting leave to appeal , before it was sent to HMCTS, but that wasnt forthcoming; nor my further requests to send me a copy for my files, since.

Its too important an issue and I've fought too long and too hard, to trust my case in the hands of someone who is, despite being capable, probably very likely, overworked and underpaid and stretched to breaking point. I don't wish to sound disparaging of WRU as they do a great job, but I just need to feel I have confidence in my rep and quite honestly, I cannot say that I have.

So my question is, would it be any way possible for you to look over my case and if so, how would I good about getting referred to you? Sorry to be so cheeky but I'm pretty anxious and dont want to just give up after all this time.

The date on the letter rejecting my request for leave to appeal, was July 3, so I'm surmising Ive got until the beginning of August to send my request to Upper tribunal? And can this be done online do you know?

Apologies again for barrage of questions and thank you once again in advance for any advice.

Best wishes and hugs

Cat

mikehughescq

Well the quick answer is that there are no circumstances in which I could look over your case unless you live in one particular geographical area. I will email you and not post further here for reasons which will become obvious.

mikehughescq

Actually on reflection I’ll post here. Sorry, not thinking straight. Weeks are long and exhausting at present. As per the above you’d have to live in my geographical area. Also, as you already have WR advice it’s best to not comment further. If you were to post your area I could say yes/no but I don’t think it’s appropriate to ask anyone to do so. On that basis I’d say stick with what you have. You’re doing okay.

cat_hug

Hi Mike,
thanks for replying. Its Leeds WRU. Not sure if its a given that I'll get representation for UT. It was made clear to me when I first started my appeal that WRU could only offer the one interview and if I missed that slot, tough cookie basically; one chance saloon.

Obviously I didn't miss the appointment, since Ive lost my FTT and haven't as yet got the ok to proceed to UT, I'm kind of in limbo a bit.

I get the impression that the help is there throughout FTT, but that W.Leeds doesn't have much experience of UT appeals.
I understand that IF my appeal does go to UT, you can qualify for legal aid to get professional representation.

I don't want to be disloyal or seem like disparaging WRU, truly not the case. I just feel that if it does go to UT (as opposed to getting bounced back to FTT), I need to get the big guns in and need all the help I can get.

Unfortunately, due to the very high demands on the WRU and similar non-profit adviocacy agencies, they simply don't have the time or resources to give individual cases they need, especially when its getting into the realms of complex legal arguments.

Guess I'm trying to get my ducks in a row in case I do end up having to go the full 9 yards and have my appeal at UT.

If that is the case, I don't feel confident that my local WRU are equipped to deal with it. If its taking weeks to just get a reply from a relatively straightforward email request, then it doesn't bode well for more complex issues.

Sorry, don't mean to put you on the spot. I just get the impression that you are very committed and knowledgeable about the cases that you represent. I really really would feel much better if I had someone like you in my corner. (without taking anything away from the help Ive had previously)

Thanks again for being patient. My head is a bit of a shed at the moment

mikehughescq

Sorry for delayed response. Have responded on a few other threads where not so much thought required. You have another advice service involved so primarily your next conversations need to be with them but a few observations. 

If this is Leeds City Council’s Welfare Rights Unit then their web site is clear that they offer “guidance and support when making appeals”. You’d need to talk to them about this but my reading of that would be that they don’t do representation so that’s something to immediately clarify. Every service is configured differently depending on funding; local understanding of need; other local advice provision and indeed local politics. 

At this point it’s worth repeating part of my earlier post i.e. “ Applications for leave to appeal to UT are often routinely rejected at regional level and you shouldn’t read anything into that in terms of the merits of your case. You already know you can now apply direct and that’s what you need to do. It may not even be necessary to alter the wording of your original application bar confirming that your first application was rejected and providing the evidence of that.”

The form you need is https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/689163/ut1-eng.doc and you should hopefully be able to see that it’s aimed explicitly at the scenario where your original request has been rejected.

The next thing to say is that by all means seek help to identify your error of law etc. but once you’ve done that then, at UT level, there’s arguably no desperate need for representation. UT judges, to whom you’ll now be applying direct, are very good at looking at applications and will often decide that even if they’re not sure your grounds are made out, there’s some other aspect worthy of discussion and give you leave on that.

Once leave is given then there’s a delay whilst HMCTS at region are asked by the UT to give them all the paperwork they have. Once that’s done you’re awaiting a response from the Secretary of State. Again, often a delay. Deadlines are routinely sailed by. This is regrettably not a quick process. The new appeal bundle is usually a magnificent mess of renumbered pages. You’ll notice though that nothing as yet absolutely requires a rep. Indeed if the SoS response agrees there’s an error of law you could find yourself back at FTT within a year and have had no need for a rep at all bar the initial identification of an error of law. 

Obviously this varies from case to case. Test cases and complex cases where maybe the SoS stands their ground may require a rep to argue in response or to address new points etc. but it’s often the case a rep will read such stuff and decide there’s no need to add anything at all.

UT hearings are overwhelmingly on the papers so again there’s rarely a need to press for an oral hearing unless there’s something legally new at stake so a rep may once more not be needed. 

Anyways, go talk to the WRU. Clarify what they can and can’t do - I very much doubt that will be a decision based on a lack of experience - and go from there.