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Upper Tribunal. Is it ok to ask for expediency due to hardship?

cat_hugcat_hug Member Posts: 126 Pioneering
Hi all, haven't been on here for a long time. In honesty, been struggling with depression and physical health as well as consequences of losing first tier tribunal. 
Its almost a year since my FTT which I lost by one point.
I was refused permission to appeal to UT but they are looking into my case after writing to FTT for my case notes.
Its been many months since the UT wrote saying this was what was happening.
I appreciate that since the pandemic that nothing is going to move quickly, also, that these appeals can take a long time even without a pandemic.

I'm into my third year since losing my lifetime award of DLA and losing daily living allowance when the transition to Pip happened (ergo my appeal to FTT) this also resulted in losing severe disability premium of ESA. A double whammy so to speak.
Obviously then the pandemic happened but those of us not on UC couldn't get the extra 20 week increase either.
My question is, would it help or hurt my case to write to UT explaining the situation is getting beyond bearable due to massive reduction of income which literally happened almost overnight.
I go days without eating a meal, I cannot even think about replacing big items (such as my 23 year old mattress. Same age settee which is falling to bits, oven with broken interior glass etc) as I can barely afford to eat and utility bill debt is increasing on account of being in all the time, plus feeling the cold more since a heart op last October.
I know there are people in same and worse position, so I don't want to annoy the tribunal by trying to hurry them along. But equally, I'm desperate.
Any advice please? 
Thanks in advance everybody  xx



Replies

  • cat_hugcat_hug Member Posts: 126 Pioneering
    Hi, I've just this last 10 mins got letter UT re. Application to UT for permission to appeal.
    They have refused two of the 4 reasons but say I have 2 routes available to challenge.
    1. To set aside under rule 43
    2 Judicial review
    To be honest I can't get my head round this.
    One of the grounds they refused my appeal is because there is no descriptor 11f of mobility.
    This was in relation to my appealing whether the FTT properly considered daily living activity descriptor 9d in light of mobility 1F being met.
    I don't understand the wording and feel like there's no point in trying to live anymore because if I've no recourse to sorting this issue after fighting for so long, the rest of my life is just going to be barely surviving from day to day and growing debt.
    I can't do it 
    The person from welfare rights who was helping me with the appeal never replies to any of my email when I ask her anything and I also feel she didn't advise me well either (Prob due to being overstretched in her workload) 
    But my sympathy for the WRU situation is not gonna help me decipher the legal jargon or win my case.
    I'm sick of just barely existing.
    Does this mean then that my UT appeal is dead in the water or is there anything left realistically which I can fight for?

  • woodbinewoodbine Community Co-Production Group Posts: 4,393 Disability Gamechanger
    We have an advisor on here called Mike who will hopefully see this and try and help you out, I can't tag him into the thread as he specifically ask that we don't do that, and I have to respect his wishes.
    "Putting a child into care, isn't caring for a child" (T.Rhattigan)
  • woodbinewoodbine Community Co-Production Group Posts: 4,393 Disability Gamechanger
    Hi have you thought about getting a referal to a foodbank for some help with food? No harm in contacting UP although i'm not sure it would make much difference. Could you contact your MP to see if they could help?
    "Putting a child into care, isn't caring for a child" (T.Rhattigan)
  • cat_hugcat_hug Member Posts: 126 Pioneering
    Thanks for replying woodbine. Just found out that the welfare advisor who was helping me hasn't been in the office for months. I got an auto reply saying she would not be in the office until Aug 2020!! Which. Means the reasons I asked for permission to appeal likely didn't get sent properly but I've no way of knowing really since she didn't reply to any of messages.
    Am totally at a loss at what to do or how to go on from here 
  • cat_hugcat_hug Member Posts: 126 Pioneering
    Ps Yes I remember Mike. He's really great with all this stuff. Hope he might be able to advise 🙏 
  • Girl_No1Girl_No1 Member Posts: 98 Courageous
    @cat_hug I've no idea what the letter means, does the out of office message not give telephone contact details for the main Welfare RIghts office?  Can you not ring them for advice? 

    Here, in Scotland, there's usually a duty worker who covers cases of those out of the office/off work for whatever reason. They're the experts so they're probably best to guide you if Mike doesn't see this thread and respond.

  • cat_hugcat_hug Member Posts: 126 Pioneering
    There's a general link to their main office but nobody ever replies.
    Last year when she was going on annual leave she gave me that email contact but got no reply from that either. Its hard enough fighting the appeal but then when you keep hitting a brick wall with the people who are supposedly representing you, you just lose the will to live.
    Its been a long and difficult process every step of the way. From losing lifetime DLA. Denied daily living pip, nearly 18 week wait for mandatory reconsideration decision and everything in between and since.
    The only vague glimmer of hope is the UT letter saying there's the option to ask for appeal to be set aside. They rejected 2 out of 4 reasons of my request for permission to appeal, so hopefully ...maybe.. its not completely dead in the water yet? 
    Got such a severe headache right now I can't think straight or get my head round the terminology. Thank you for taking time to reply though 
  • mikehughescqmikehughescq Member Posts: 6,536 Disability Gamechanger
    Evening all. I think it would help if Scope merged both of your UT threads. Off to bed now but good to see you back @cat_hug and sorry to hear you’ve had such a poor experience with this. I will try and find some time tomorrow or Friday to offer some pointers. 

    Expediting a UT. There’s no explicit provision for this but there’s guidance for first tier expedition so...

    However... I’m not sure where your UT is up to. Any chance you could post up an anonymised version of the decision?
  • cat_hugcat_hug Member Posts: 126 Pioneering
    Hi Mike, good to hear from you too. Apologies, I couldn't find this thread when I posted the 2nd one. The post arrived just after I'd posted this.

    Will post a summary of where its at later today.

    Thank you so much for replying. Hope you are keeping well as possible under these strange times Xx? Xx
  • Tori_ScopeTori_Scope Posts: 4,959

    Scope community team

    I've merged them for you @cat_hug :) 
    Online Community Coordinator, she/her

    Want to give us feedback? Complete our feedback form now.
  • cat_hugcat_hug Member Posts: 126 Pioneering
    Thank you Tori. Appreciate that. Xx
  • cat_hugcat_hug Member Posts: 126 Pioneering
    Hi Mike and everybody,

    ( Sorry, quite lengthy) 

    following on from message about permission to appeal to UT. I'll try to summarise the facts of where I'm at so far:
    These were the reasons submitted to UT for grounds to appeal UT, and permission was not granted by FTT (but I think I recall you saying Mike that this is often the case and then ask the UT after the request has been denied my FTT?) for purposes of the following related to my case, I am 'CH' :-) 

    3. The Judge Fawcett goes on to conclude:

    4. (CH) feels that the Tribunal dismissed the overlap between descriptors 9 and 11, instead seeing the points already awarded under 11(f) as a catch-all. The definition of ‘engage socially’ as set out in paragraph 1 of schedule 1 of the Social Security (Personal Independence Payment) Regulations 2013 confirms that ‘engage socially’ means an ability to:

    (a) Interact with others in a contextually and socially appropriate manner;

    (b) Understand body language; and

    c) Establish relationships

    5. When considering CH's 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. The ability therefore, ‘to engage with people known to her (family and existing friends) or with whom she needs to engage for a specific and limited purpose (health professionals or the tribunal) is insufficient to engage the baseline (zero scoring) descriptor’ .Further, there is no legal basis for limiting the assessment of her ability to engage with others face to face to such engagement as is reasonably necessary. (para12)

    6. 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.

    Heads (a) and (b) are important parts of establishing relationships, but more is required. Relationships vary in duration (from fleeting to life-long), nature (acquaintance, business, friendship, partnership, sexual) and intensity. Head (c) refers to relationships without qualification. I take that to mean that it is concerned with skills relevant to relationships in general rather than with a particular type of relationship. And the focus is on establishing a relationship rather than nurturing or developing one.’ (Paragraphs 13 and 14)

    7. Nowhere in their reasoning does the Tribunal identify any adequate examples of CH's ability to establish new relationships as envisaged by the case law, instead concentrating on those interactions specifically omitted as insufficient by Judge Gray and Judge Jacobs. As the Tribunal failed to correctly apply the relevant case law we submit the Tribunal erred in law and request leave to appeal to the Upper Tribunal.

    8.CH’ appeal has been recorded as refused despite the fact the original decision dated the 04/03/19 has been a materially changed in her favour. Instead of the two year award granted by the Department of Work and Pensions the Tribunal concluded that a five year award was ‘more appropriate’ in light of Mrs Hughes’ medical conditions.

    9. As Judge Hemmingway highlighted in GT v SSWP (PIP) [2019] UKUT 30 (AAC)

    ‘appeals can be pursued, albeit it seems to me that this seems to happen only rarely, even when the sole issue of challenge is the question of the appropriateness of a fixed term award or the length of a fixed term award.’ (Paragraph 19)

    10. We would argue that the incoherence in the First-tier Tribunal’s Decision Notice must render it erroneous in law in line with Judge Wright’s recent decision in DT v Secretary of State for Work and Pensions (PIP): [2020] UKUT 156 (AAC) which held:

    10. On ground one, I am satisfied that the First-tier Tribunal erred in law. The decision notice said that the tribunal confirmed the Secretary of State’s decision under appeal. That was wrong. Had the tribunal confirmed the decision under appeal it would have left in place the award of the standard rate of both components of PIP. Removing any award of PIP, as the tribunal did, was giving a different decision to the decision under appeal and was plainly inconsistent with affirming that decision. No steps have been taken by the First-tier Tribunal to correct the decision notice.

    11. As Upper Tribunal Judge Jacobs stressed in paragraph [9] of SSWP v JL [2018] UKUT 291 (AAC), it is essential that the decision notice is legally coherent. If it is self-contradictory it is not. This is because, per paragraph [15] of R(IB)2/04, it is the decision notice which fixes the legal position as to entitlement to the benefit between the parties to the appeal. On the face of the decision notice in this appeal the Secretary of State could not have known what she was to implement in terms of entitlement to benefit following the appeal. The appellant likewise could not have known what her entitlement was to PIP following her appeal. Such a fundamental incoherence in the First-tier Tribunal’s (uncorrected) decision must render it erroneous in law.

    11. CH would also like to take this opportunity to highlight several procedural irregularities which may also amount to an error in law:

    · Upon entering the hearing Miss Hughes discovered that the Department of Work and Pensions’ (DWP) representative was already present before she and her son had entered.CH has no way of knowing if her case was discussed amongst the panel and DWP representative before she entered the hearing.

    · CH also feels that her son was not able to properly give evidence at the end of the hearing. CH and her son were advised that they had

    run over their allocated time and the clerk informed the panel that the next appellant was already waiting outside. The hearing was then quickly brought to an abrupt end by the Judge. CH feel’s she was rushed out and her son’s evidence wasn’t given enough consideration.


    So, these were the reasons given but I've noticed the welfare rights worker forgot to mention that I also wanted to argue that when considering the Daily living descriptor for 'needs help with budgeting, the FTT had asked questions pertaining to SIMPLE budgeting and notCOMPLEX budgeting. I never said I had had issues with simple budgeting but the questions from the FTT panel pertaining to that descriptor, were definitely about simple budgeting, as I was asked 'Can you count your change from a shop'.

    At the time of the deadline to submit my request to UT, I had been in hospital with a serious kidney infection and sepsis, added to that, the welfare worker was going on annual leave and had handed me over to a colleague in her office. (A person I was never able to contact) In addition, I had tried to send all the docs to the UT via electronic means believing thy had gone through (as told to me by the WRU advisor that they had been submitted on time, only to find out after she was on leave, that they had not. This became apparent when i got an email from the UT informing me that my files had erroneously ended up in the wrong department!! On top of that, I'd been called whilst I was in the hospital that my daughter (who has severe anxiety/Bipolar disorder) had attempted suicide and I had to sign myself out of the hospital (whilst still on 4 IVs myself) to go look after her. Suffice to say, it was a lot of pressure and a lot of adverse things happening all at once, under the cosh of a deadline.


    The UT accepted my reasons for late submission (which I think ended up being a couple of days when I posted the files off a hard copy by special delivery).

    I will upload the letter I got yesterday, and scan it into my computer, but the essence of it says ' copy of the decision of UT refusing permission to appeal (Refusal Decision) and that I cannot appeal the refusal decision

    That the 2 routes of challenge that MAY be open to me are:

    1) Set Aside

    This is an application under Rule 43 of the UT procedure to set aside a refusal decision etc

    or:

    2 Judicial review


    Im just looking at this section 43 Mike, and wonder if paragraph 2 (a) A document relating to the proceedings was not sent by a party or party's representative (Nothing about the budgeting descriptor and I have/had proof that I need help with complex budget as DWP need to take fuel direct from my benefits, I need help from my Housing assoc money matters team re. budgeting, also proof of help from Charis etc.

    I had no representation at my tribunal other than my son (whose evidence was not listened to ) as WRU arent able to be present at hearings and only give you one face-to-face interview for your whole case. The rest is done via paperwork and email/telephone contact, but as I say, my advisor went off the radar the time of my deadline and hasnt been in contact since. Ive tried calling many times too and left messages but never had a reply. The email contact that indicates other workers would pick up any queries has never replied either. So I do feel that representation was poor (not to decry WRU as I know theyre busy and under-resourced, but it would have been better in hindsight to have been listed as having no representation as I couldnt get help elsewhere).


    That aside the UT say: DETERMINATION

     they extend the time for this application for permission to be made.

    Having done so 1 (i) Refuse CH permission to appeal on her first two grounds of appeal

     (ii) give direction on the remaining two grounds in the application for permission to appeal


    REASONS

    I extend the time so as to treat the application for permission to appeal as being made in time of its receipt by the UT on October 1 2020 because I accept that a) CH attempted to make the same application in time by email on 31 July 2020 but that email was not  received at the UTAAC email address and

    b) Once this non-receipt had been identified by CH attempts to clarify matters were also received within a reasonable time and CH resubmitted application for permission to appeal very promptly


    2 4 grounds for appeal were advanced The first two grounds of appeal concern i) whether FTT properly considered daily living descriptor 9d in the  light of Mobility descriptor 1f being met (there is no Pip descriptor 11f) and (ii) whether it materially erred in law in saying the appeal was dismissed when in it in fact extended the period of the award. The remaining two grounds of appeal raise allegations that the presenting officer was already in the hearing room and so may have discussed the the appeal with the FTT in CH absence and that the appeal did not allow CH son to say all that he wished to say by evidence towards the end of the hearing. I observe that the last allegation does not materially identify what materially was left out of the son's evidence because of the alleged hurried nature of the end of the hearing before the FTT hearing. It may therefore lack any arguable merit on that basis, but I will return to consider this last ground once the directions below have been complied with.

    3 i REFUSE permission to appeal on the first two grounds of appeal because neither has a realistic prospect of showing that FTT erred materially in law in the decision it came to on 3 March 2020

    4 The first ground of appeal has no realistic prospect of success essentially for the reasons that judge District judge Watson when refusing permission to appeal on July 1 2020.

    properly read the FTT was not that if Mobility 1f  is met that points can not as a matter of law be automatically awarded under Daily living 9d.

    This is apparent from closing statements of paragraph 56  of its reasons where it found (reasonably on the evidence before it) that as a matter of fact the issues CH had when following a route outside were not due to anxieties about engaging with people.

    Nor is there any arguable case that the tribunal misdirected itself as to the breadth of daily living descriptor 9. 

    it goes on to list 8 points 

    point 5 saying even if an error of law occurred permission shouldn't be given on such a technical ground where the period of the award was not the main issue (or indeed any issue) For those reasons this case differs from the decision relied on of DT


    6 Third and to a lesser extent the fourth ground for appeal raises an allegation about the conduct of the hearing and the fairness of the appeal proceedings before the FTT. It does not appear that this allegation was considered by FTT when it considered an application for application to appeal. In the circumstances, I am not in a position to rule fairly on the 3rd ground until steps outlined have been taken.

    7 that the registrar of UTT write to FTT setting out or highlighting para 11 of FTT who heard this appeal on March 3

    8. I will consider 3rd and 4 grounds for appeal in all likelihood determine them once I have received the above comments.

    (end of UTT decision for now until I properly scan the whole doc)


    What I dont think has been clarified by the WRU was that appeal about the descriptor for social interaction, was not exclusively pertaining to mobility, but social anxiety in general and how that affects my daily. I had no reason to appeal mobility as I was awarded the enhanced for that anyway.

    I also wasn't given chance to explain in my own words how my disabilities impact on my daily living as the hearing was very much geared to the questions asked by the panel (mainly the judge, who to be honest, seemed confrontational/combative) The questions were more like grilling and actually far more intimidating than the Atos interview and that of the HCP.

    The questions were mainly focussed around descriptors the judge wanted to address and not so much about what I wanted to, it felt and also they were closed questions which didn't allow me to comfortably say in my own words.

    In addition, I then had the DWP rep firing questions at me (until the judge realized I think that she shouldn't be doing that) and had to address them via the judge.

    And then when my son came to speak, he was shut down because the hearing had run over and the next person was waiting. The judge actually stopped my hearing to ask the clerk if the next guy was already outside, to which the clerk confirmed he was, so it really did feel as though we were rushed out. So much so that they decided to post their decision as there was no time dor a break and for us to come back in.

    I had no time to think about the questions and answer them because it was such a grilling. I was actually so anxious through the whole hearing and my hands were shaking so much that I spilled my cup of water across the desk and on some of my papers. (I think the disability expert of the panel noticed my anxiety but she was given the least amount of 'air time' to ask how my disabilities impacted on daily living.


    I doubt the judge from the FTT is going to agree that although the DWP was definitely in the building (and in the room) before we got there, that this was untoward. We were actually told this when we arrived (half hour early) that she had been there all morning. Yet she didn't stay for the last hearing of the day after us, as I saw her leave the building when we did.


    In all, Im finding this pretty confusing. The wording about refusing permission to appeal but on the first two points and then wanting clarification about the 3rd and 4th.


    It's been nearly a year since the FTT and since that time, I've had severe kidney issues, sepsis, and another heart procedure. So I'm struggling to recall all the finer points since my tribunal to be honest.

    Mike, do you think this is dead in the water or do I still have a shot?

    Also, with respect to the length of time of the award, again this is anomalous because my initial award states 'for an ongoing period'. It was only after I filed an official letter of complaint about how long my MR was taking ( a complaint that was never addressed) but within a week of writing to complain, my application for Pip was refused and my award suddenly went from 'an ongoing period' to 2 years. Which is another issue I felt that  WRU did not address. (Which might have some bearing on Judge's argument that DT case is different to mine? (Im clutching at straws I know but if it gets me permission to be heard, I'll take a field of straw!!) :-)

    I know this is a lot to take on but again, I'm under the cosh and just can't let this slide. Without this benefit, I just can't survive, and it's only the prospect of eventually getting any justice that is keeping me going.

    If that hope is lost, so am I.


    I've no representation and haven't really had any from the get-go. Between my original advocate 3 years ago going on maternity and the WRU since it's been catastrophic.


    My daughter bless her, is paying for a consult with a local solicitor (£60 for a fact-finding consult with a lawyer who specialises in these cases. But truth is, there's no way she or I can afford to pay any legal fees as even £60 would be a big chunk out of my weekly income (income-related ESA), and my daughter isn't earning big bucks either, but Im desperate.


    ANY suggestions or advice at all would be welcome Mike (or anyone ). They've given me 28 days to ask for set aside but only 16 days for Judicial review (I don't really know what that'd entail and it says you have to pay, which is going to make it hard as Id need to borrow money I realistically can't repay unless/until my disability benefits get reinstated).


    Thanks again in advance. Sorry to be a pain :-o 





  • cat_hugcat_hug Member Posts: 126 Pioneering
    Sorry this is so long. I've not been able to scan in the UT full letter as I had some kind of cardiac episode yesterday evening and my son called. 111 who called ambulance. Turned out I hadn't had a heart attack...it was an anxiety attack.
    They've referred me to local community mental health service.

    Got to say WYAS were amazing. They spent a good hour with me and didn't want to cart me off to A and E (neither did I) but took the time to do  ecg trace at my home and make call to other agencies etc.

    Finally, when I went to sleep later. Woke again coughing and choking and unable to breathe. But now that I know its stress and not my ticker, its a bit easier to make sense of it.

    Anyway, thats why I've not been able to scan doc.

    Thanks again in advance to anyone who might have advice. Hope everyone is keeping OK Xx
  • mikehughescqmikehughescq Member Posts: 6,536 Disability Gamechanger
    Bear with me. Balancing work and personal stuff is quite difficult at present. Anything I try to schedule goes out the window as soon as I plan it but I am here and will try to respond as soon as. 
  • cat_hugcat_hug Member Posts: 126 Pioneering
    Thanks Mike, I understand. Appreciate you replying. Please don't put yourself under pressure over this. Xx
  • mikehughescqmikehughescq Member Posts: 6,536 Disability Gamechanger
    edited February 23
    Okay, so apologies for the delay. Won’t bore you with the details and I’m going to keep this as short as I can (which is not very). It’s very hard to judge from extracts but my reading of this is as follows and I think it is good news:

    - you didn’t get what you needed from the FTT.
    - applied to your local HMCTS for leave to appeal but were refused. Not unusual and I recall predicting it. 
    - then applied late for leave to appeal direct to the UT and were granted an extension to do exactly that.
    - the 1st 2 grounds of your UT appeal have been dismissed. 
    - grounds 3 or 4 remain alive but 4 is on life support. They’re awaiting a submission from your tribunal judge as to what happened with ground 3 i.e. was the DWP PO in the room when you entered. 

    In other words your UT appeal is ongoing. Whilst grounds 1 and 2 have fallen, grounds 3 and 4 have yet to be decided and won’t be until your local judge responds. 

    So, some other comments:

    1 - Forget about the argument around 1f versus 9d. Firstly the UT have declared it dead in the water so it’s realistically at an end and all debate is moot. Secondly, my view is it was always dead in the water. The plain English reading is simply that you can’t on the one hand score points for needing to go out with another person present and at the same time score points for being unable to engage with anyone at all. If you’ve gone out with another person then you’ve engaged. I think the UT reading of this is likely correct but my view is irrelevant. That aspect of your case has gone. Yes you could in theory go for a JR or a set aside on the refusal of grounds 1 and 2. To do so is vanishingly rare and I wonder how favourably it would be viewed given that you’ve not yet exhausted all remedies given that 3 and 4 are alive. 

    2 - As you’re engaged with another service I am limited in what I can say and rightly so. Staff absences happen. It would be good practise to contact a persons caseload and either reallocate them or at least offer them choices but there are many reasons why that may not be practical or possible. In my own workplace demand is up between 70 and 85% but staff are off sick; desperate for a break and have many practical issues if working from home and unable to access the office. We have the IT to be able to easily view staff caseloads whilst at home. That may not be possible elsewhere. As your appeal appears to be very much alive you may want to continue with your representative so I suggest your choices are to persist with going back to them through their duty system or lodge a complaint. Both are really means of getting their attention as they simply not have had the means to join the dots and realise you remain their client. 

    Bear in mind that at this stage, where you are essentially sat on your hands awaiting a decision on leave to appeal, they might legitimately argue you don’t need a rep. until and if you get leave. At that point further submissions will need to be made. Right now, it’s a judgement call. 

    3 - FWIW I like ground 3. I’ve had cases like it and won. Doesn’t mean you will but it at least has legs. It doesn’t matter what the PO was doing there. What matters is the appearance of fairness. However, it’s important that the UT don’t just write to the judge. They should also identify the clerk and two other panel members and ask them for statements too as to their recall as to whether the PO was already present; whether that was unusual (it certainly ought to be. It should never happen in theory) and what took place. I’ve had judges deny events took place to cover their backs only to be undone by panel members giving a different version of events. If you do anything at this point in time I’d suggest it’s writing to ask that they do that. They’re not obliged but you’ve nothing to lose from asking. 

    4 - could you ask them to expedite this? Yes you could and I’m not sure I’d want to be the person to stop you, but, I’m not sure how they could do that at present. The people they’re liaising with could be working from home, shielding, acting as carers, home-schooling etc. and may not even have immediate access to the relevant paperwork. UT wheels do turn unacceptably slowly but, in this instance, I think you want them to do the stuff they’re currently doing and, whilst they’ll likely be sympathetic to such a request, I don’t see how they can speed things up right now. If they grant leave to appeal that the landscape may well be different but, right now... well it’s your call but at present, to me, on the facts as I understand them, your UT case is early stages but very much alive. You may just want the wheels of justice to keep turning slowly but carefully. 
  • cat_hugcat_hug Member Posts: 126 Pioneering
    Hi Mike 
    Thanks for the reply. Firstly, I don't think there's anyone on this but myself. Thats evidenced by the complete lack of communication from wru since just before the deadline to submit request to appeal to UT

    Honestly, I could you a possible dozen  or so emails from myself with queries/submissions/updates of any correspondence from utt etc with literally zero response bk. Ditto voice mails and calls. The auto response from my latest email  saying not bk in office until August of last year, tells me she had either left or isn't taking my case beyond ftt.

    I've lost confidence anyway as I feel my wishes were not taken into consideration anyway

    (ie descriptors I wanted to appeal, I was told I'd be wasting my time)

    yet one such descriptor which I fought  myself. Was the only one that I gained additional points at ftt , albeit  sadly leaving me still one point short of getting daily living.

    SO, if I need to contact wru to cut them loose officially, so be it. I feel I'd do better on my own getting advice from people like you and Alex from Buds 

    I'm just a bit confused as where to go from here now. 

    Although the DWP presenting officer was there way before we arrived  and was asking me direct questions ( In between getting grilled by the judge!) I noted the po left immediately my case had been heard and she didn't stay for the final days hearing.

    My case was cut short due to the net guy already waiting outside and the judge actually  asked the clerk in my hearing, is the next person here already? To which she was told. Yes he's outside the door.

    This gave my son no time to present the things he wanted to say as evidence and we were rushed out.

    So the last two posts pertaining to the ut wanting to know what evidence my judge wanted to present

    And also to write to the FTT to fact find out he allegations the po being there.

    I'm not confident that they will admit  any dny impropriety there, although it can't be denied  she had been present all morning prior to my 230 hearing and left immediately after,  not staying for the last case of the case. Which could give the perception of impropriety  (but I don't know)

    So how do I go forward Mike? Whats my best chance here? And is there possibility of sending docs that were not included or looked at at the time? Evidrnce not considered either could have been relevant? Also the fact that the budgeting descriptor had been erroneously looked st (answering needs simple budgeting help, not complex etc?) 
    ThT extra point would make or break the who case

    Trying to focus any poditives if there are any. Any suggestions or ideas how I take this  forward? I'm running short of time with the 38 day deadline.

    Thanks again in advance  Mike. Or anyone. Cat Xx



  • mikehughescqmikehughescq Member Posts: 6,536 Disability Gamechanger
    Right now the documents issue has largely gone. You’ve not got leave on that point so it’s dead. You could certainly present the evidence you feel was missed but that risks the UT saying it was irrelevant and dismissing it. I would say that is a concern as one of your arguments for leave (re: the 2 descriptors) appeared to be in my view misguided.  Up to you but I would focus solely on 3. 

    I do need to clarify though. Are you saying the PO was already in the tribunal room and sat down as you entered or just at the venue? Just at the venue is fine. In the room already following the previous case absolutely is not. 

    Also, no problem with them leaving straight after your case. They get requested for some cases but rarely all and they also pick and choose. One of our POs basically turned up Fridays and did one a.m. and one p.m. randomly. He chose carefully; finished his crossword and was always on his way home by 3:30pm. 

    I can see your stress wanting to drive this forward but apart from the letter I’ve suggested I’d let this run it’s course.
  • cat_hugcat_hug Member Posts: 126 Pioneering
    The po had been in the room for all the cases before  me that morning. I not sure she was in the room when we walked in but we were told she was already there when we arrived. 
    I remember thinking it made me uncomfortable knowing she'd been in the room all morning prior to us.

    That said, if that's my only chance of getting it set aside. I'd say there's prob no hope.

    I'm guessing not having time for my son to allow my son to give evidence or the fact we were rushed out ad the next person was waiting wouldn't  be seen  as a reason either, since they're not likely to admit we were rushed on.

    So am I right in thinking this pretty much dead in the water Mike?
    THE fact that key evidence was not given the time of day, the fact my award stated it was for an ongoing period, but they were discussing it as though the length of award was just 2 years. And the judge changed it to 5 years, slso awarded an additional 2 points on the cooking descriptor (but my appeal was deemed as me losing it).

    It just felt there were key pieces of evidence that were ignored or given no time to address due to having to rush the end for the next guy coming in.

    Also the sociL interaction descriptor not bring applied because the judge accepted the hcp assessment that I didn't appear anxious.

    I don't understand what the point of it all is if you aren't allowed to explain in your own words how social situations affect you, if the panel just accept  atos report that you didn't appear anxious ( even when you're shaking so badly,  you spill a cup of water sll over the tribunal dedk)

    Sorry, I'm not ranting at you Mike. I'm just feeling like what is the point in anything or fighting for your life when its all stacked against you and although they admit  to accepting all the medical evidence, a judge says she thinks the client may have possibly exaggerated the symptoms? HOW DO you exaggerate the effects a a brain haemorrhage and 2 strokes and heart problems and narcolepsy? Are you supposed to be on the brink of death  or maybe get s more serious burn or a deeper cut or worse head injury before you meet the thresh hold as qualifying for daily living?
    I honestly think it would be more humane to offer people like me euthanasia, because aside from the humiliation of fighting to just live at subsistence, its a more slow and painful death and I'm honestly just done.
    Sorry. Just feel helpless and hopeless and all out of answers or fight.

    Appreciate you taking time to go through this mountain of rubbish and giving it your input.  

    Thanks for your honesty too that its not got a cats chance in hell really. 
    Good luck everyone  else with your battles and I pray you fair  better and meet more humane people than I seem to have.

    Think I need to hide in a dark room and sleep  for as long ad possible 
    Sorry for the rant. Just devastated  all the efforts have been for nothing and dreading what will come next 
  • mikehughescqmikehughescq Member Posts: 6,536 Disability Gamechanger
    You would hopefully remember whether the PO was in the room before you entered, simply because the guidance is that they should be last to enter and first to leave. Therefore you would be introduced to them by a clerk before you entered the room as a matter of routine and then feel awkward as they insisted on walking behind you. If you don’t remember that intro. and walking in with them then check with your son but chances are that if you don’t remember it then it didn’t happen. On this point your case is very much alive as no decision on leave will be made until the UT judge gets a response from the FTT judge. As I’ve said, you’ve the opportunity now to suggest that enquiry goes wider. Take that opportunity. For example, if your son remembers this clearer than you then get a statement in from him saying so.

    As regards being rushed out, it is legitimate cause for concern but hard to prove. The main thing is to emphasise that you were not allowed to conclude your case so that you felt you’d been fully heard. I would not concentrate on the minutiae of exactly what would have been said. The UT are generally concerned about errors of law rather than hearing evidence or determining facts anew. Whilst this is not usually a winning argument when run as sole grounds it is likely to cause a UT judge some discomfort when looked at with ground 3 and thus may play a part in swaying them towards a grant of leave.

    I think the danger here is that part of you wants the UT to hear your other evidence and act like a FTT and decide in your favour. They’re not going to do that and you won’t be able to make them. Right now your case is very much alive though. You are simply awaiting a decision on grounds 3 and 4. Only if both are refused will your case effectively be over.
  • cat_hugcat_hug Member Posts: 126 Pioneering
    Thanks Mike. I asked my son if he remembered whether the po was already in the room. He doesn't recall either.
    The thing I do recall is us waiting in a room before we the hearing and when we were called and seated, the po lady being there because I wasn't sure of the seating arrangements and we shuffled our chairs and were either seated or being about to sit when she seemed to be suddenly there and we were told then who she was by the judge, who also introduced the other panel members at that time to. I think they were already in the room and sat opposite us. Three in all. A disability specialist,  a gp and the judge.
    We had been warned on entering reception and signing in that a dwp person was already present and had been all day prior to us, sitting in on other hearings. I don't think introductions were made until we were in the room though.
  • cat_hugcat_hug Member Posts: 126 Pioneering
    The thing the ut judge did say was that he was not aware of the evidence my son wanted to say.
    My son was shut down mid sentence at the end of the hearing despite being told he would have the chance to speak at the end.
    It became uncomfortable however to know that another person was waiting his hearing and already waiting for his case to be heard. The exchange between the judge and clerk made it clear  they were pushed for for time and that ordinary, we would  be asked to wait outside whilst the panel discussed the hearing and then usually we would be called back in and given the outcome there and then.
    We were told that owing to the hearing running overtime, this wasn't possible and a written decision would be sent by noise a day or so later.
    We got the outcome by post two days later
  • cat_hugcat_hug Member Posts: 126 Pioneering
    So going forward. I believe the ut judge want to write to the ftt to find out what happened and speak with that panel. Possible the clerk and maybe the security guy who booked us IN? I CANT REALLY see the panel admitting to any improperly  whether or not occurred. O just recall feeling feeling that that something seemed off in the whole procedure and the presence of the po being around long before our case heard and her staying right until we were leaving zzz,and exiting the same to time as my son and zo.
  • mikehughescqmikehughescq Member Posts: 6,536 Disability Gamechanger
    edited February 23
    Okay, being honest, and it is hard to judge from the above, but this sounds like nothing out of the ordinary may have happened at all. It sounds like you were in the waiting area; taken through to the tribunal room and the PO then joined you.

    If
    that's correct then there's no error of law there. The error would be "breach of natural justice" but would only be on the table if the PO was in the actual tribunal room before you entered

    Everything else you describe would be the norm. PO turns up whenever and sits in their own room until each hearing starts. You'll be let know they're there but won't be introduced until you're in the hearing. There is only a problem if they try to talk to you in the waiting room about the case before hand or are in the tribunal room before you. 

    You go in and the tribunal are already there. Sometimes people have to budge up to accommodate a PO as they're not always there and some rooms are less than perfect. There's no duty as such to hear all the possible evidence. Just a general principle that a tribunal need to have heard enough to be able to make a decision. Cutting people short is a balancing act. You have no choice but to balance the needs of the parties in front of you with the needs of those waiting to come in. Getting that wrong is not automatically an error of law. It may still be but it really depends on the specifics. 

    Absolutely don't think you should get into the evidence your son would have given unless the UT judge explicitly requests you do so. Any unique insights should have been in claim packs; MRs and appeal forms. Unless he was going to say something absolutely unique and pivotal, which in my experience would be rare, I would leave well alone at this point. It is very easy, but often wrong, to focus on something that didn't happen and obsess on the idea that "if only x had been able to say y then z would have happened." Almost never the case. Again, whilst I don't know what he would have said and can't guess what I do know is that, in my experience, a relative speaking at a FTT more often than not damages a case rather than helps it. Your assumption on what would have happened could be completely wrong and you need to pause and reflect on that before leaping in and possible ending your own case. 

    If you throw that all at a UT judge and allow them to conclude that it was all very nice but really just a reinforcement or duplication of other stuff then you're allowing that UT judge to dismiss ground 4. Far better to do as I suggested earlier and leave the weighing of any evidence to a FTT if you can get leave at UT and then win at UT to get back to FTT. 

    If your son's evidence was pivotal and unique and would have unequivocally changed the outcome it should have been in a written submission and should have led on the day. 

    You absolutely cannot decide in advance how a panel will respond to an issue like this. Easy though it is for me to say there is nothing to be gained from second guessing.

    My experience has been very much the opposite so trying to second guess and talk your own case down is really to do with your perceptions rather than the reality. Panel judges are hugely variable but you can guarantee that if they try to be dishonest in any way then other panel members will absolutely grass them up. I've had that happens multiple times over the years. I've had judges deny horrendous scenarios only to have their two panel members absolutely confirm my version of events. You cannot assume anything so stop trying. 

    So, is your case "dead in the water"? No, it is being investigated and that's a positive.

    At this stage there is really nothing to do but let that take its course. I'm going to stop there else we go round in circles. Your case is alive and there's no way of guessing or influencing what happens next other than the suggestion I made earlier about a letter asking them to contact more than the judge. 
  • cat_hugcat_hug Member Posts: 126 Pioneering
    Thanks zmike again. Will try absorb what you've said when I've rested a bit . My left eye has swollen and trouble seeing text tight now.
    Had to cancel kidney scan too cos cos can't face it
  • cat_hugcat_hug Member Posts: 126 Pioneering
    Mike. I've got to be realistically here. I'm simply waiting your time and mine ( though my time is worth Jack **** these datsz)
    There's no chance of we winning this damn appeal and I've come to realise its futile its futil even investing any f effort. Leadt of yours. That vcould be better spent helping people who actually deserve help and effort. 
    Guess o had too high opinion of myself thinking my life could be worth fighting to make effort to grip others. But I realise I wad wrong and any value I may have had as a useful human human being to make any difference to lives of others. Wad just my own ego.
    Time yo let go and let realise maybe really that these mercenary draconian measures perhaps do serve a function in sorting wheat from the chaff.

    I don't think my existence serves any useful purpose to the wolf except for maybe two anaxong to amazing kids who will make an impact on the world.

    No point flogging a deaf a horse any horse anymore tight now right,? Dll I'm doing if drawing resources that could be setter Spencer on helping on people eore destbing and more deserving.

    So just wanted yo thank you for for taking time to try help in a something that was wasn't worthy or deserving. And to say please don't give up on others who do have a real chance and who could make a reslse chance in paying it paying it forward.

    You are truly a warrior for the people and a who heal of hood inside that could spread rcponentionengionally.

    Don't lose sight of what you believe in. You make s huge difference to sp many.
    Thank you so much but its time yo carefully choose yr battles and cut through the dead roof cases like me

    Thank you. God bless and good luck Mike hughes
    Xxx
  • Adrian_ScopeAdrian_Scope Testing team Posts: 7,997

    Scope community team

    Hi @cat_hug, I've sent you an email and we'd really like for you to make contact with us if possible.
    Senior Community Partner
    Scope
  • cat_hugcat_hug Member Posts: 126 Pioneering
    Hi Mike, Adrian and all the amazing people here. I apologise  profusely for any worry my message caused.
    You wouldn't have to be an acclaimed psychic to know  I was feeling a bit despondent.

    Have just re read my last post and realised how it must have sounded. Feel pretty embarrassed about the way I (didnt) handle perceived terrible news. Genuinely am sorry. 

    Not an excuse, but I suppose maybe a reason (Which you deserve an explanation), it seemed like my world had literally ended and all I was seeing was negatives. 

    I've never to my recollection, experienced full on panic/anxiety attacks, but after getting that letter, it felt like I was trying to hold back tsunamis.  Theyd come in waves and for periods of time I could stop them from consuming me.
    That is, until I couldn't. Narcolepsy and sleep let it in and I woke to chest pains that were totally different to the usual heart discomforts of Angina and tachycardia arrhythmia. My kids (who are home during lockdown) called 111 who sent an ambulance to check I wasn't about to pop my sketchers. 
    It happened again but obviously no Ambo involved that time.
    My memory seems to have done a runner as my timeline from then on is a bit skewed.

    I vaguely recall having a little accident with the bathroom door, but didn't really think much on it, as me me and head blows are commonplace, between narcolepsy and dizzy spells etc.
    My daughter mentioned a few times, mum, why are you losing yr balance so much?

    The weird thing is, I was getting headaches but again dismissed them in light of history of strokes and brain aneurysm. Then I started with eye trouble and wasn't focusing too well. Just my left eye. Again no big deal. 

    I just remember feeling overwhelmingly exhausted, headaches and swollen eye.

    I have two full days with hardly any recollection. My kids told me a police person came to check I was OK. I have no memory at all of this nor of speaking with her, nor of any details of things talked about.

    My son was due to get train to zlondon but when I woke up, I asked my daughter where her brother was as I was worried he'd miss his train after his shift ended.
    She told me he had left the previous day and that he felt bad leaving when I was not well and a police lady was there for welfare check.

    Totally astounded that I've no recall of any of this. Its like nearly two days have been wiped from my memory.

    I'm not a drinker, so can't blame that. Not a drug abuser, other than sleeping a marathon and somehow having a chat with both police and my kids, its a total blank.
    Which is why I hadn't been back online (not to my knowledge).

    I can only apologise from my heart for any worry caused.

    Meantime, the eye swelling has worsened along with my balance. Took a tumble headfirst this morning (luckily in to brambles  and not concrete) so no fear of knocking any sense into my skull!

    Daughter managed a miracle Z(without telling me until it was done, cheeky young whippersnapper) and got me a gp video appt.

    I've been given 2000mg day antibiotics for a week. In case its deep tissue infection as I'm getting a one sided chubby cheek and half a fat nose where the swelling spreading.
    There's a small comfort in having a potential physical reason for my lost two days but who knows?

    Again, sorry for war and peace. Remember, you don't need to really worry about me cos as a Cat, I started out with 9 lives but till have 3 or 4 left .

    Mike. I will follow your advice and wait and see and pray in hope that one of the panel will admit to the unfairness of my hearing.

    I'm guessing that all or any other routes are closed if ut reject me? No judicial review or supreme court routes?

    Before lockdown, there was a journalist who was interested in doing an article about my experiences, a guy from the Canary. I'm not keen on the idea of having my mug or I.d plastered over the news, but if it potentially helps. Is it worth considering do you think? Although it kind of feels like saying 'woe is me' to the world. That said, those three words are applicable to far too many of us in my humble opinion.

    What are your thoughts everybody? If you've managed to read up to here without zoning out or falling asleep, I salute you 👏 👍 

    Thank you once again for all the advice, caring and support. Big hug Cat Xx
  • Ross_ScopeRoss_Scope Posts: 4,097

    Scope community team

    edited February 27
    Hi @cat_hug

    Thanks for giving us an update, I'm glad to hear you're alright and safe. 

    Sorry to hear about what you've had to go through, sounds like it's been a rough few days. I'm glad your cheeky daughter was able to get the video appointment, what a lovely thing for her to do for you :) I hope the treatment helps. 

    There's no need to apologise and be embarrassed, you were obviously struggling at the time of your post and that's completely understandable. I hope you found our email and the advice on this page helpful, and please note you can always give Scope's helpline a call if you want to talk through things further with one of the friendly team.

    Regarding the journalist, there's no right or wrong answer here really, it's all about what you are comfortable doing. If you are happy to share your experience then it'll be great, otherwise if you don't feel comfortable doing that then there's no problem.


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