Taking them to Court, do i still get paid while i do so

mysterdee

i got Standard rate n thats it.

They disregarded all my evidence , basically ignored it all. you know the usual stuff.

but they gave me Standard rate and 11 points, but didnt give me a point for cooking , yet iv only got 1 hand and the other is getting worse too.

Anyway, im going to take them to court. Will i still get my Standard rate whilst i do???

MarkM88

If you have an active award and you decide to pursue it then yes you will get paid still. 

Your first step is a mandatory reconsideration. 

mysterdee

ok sweet, so nothin to loose right, whats chances of them overturning it at MR though...

woodbine

Around 40% of MR's lead to a new decision 

calcotti

And if MR doesn’t get you what you believe is appropriate you can then appeal to the tribunal service.

incidentally, you will not be taking the DWP to court.

At MR stage a different person at the DWP will review the claim and decision. They will either confirm or change the decision.

The tribunal is independent from DWP but is not a court. It will make a decision in place of DWP.

[Deleted User]

Mysterdee, I'm new to this forum and due to my condition, I don't keep up with any forum past claims. But during mandatory reconsideration, which is basically as much a guess as which way the wind will be blowing. 

If you are only a single point away and it is due to a missing limb. Do research as to what other people with a single hand, especially if you have other issues too with the remaining hand. Bring it all to bear. If you fail to have enough strength to hold a pan properly and can drop it. Then it becomes unsafe if you are carrying hot food. Even if this has come from use of a microwave. It being the 'safe' way of cooking. 

If you are likely to twist your wrist due to weakness and you have done so in the past and needed therapy or burnt yourself. Use that. Find all you can which points to your case not just being a part of Activity 1 that the decision maker has seen a dozen times that day. 

If you can produce a statement from a GP, someone who assists you or even yourself. Don't use the most basic wording. They want you to be bland. Add to it the cause of issue, how it truly affects you and even if it is not there all the time, remember if you have a weakening and it can end up resulting in a dangerous situation with a potential for real harm. State it clearly. Paint the picture for them. The claims process is one of the most heartless things you will go through. But remember what you put now will get through to the tribunal and may seal it well before then. 

GP support letters are an absolute must. My 'own' evidence, and I have plenty, has always been ignored. Only for incapacity benefit many years ago did I not have major issues. So speak to your GP. Pay if you have to as this is an ongoing award and the extra money from standard to advance will more than pay for that letter of support. You then keep each letter for next time and also make note of the reasoning they used now to firstly deny enhanced and that used by the tribunal or mandatory reconsideration to change it to enhanced. Throw nothing. But if it doesn't help you, don't submit it. There is one other person you need to speak to and point out to them any over the top unreasonableness you see in zero points on Preparing a meal activity 1. Your MP. Suggest to him that issues you have are at least sufficient to gain 1 point. You want this to end now and not in 10 long months at a tribunal which, to me, sounds harsh for you to face. 

Lastly, I know you may not think of this. But each point you have been awarded is there for a reason. With eleven maybe just to say, 'we have looked but you ain't getting enhanced. Now go away.' But you have those points for a reason. Have you gained points for washing or dressing and this is down to a reasonable viewpoint on you only having one hand. Are they applying it in one place but not applying the same consideration to Preparing Food. 

There is also the 'reliability' criteria. This includes safely and repeatedly. Are you exhausted so much by making breakfast, that you can't be bothered or able to make lunch or even tea. One meal a day is not normal. But you also have the time aspect. If being one handed causes you more than twice as long as a non disabled person you can show it is not achievable as a task on the zero point score they have given you. 

There was an old programme. Robin's Nest. It had a one handed dish washer for the restaurant in question. Watching him wash and dry dishes was bad enough, let alone place him into situations with boiling hot liquids. Use everything and remember to paint a picture for a decision maker who is completely fed up by the time he sees yours.

Good luck.

calcotti

dulede said:  GP support letters are an absolute must. .. Pay if you have to as 

Completely disagree with this. GPs are rarely well placed to know how an illness or disability affects you.

Nor is your MP.

[Deleted User]

Mysterdee, just wanted to be crystal on one point I just made. With a system which is designed, now at least to see you fail by treating you just well enough, to be ignored by watchdogs and ombudsmen. You need to be looking at what they will do. They will look to conditions causing functional restrictions and their variability. You can't lie but you also don't appear more capable than you are.

For instance, If you often lie asleep on the side with 'good hand' and you end up with pins and needles or other nerve damage. Especially if you have evidence of it. If this can cause weakening and the task you are doing. Remember, they don't count as cooking, the time you took preparing vegetables or filling cold pots. But due to the nature of things, they have to consider hot liquids and foods. If there is anything at all which predisposes you to a heightened risk, in comparison to another person without your situation, and especially if that risk can be seen as being a risk of substantial harm. Oil burns for instance. If you have ever dropped a pan, especially oil and then fallen on the liquid. You automatically have a more difficult time regaining your feet. None of these I'm saying to use. But does anything like this apply. Especially if it has been recorded, GP or perhaps it was A&E and it was notified to GP practice. Then this has to be taken into account. But bring this to the attention of your MP first and ask if they can bring this valuable point to the attention of the DWP. The decision maker doesn't budge from the original decision too often so put the ball in your court. 

The need for risk to be over a set period of days is more difficult for them to go on if the risks to you can be proven to be more severe. Severity reduces the regularity of the risk to be there. So the legislation says at least. 

[Deleted User]

Calcotti, never did I say GPs or MPs are there to know this. But a condition will have a series of problems associated with it. If some of those can be applied to Mysterdee's case then the legislation needs to be taken into account. 

You can completely disagree but I have only ever won my claims with GP notes. Never without. 

MPs can put pressure on the DWP to apply the law correctly. 

You can disagree with what a GP may or may not know but there is evidence, see Paul Gray's Second Personal Independence Review, to suggest that firstly the Claimant Questionnaire needs to be seen as credible and not simply dismissed. Mine always has been. He states that there will likely be verifiable additional evidence but the claimant questionnaire is the start. The onus is on the claimant to provide evidence of functional limitation. It is not necessarily the case that medical evidence is correct in this circumstance. But would you sooner he offer no argument to the DWP other than what he has already said and been refused on. 

Why has he got 11 points? What did he get them for. Without Mysterdee providing more information regarding other unstated issues, I would say they are points awarded for functional issues due to his missing hand. The MP can be brought into the issue to ask that the functional issues to do with other tasks are also applied within the law to activity 1. 

He is open to listen to and do whatever he wishes. But the forums are well aware of the need for medical evidence, even within a functional framework. 

[Deleted User]

Just to add. It will take him a phone call and a bit of writing to an MP. If Mysterdee has nothing of substance to say, then the MP will tell him so and direct him to Citizen's Advice and the like. But if he does have something of substance, remember we are talking of 1 point on a descriptor you would expect some difficult on with a single hand and worsening of the remaining hand. 

If the MP can intervene it may prevent the cost and psychiatric torment which is the wait for Tribunal. 

calcotti

I think it very unlikely that the absence of a hand is in dispute and therefore medical evidence to confirm it is adds nothing to the case.

Emphasising the difficulties experienced is of course essential but the claimant can do that themselves or seek assistance from a welfare rights adviser.

if there is a history of accidents/burns or whatever requiring medical attention a copy of the summary medical record available from the GP will likely evidence this without paying a GP for a letter.

[Deleted User]

calcotti said:

dulede said:  GP support letters are an absolute must. .. Pay if you have to as 

Completely disagree with this. GPs are rarely well placed to know how an illness or disability affects you.

Nor is your MP.

If I had done nothing in both respects I would have never won a claim.

Failed IB - won
Failed DLA - won
Failed ESA - won
Failed PIP - won

None without GP letter. To suggest the GP note can offer nothing may be folly regardless of your own conclusions. I tried to go through PIP from DLA migration with only old support letters. I failed and then won as soon as I got my new GP support letter for mandatory reconsideration. Carried on to Tribunal and I moved again up from standard to enhanced daily living. None of this I got without a simple GP's support letter. 

Individualised responses the DWP needs and not a one size fits all.

[Deleted User]

I can't win this one. You carry on. Ignore legislation and the requirement of the DWP to apply it fairly. My intent is to help Mysterdee, not add to your millionth post.

[Deleted User]

Mysterdee, ignore all I say if you like and go with Calcotti. But with one hand are you really capable of making a simple meal unaided. 

Do you have problems peeling food, opening packets, opening tins. Food tends to come in packets at least nowadays and even if all you eat comes from your back garden. That is already well packed and needs peeling. How do you hold or keep still items to peel? 

Does weakness in remaining hand make turning taps for water difficult. Do you have extra length taps or another adaptation. 

B gives you an award of 2 points and with the other 11 the enhanced award. 

Does A or B apply. Consider your situation compared to your non disabled partner, brother, sister. What makes you capable of making this meal. It is a theoretical meal. In your case it is not a mental issue but you do have a disability which you currently have 11 points for. 

Do you really not have any issues with preparing and cooking a meal. Possible but doubtful. There is a chef on TV who lost his hand. Has a fake hand but he still uses that as an aid in helping him cook. How do you really cope with this most basic task?

A: Can prepare and cook a simple meal unaided. 0 points

B: Needs to use an aid or appliance to be able to either prepare or cook a simple meal. 2 points

Consider all aspects of how you do it. Especially think of problems that have occurred due to your disability. 

Good luck.

[Deleted User]

calcotti said:

I think it very unlikely that the absence of a hand is in dispute and therefore medical evidence to confirm it is adds nothing to the case.

Emphasising the difficulties experienced is of course essential but the claimant can do that themselves or seek assistance from a welfare rights adviser.

if there is a history of accidents/burns or whatever requiring medical attention a copy of the summary medical record available from the GP will likely evidence this without paying a GP for a letter.

Mysterdee, Calcotti is correct in regard to a GP letter. Unless you believe a letter offers greater clarity than a GP's report. Go and get the report itself. Do not rely on the way the DWP does this though, if they bother to at all. Speak to your GP and see if he has any insight into your condition you and your claim form missed. 

So, Calcotti may have simply been aiming to save you wasted money. In my own view it isn't a waste but that is your choice. 

But a query to your MP as to how the DWP may be misapplying the law is very much in the realm of the MP. This is free to do and within your rights to ask. Your MP may refuse but mine has done exactly this for me in the past. Where welfare rights groups such as Citizen's Advice told me to simply give up. I'd have nothing. Instead I have 12 points currently. 

All the decisions you make are your own as is the viewpoints held by any member of a forum. Myself and Calcotti included. He may believe a GP letter of support or MP getting involved does nothing. Your job is to provide evidence based on probabilities not the criminal equivalent of 'beyond a reasonable doubt'. Use all you can.

Ross_Alumni

Plenty of varying points of view here and it's good to see such detailed explanations for your viewpoints as ever. Of course, in the end the ultimate decision of whether a GP or an MP becomes involved lies with the claimant and I'm sure that @mysterdee will find the advice here helpful in informing their way forward.

As ever, debate is welcomed and disagreements are bound to happen over a subject like this, but I'd just like to give a friendly reminder to ensure that tone remains considerate, and respectful of the opinions of fellow community members.

Ross_Alumni

Username_removed said:

It’s an interesting trend isn’t it when 75% of my posts are now followed by a post from a moderator. 

I doubt that the figure is that high, but I understand your point that you feel as though it happens regularly and I'm sorry that you feel that way. Please correct me if I'm wrong, but I hope you don't think my comment was directed at yourself solely, I was addressing the discussion in general. 

Thank you

[Deleted User]

Username_removed said:

Finally I’m afraid I can’t let go this ill-informed dreadful assertion.

dulede said:

Throw nothing. But if it doesn't help you, don't submit it.

Of course if you’re dumb enough to follow such poor advice and put your medical records in then your attempt to suppress evidence will come to light anyway. This was acceptable practice in the late 1980s but nowadays your case will be picked apart on the back of it.

Who said to suppress information. I said:

'You then keep each letter for next time and also make note of the reasoning they used now to firstly deny enhanced and that used by the tribunal or mandatory reconsideration to change it to enhanced. Throw nothing. But if it doesn't help you, don't submit it.' 

If it doesn't add to your case don't include it. That is not the same as deliberately avoiding negatives or to lie. This would go against the declarations anyway. Do you believe we are not in a battle with a DWP intent on meeting a pledge of bringing down welfare costs?

If my claims have moved from zero points to enhanced through the tribunal there must be something wrong. Are they applying the law correctly. I would say not. We are talking in this particular case of 1 point. Where exactly, based on his already awarded 11 points and only the stated issue of a missing hand, have these other points come from.

Does he lack strength to clean himself at toilet? Where else is he getting his points?

It is also clear at this point he is looking towards Mandatory Reconsideration. The issue is to keep all stuff and to use what is necessarily going to help your case. Now and if necessary in future claims. If one letter mentions cartilage loss at the wrist in his remaining good hand, then this is a potential for sudden weakness. If his other letters say nothing of the sort. Don't submit them. The fact that he may have 8 letters saying nothing and he holds them back. This takes nothing away from the single letter that makes clear there is a progressive weakness there. This one letter may be from a person able to provide evidence. Even GPs see how he uses his hand during appointments or do they simply ignore everything apart from the present issue he has come to the GP for? What in that is suppression? He is not lying but simply not adding to their case. His aim is to fight his case and not theirs.

As for advice. Had I listened to the first legal aid solicitor I ever spoke to. I would never have won or even attempted the claim process. So it is not hubris but factual results I have worked from. I have won my cases against all legal expectations. Remember too that no case is guaranteed to be examined until tribunal.

Why not advise Mysterdee to look to any and all arguments he can bring and not simply discount argument in favour of limited assertions. The case for argument is an age old one and not something to put no effort to. Many people lose out because they are told the DWP will check on this or that. They will take account of everything. They won't. Spell it out. Paint a picture of your life. To do that you first have to step back and look at all aspects. Especially those you have which you simply no longer notice. The fact you may use special aids for cooking doesn' t mean you are going to think of them when necessary. This 1 point could easily relate to something Mysterdee has already in place. He just needs to ensure they clearly know it. Do you really believe with one hand and 11 points there is no adaptation or aid he is using to find this single point?

I'm off this site. Can I unsubscribe anywhere?

[Deleted User]

One last thing, people respond not just to facts but to how facts are written or expressed. From this, opinion can be changed. At the very least you should try. Scheherazade, the story-teller in One Thousand and One Nights, uses story to keep herself alive. Though a fable, this does indicate that people are human and can have emotion play its part.

Having a case often doesn't win you any award. Presenting the facts well often does.

If facts were always applied correctly by the HCPs and DMs there would be no place for tribunals. Law is not enough. You need to have them look to apply each aspect of the law correctly. 

Ross_Alumni

dulede said:

I'm off this site. Can I unsubscribe anywhere?

Hi, sorry to hear you want to leave the community. If you want us to delete your account then please email comomunity@scope.org.uk so that we can do that for you.  Alternatively, if you'd rather just change your notification alerts you can do that here.

[Deleted User]

I'll just do the notification option thanks. As I am currently interested in PIP as mine is up, trawling the web has got me involving me in stuff that is none of my business. I believe in what I say and due to OCD I can't receive a notification without ruddy replying. 

Thank you Ross. Bye for now. Its been eventful.