My request to UT has been refused for my PIP appeal. Wondering about my options

cat_hug

Hi, my request to UT has been refused for my PIP appeal.

I've been told I have 2 options left open to me to continue my case. As things stand now, my appeal has been refused and my case is closed.

However, I can 1) ask for decision to be set aside under rule 43 if I can satisfy rule 43 part 1 (a) and (b)

And rule 43 parts (a) (b) (c)

Or

Ask for a Judicial Review.

The person who was supposed to be my advocate, advised me to 'do nothing ' about the Set Aside.

In addition. She didn't reply to me about my options until after the deadline to ask for a judicial review.

As I spent most of Match in hospital in hospital with head injuries and deep laceration to my leg following falls due to losing consciousness, I think I may have good cause to argue for a 'late submission with regards to a Judicial review.

The deadline for asking for a Set Adide, is this Saturday, May 15th.
Again, I was in hospital yesterday for a cardio procedure and Monday was taken up either pre op assessment. 

I have managed to write a formal request for a Set Aside under Rule 43 1 (a) (b) and rule 43 2 (a) and (c)

I sent this posted by special delivery to arrive at UT May 11, four days before the deadline.

My question is (Maybe @Username_removed can help answer?) Is it possible to do both? Ie ask for a set aside AND ask for a judicial review?

I am doing this on my own now as being recorded as having a representative doesn't mean I've actually had representation, because I haven't.

Under rule 43, part 2, (a) is if you can satisfy that documents were not or not received, at an appropriate time by a party/party's reprentative at an sppropropriate time  to s hearing relating to proceedings.

Part 2 (c) if a party,/party's representative was not present at a hearing relating to proceedings.

Rule 43 part 1 (a) says if the judge deems it in the interest of justice
Part 1 (b) is satisfied only if part 2 (a) (b) or (c) if at least one of these conditions can be shown to be satisfied.

As my advocate was NOT present at my FTT hearing, I'm hoping that this unequivocally satisfied rule 42 part 2 (c)

And documts not being sent by a party/party's representative satisfies rule 43 part 2 (a)

By virtue of these being satisfied, rule 43 parts (a) and (b) will shoe that it is in the interest of justice and part (b) that any of parts 2, either a, b, or c have satisfied the conditions to grant a set aside under rule 43.

What I'm not sure about, is I'm successful at getting the UT decision set aside, does that mean the judge WILL allow my appeal to be heard at UT?

Or will they bounce my case back to a new FTT?

And, in the meantime, can I start proceedings to ask for a judicial review? If so, how do I go about this?

I believe I'd need to show some kind of irregularity occurred with the UT? however, any such irregularity occurred because I believe that the UT agreed with the FTT judge, having not considered all the salient points of that hearing?

I've read the first tt panels redacted statements responding to my allegations about my hearing being cut short short due to the next appellant being outside the door waiting.
Whilst the judge neither confirms nor denies this, she states she cannot think of any scenario where she would've done this and also denies that my son didn't get chance to have his evidence heard.

The other 2 panel members can't remember, as it was over a year ago.

The clerk also says he cannot remember.

As such, the UT judge deemed my allegations to be without merit.

Ironically, he says its not mentioned what evidence my son wanted to give, so he has no way of knowing whether that evidence would've had any bearing on the case.

When I re read the ftt judges statement responding to my allegations, there were so many holes in her statement and two completely contradictory paragraphs, its obvious that the UT judge had only skimmed over the panels statements, otherwise, I think he would've taken into account that none of panel outright denied my case was rushed to an end, since they couldn't remember.
Whilst my son and I, clearly recall these details, since I only had the one hearing and it was MY hearing, therefore,  my recollections of that day were pretty vivid.

Essentially, it was the UT judge taking the FTT judges assertion that she wouldn't shut down a hearing quickly because its against the rules, against mine and my son's testimony, that this definitely happened.

Surely, if nobody on the panel can recall specifics, we should've been given the benefit of the doubt, as nobody else could confirm nor deny that this happened?
Nor could anyone confirm nor deny that the PO was already in the room when we entered.

My point being, just because the rules say something shouldn't happen, does not mean that it didn't happen?

Or am I missing something here?

Anyway, bottom line is, what, if anything, can I do now? 

Thanks again for bearing with me.

Best wishes and hugs to everybody

Cat xx

Ross_Alumni

I'm sorry to hear that your request was denied @cat_hug, I just wanted to say that you have my very best wishes and I hope the next step goes better for you.

I've slightly altered the title of your post, just to give members a bit more detail about what to expect, I hope that's okay.

cat_hug

Thanks Ross. That's a much better description than mine. ?

Cat xx

cat_hug

Thanks Mike. You're right, I should have scanned in the docs and sent them, but between being a tech useless and hospital inpatient, I've not managed to scan them in anonymised.

I wrote a letter directly to UT in my own words and was advised that although my case is essentially closed, I had two options left open.

One was to ask for a set aside

2. Was judicial review.

The letter indicated that I could ask for a set aside under rule 43 if 1 a and b and 2, a.b. or c could be satisfied. 

Whilst the conditions which these can be satisfied, are very limited at best, I believe they can be proven.

I admit I am flailing and probably clutching at straws but after fighting this for so long, can't just give up now because this is my life on the line.

I've no idea why the ftt judge and other panel members statements were redacted, but the fact that the judge doesn't outright deny rushing my hearing to a close, but simply states she can't imagine a scenario where that would happen, coupled with the fact that the other two panel members say they can't recall, seems to me unfair, that the UT judge would say my allegations have no merit.

Its a case of he said/she said and surely, if it were truly impartial, then in the interest of justice, the judge should give the appellant  benefit of the doubt?

They only have to look at the time my hearing ended and the next person was called in, to prove that it is possible that I passed him as we were leaving.
Also the fact that there was no time for me to be asked to wait outside, and be called back in and be told the decision face to face, as would be normal practice.

Instead, the decision had to be posted by mail two days after the hearing.

The ftt judge statement completely contradicts itself too.
In one paragraph,  she says she wouldn't ask the clerk if the next appellant was already waiting.

The next paragraph, she says she would ask the clerk if the next case was ready to be heard.

The clerk himself says he would only speak if the judge asked if the next person was waiting, in which he would say confirm or not that they were.
(In my case, he confirmed that yes, they were already outside the door waiting)

This brought pressure to bear upon us to wrap up quickly, hence my son didn't get chance to say what he had written down in the notes he'd taken throughout the hearing.

The PO who had present all day, hurriedly got up and left the building (she clearly didn't stay for the last hearing of the day, which again, I believe adds weight to the veracity of my statements, that my hearing was rushed to a conclusion and b that the PO was present before we even arrived).

You're right that cost of getting legal representation would be prohibitive, but  I know in my gut that there has been so many wrongs done throughout this whole case, it would take a professional to decipher them and point them out to a court.

What is the point of all these previous high court decisions if when they are clearly pointed out to be applicable to my case, they are simply ignored?

I don't know if its because the ftt judge felt miffed that somebody like me should highlight them (which is my feeling, but is moot, because I can't prove that) or whether it's something else, but simply the fact that I never got a chance to properly address other descriptors that I'd wanted to appeal, due to the hearing being cut short and evidence not being presented to support my appeal in relation to the other descriptors,
It very much feels like a domino effect where the tiles did not fall in my favour.

Had even one of those descriptors been addressed, I would have got even the minimum of 2 points which would've brought me above the thresh hold for getting daily living component. From 7 points to 9.

As a result of all these failings, I cannot even get help from adult social care, as I'm not in receipt of daily living for pip.

I've just spent nearly a month in hospital as a result of head injuries and other injuries, had another heart procedure three days ago, from which I've been in bed since and have a second pre op assessment next week for another surgery.

I just don't understand how bad things have to get before a person can get help?

I suspect reviews will happen post mortem, like with my sisters who lost their lives because of failures with health/ social care and such services.  The sad thing is, it shouldn't get to that, but I fear, like my younger sisters, this will be the case for me too. Barring a miracle of course.

I also suspect that such situations as mine, are not isolated, but how can we get professional legal counsel if we are not accused of a criminal offence? Despite the fact that these injustices are putting our very lives at risk? 
Are there any human rights lawyers out there, who would be willing to take a look at cases such ad mine?

Whilst I have no legal background, I can find fine many ut decisions and case laws that should support aspects of my appeal, but that been ignored or counted as not relevant.

Which begs the question, what is the point of these laws/decisions being cited on other appeals if they cannot be applied or are not applied?

If the law is subjective by virtue of a single judges interpretation, is that truly in 'the interest of justice if said judge agrees with another judge, simply by virtue of a shared commonality in their profession?

I am not having a go at you @Username_removed but am merely asking these questions to try and understand the whole point of the processes that formulate the decisions that affect our lives? 

Hope I've managed to put these in some sort of coherent way.

Thanks again for your help and patience in reading this post.

Right now, I feel so utterly despondent, I just don't want to be even be present in this world. I'm too disheartened and exhausted to spend another waking moment with my thoughts.

Thank god for sleep because wake is bloody torture.

It sounds like even if the UT did agree to set aside, I'm not going to win that lousy one point I need to get awarded pip daily living.

Have a good weekend everybody.

Best wishes

Cat

Ps anyone trying to appeal an adverse pip decision, don't give up.
Statistics say something like 74% decisions get over turned at tribunal.

Despite my transition from being on DLA since the late 90s and having a lifetime award, and being awarded 5 points initially for Pip, then getting 2 more points at tribunal, my case was the exception and not the rule. So keep fighting. You've nothing to lose.
Good luck and God bless Xx

cat_hug

Thanks again Mike. Is there any way I can send you the papers in private?
I did have specific descriptors that I wished to address at the FTT, but feel that the law wasn't properly applied with regards to the judge addressing these.

For example, the descriptor regarding needs help social interaction.

Because the HCP report said I appeared calm and wasn't nervous, that wasn't addressed.

Because one of my oldest friends had written a letter of support, judge asked 'how do I see this friend's. I said she comes to my house in her car.
The judge asked if we have coffee when she visits.
I replied honestly and said yes.

I didn't get the chance to say that I hadn't seen nor heard from my friend for 18 months prior to the hearing (other than her emailing the letter in support of my pip claim)

As the judges questions were very leading and specific, there wasn't chance to say anything outside of those questions, nor to point out that communicating with a HCP wasn't indicative of NOT needing help with social interaction.

Another issue was the needing help with complex budgeting.

The judge asked me if  I can count change when doing a shop.

Again, I answered honestly and said yes.

I believe that that descriptor was questioned and applied for someone who needed help with simple budgeting, not complex budgeting.

I'd been awarded 2 points initially for the cooking descriptor.

Fortunately, the judge spent most of the time questioning this descriptor. I was able to point out that the descriptor said preparing a simple meal from scratch, using fresh ingredients.
And that whilst using a microwave is much easier, I've still had scalds and burns removing a hot microwave meal from the microwave.

Also that I like to make fresh meals using an oven and hob, but have sustained injuries with prepping and cooking this way, so only do so with help.

I was awarded an additional 2 points for the cooking descriptor which gave me 4 points in total for that.

Going back to the social interaction descriptor, the judge said that because I was awarded 12 points for mobility, (needs a guide dog or another person to plan and complete a journey), that this descriptor had been addressed.

However, my point is, that I find it extremely difficult to even meet with family, or snswer my phone. My phone phobia I think stems from associating phone calls with really bad news.

The deaths of both my younger sisters was delivered by my Dad telling me by text he was going to call me and could I answer my phone. Only to tell me my sister was dead.

Same for other family deaths.

When my partner died, it was the police knocking on my door to inform me of his sudden and unexpected death.

So yes, I can say that my phone ringing or anyone knocking on my door fills me with dread to the point I don't answer the door or phone.

Supermarkets scare me especially if people are queueing behind me. I find myself getting shaky and dropping things. So  I try to shop late at night or in the early hours when our asda was open 24 hours, to avoid people.

I didn't get chance to say any of this at tribunal, although I did have it written on my original pip form and had said it at the atos/ IAS interview.

There were other things that I wanted to address but simply didn't get chance because the judges questions did not allow me to say in my own words.

With regards the PO already being in the room, both myself and my son recollections were that she had already been there, because the panel was already there when we went in.

I've since come to second guess myself about this because everyone keeps telling me it can't have happened.

One of the panel, or maybe the clerk, said in their redacted statement that although they can't remember, it's possible she was already there and held the door open as we entered.

I suppose none of this matters though now if it's a foregone conclusion and they likely won't allow a set aside.

The other thing is that long before it even went to tribunal, I'd had an ESA decision that moved me out of support group into WRAG.
I appealed that and my MR was refused.
I asked to appeal through tribunal. Just a couple of weeks prior to having my pip daily living rejected, I received a letter from DWP telling me that after looking again at all the evidence, they had decided to lapse my esa appeal as they had found in my favour and reinstated my esa for being moved back into support group.

That letter was never included by DWP in with my pip bundle.

I know that getting one benefit does not mean that you automatically qualify for another, but as the dwp used the hcp report  from my esa and not the report from the hcp done for pip (the esa report was much more comprehensive), I feel that this was important evidence that dwp omitted and evidence that would've been favourable to me getting daily living.

I also had audio evidence of a phone conversation I'd had with a pip agent when it was coming up to the 17th week  of waiting for a MR decision for pip.

That conversation is evidence of the agent telling me that dwp had been awaiting further info and an email which had actually arrived that very day at 11.43 am, but it looked like a decision was imminent and it looked favourable.

He advised me to call at 8 on the dot the next day and that a case manager would be available then.

When I rang the next morning, the person I spoke with denied that any email had arrived the previous day and that they were still waiting 'further information due to my 'complex medical history.
So this essentially was telling me what I'd been told for weeks, was the reason for the MR taking so long.

I explained about the call I'd had the previous day (I'd been on hold just short of 3 hours and it was 615pm by the time I'd got through to the gentleman I'd spoken with)

This woman was quite rude and told me to 'be patient as a decision might be made soon.

As I felt I had been patient (waiting 17 weeks with no nearer to getting a decision was testimony to tht), which I said (perhaps I shot myself in the foot there).
I asked where do I write to submit a formal complaint, and she asked me to hold off doing this and someone would call me with 24/48 hours to discuss my case.

I waited another 2 days and nobody called me. It was then I wrote a letter of complaint as to the way the whole transition had taken place, about them cancelling my hcp interview 9 separate times (one appt cancelled 5 minutes the person was due at my home) and that I'd been told the MR decision could take UP TO 10 weeks. But it was now 17 weeks and I was no nearer to getting a decision etc.

I never did receive a reply to my letter of complaint. However, within a week of sending that letter, I got a letter rejecting my MR and Pip daily living as 5 points meant I hadn't met the threshold.

I actually sent off a data subject request for a copy of the phone conversation I'd had with the agent, who had told me they'd received the additional info they'd been waiting for and that it looked like a favourable decision was imminent.

I have that evidence but again, had no way of getting it heard at the FTT.

I've no way of truly knowing if  I had been about to be awarded pip and that by asking about whom to write to to lodge a formal complaint, damaged my case, but I can't help think that may have been the case.

I don't know if there is any way of getting all of this info out there to somebody who can look at my case in its entirety. I just feel that there's been so many things that are wrong about all this and want to find some way of getting a fair hearing.

It probably does sound gargarbed @Username_removed and I'm having a job keeping up myself.

As things stand now, I've put in a request for a set aside under rule 43 and am waiting to hear if the UT will grant it or refuse it.

My other option is a JR but as you say, the cost of this is likely prohibitive.

Right before lockdown, I was in touch with a journalist from the canary who was interested in my case. Maybe that's a possible route? Even if it helps one other avoid the stress of going through what I've had to, it will be worth it.

If there is an email address that I can scan and post in the docs to you to look at, I'd like to if you wouldn't mind looking over them? If not, I understand. It's been going on a long time and isn't exactly straight forward.

Thanks again in advance for taking the time to read and answer my post

Enjoy the rest of the week end

Best wishes

Cat xx

cat_hug

Thanks for your candour Mike. I appreciate your advice as it is an absolute minefield.

It's very good of you to so much to help people like me.
Thanks again. I'll keep you posted as to the outcome, be it good, bad or indifferent.

Best wishes
Cat xx