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DLA First Tribunal refusal and need to appeal to Upper Tribunal

AngelinnaAngelinna Member Posts: 1 Listener
HELP ADVICE NEEDED - HOW TO APPEAL TO UPPER TRIBUNAL

Looking for help, advice and support on how to challenge DLA refusal at the First  Tier Tribunal after 4 years and  7 months wait (170 weeks wait HMCTS). 

As a 70 + year old the stress of this case has taken a huge chunk out of my life. 

At the First Tier Tribunal it  was felt that the decision had already been decided by the panel.  The GP who was not a spinal specialist made no reference to my very strong medical evidence.  At one point the GP retracted a previous supportive statement.  Throughout the hearing no reference was made to any any of the 1000 pages of medically supported submissions from the appellant. 

The decision was based on 10 mins out of 21 days over 3 weeks of video footage (the very rare goodish days).  Now I am facing having my state pension deducted to repay the so called "overpayment" from 2011 (no substantial evidence) to 2016 (video evidence).  No way will this be paid in my life time - the debt will be taken to the grave.  

Just received the "statement of reasons" which completely supports the respondent, again no reference to my disability despite  numerous consultants/medical letters.  Nor is there any reference to  3 different Judges Directions Notices requesting the DWP to send DVD to me prior to the hearing (first directed 01.09.2020).  The Judge allowed DVD to be played on the day through a computer and also allowed the Surveillance Office to leave after 10 minutes because she was ill,  leaving the appellant to spent over 2 1/2 hours responding to non stop questions to which candid answers were given from first hand experience. It would seem that nothing the appellant said would change the course of the predetermined decision.  The Judge did not question why the DWP failed to comply with the Directions Notices.     How it is permissible for a Judge to allow evidence supplied by the Respondent to provide generic template documents with none of the appellants name on them?


The bias of the Judge has been evident throughout.  At one point the GP clicked out of the hearing.  To date not viewed the recording.  The whole case has been a miscarriage of justice, totally unfair, one sided and bias.
If anyone has been in a similar position I would most definitely like to hear from you.  Likewise who did you turn to for help because to have this case accepted at the Upper Tribunal, an error of law needs to be proved  in the "Statement of Reasons" from  the First Tier Tribunal decision on eligibility and overpayment.

Who is there we all can turn to for help?

Replies

  • mikehughescqmikehughescq Member Posts: 6,533 Disability Gamechanger
    edited June 27
    Very surprised no-one has responded to date but let’s start with representation. Why on earth anyone would think it a good idea to do an overpayment case involving video surveillance unrepresented is beyond me but, putting that aside, start with https://advicelocal.uk/ and get yourself an honest professional opinion and possibly some representation. That you have not done this by the time you have an SOR has no helped your case at all. Now, let’s pick apart the rest of it.

    I apologise in advance if you don’t like some of the following. However, the purpose of advice is to give you an accurate appraisal and an insight into your options. The rest is up to you. I note your stress levels. I am sorry to say some of that appears to be self-inflicted and avoidable.
    Angelinna said:

    Looking for help, advice and support on how to challenge DLA refusal at the First  Tier Tribunal after 4 years and  7 months wait (170 weeks wait HMCTS). 
    There are currently no delays with HMCTS nationally at all i.e. most appeals will be heard within the locally mandated time-scale from the appeal papers being received i.e. somewhere between 11 to 16 weeks. The only reason yours has taken longer is the sheer volume of information you have chosen to run with. 
    Angelinna said:

    … At the First Tier Tribunal it  was felt that the decision had already been decided by the panel. 
    This appears to be your conclusion. I doubt this is the case. In 35 years I have come across 1 tribunal judge who appeared to have pre-determined a decision to the extent that any rationality went out of the window. In around 50% of her cases it turns out she was playing devils advocate and eventually came to the exact opposite view. 

    Your case was determined by a full panel and not a judge sitting alone. The appeal papers are sent to the home of each panel member and they preview them in isolation and do not have the opportunity to pre-determine anything as they often don’t know who their panel members are until the day of the hearing. Nevertheless they are allowed to preview and form a preliminary view. 

    On the day of a hearing they will then preview the appeals with the other panel members. They may maintain their position; realise there are other questions to be asked or realise their perspective is out of alignment with their colleagues. A tribunal which is of one mind before the tribunal has started is almost always one in favour of making an award and quickly advising you of that to save the time of all concerned. Where all 3 members preview and cannot see a way forward for you they stop there and proceed on that basis i.e. they are inquisitorial and happy to let you make a case and prove them wrong. They have no skin in the game. They are independent of DWP and very often quietly and vehemently anti DWP in some respects. 

    So, the chances that all 3 had formed an initial view are 100%. The chances that that means they had “pre-determined” the decision itself are close to nil. 
    Angelinna said:
    The GP who was not a spinal specialist made no reference to my very strong medical evidence.  At one point the GP retracted a previous supportive statement. 
    This is such a basic misunderstanding of the process I despair. There is no obligation for a tribunal to have anyone who specialises in your medical condition and there never has been. This makes perfect sense because claims to DLA, PIP and AA are not about your conditions. They are about the consequences of your conditions. No medical expertise is required for that. 

    The medical professional can say what they want within a hearing and is absolutely allowed to change their mind. Ideally that flexibility is exactly what you want. 
    Angelinna said:
    Throughout the hearing no reference was made to any any of the 1000 pages of medically supported submissions from the appellant. 
    And here we have the crux.

    - no appeal in my lifetime has required 1,000 pages of evidence. On average for such appeals I would go in with close to zero medical evidence and a written submission running to maybe 15 pages at most. Anything above that is at best unnecessary duplication and at worst actively damages both your credibility and your case. A less polite way of putting this would be that you look stupid because you clearly didn’t know what it is you’re supposed to be doing.
    - there is no requirement to reference anything during a hearing. Provided all parties have the same papers and all parties have previewed alone and then together then you can assume the 1,000 pages have been read and understood unless you have some explicit evidence to the contrary. 
    - the purpose of an oral hearing is to hear your evidence; then weigh all the evidence; find facts and then apply the law to those facts. Not talking about every last piece of evidence is not an issue. Tribunals have up to 8 appeals per day and if they were obliged to talk through every document on the day they probably wouldn’t even get through 4 normally.
    - I have no idea what “medically supported submissions” means. I suspect it’s a fancy way of saying “they all agree I have what I say I have”. As that isn’t likely to be the main consideration at a DLA overpayment appeal I suspect you have wasted a huge amount of time and paper putting in evidence which simply doesn’t address the issue at hand.
    Angelinna said:
    The decision was based on 10 mins out of 21 days over 3 weeks of video footage (the very rare goodish days).  Now I am facing having my state pension deducted to repay the so called "overpayment" from 2011 (no substantial evidence) to 2016 (video evidence).  No way will this be paid in my life time - the debt will be taken to the grave.  
    The decision is based on all the evidence in the appeal papers; the video evidence and your evidence on the day. Some may be given more weight than others. That’s not the same as “it was just based on this” and frankly if it was then that’s often because you simply haven’t provided an alternative narrative. No medical consultant on the planet can say exactly how much attention/supervision you need with bodily functions as they don’t live with you. Repeating what you tell them suggests they believe you are credible  but that’s not medical evidence. Reports that simply cover diagnosis, prognosis and treatment are unlikely to be addressing the matters at issue in your case.
    Angelinna said:
    Just received the "statement of reasons" which completely supports the respondent, again no reference to my disability despite  numerous consultants/medical letters. 
    Again, there is no requirement for an SOR to reference your disability. The fact you reference “numerous” documents which do that does indeed reinforce the impression you have misdirected your evidence to the wrong question.
    Angelinna said:
    Nor is there any reference to  3 different Judges Directions Notices requesting the DWP to send DVD to me prior to the hearing (first directed 01.09.2020).  The Judge allowed DVD to be played on the day through a computer
    This could be relevant to a UT appeal but it depends on whether you raised the issue not them. If you weren’t happy with seeing the video on the day for the first time then it was up to you to say so at the time. You could have always requested either a short adjournment to consider a response or a longer one to either get a rep or put in a written submission. You went ahead so it will be assumed you consented unless you says otherwise.
    Angelinna said:
    allowed the Surveillance Office to leave after 10 minutes because she was ill,  leaving the appellant to spent over 2 1/2 hours responding to non stop questions to which candid answers were given from first hand experience.
    Hmm, are you 100% sure that the person present was the “Survelilance” person i.e. the person who shot the footage? Were they in fact just the DWP presenting officer? This difference is crucial as you could question the former and those answers would have real meaning. Questioning the latter would be like asking a friend of a friend of a friend.

    Whilst 150 minutes of questioning is gruelling you always have the option to ask for a pause and it’s a big ask to persuade anyone you didn’t have a fair hearing when effectively given the floor for that long.
    Angelinna said:
    It would seem that nothing the appellant said would change the course of the predetermined decision.  The Judge did not question why the DWP failed to comply with the Directions Notices.   
    With all due respect this comment makes you appear silly. You should already be able to understand from earlier why pre-determining a tribunal decision against an appellant issue near impossible. However, the judge does not have to question anything unless it’s before them. If the notices are in the papers then it will be assumed there has been compliance unless you say not. If you then agree to go ahead with viewing the video on the day anyway then the directions cease to be relevant. 
    Angelinna said:
    How it is permissible for a Judge to allow evidence supplied by the Respondent to provide generic template documents with none of the appellants name on them?
    Gonna take a punt at this point and say it was possible because you didn’t raise it. Almost evidence is permissible in front of a tribunal. You can ask that it’s given less weight or provide evidence which does that but it cannot be excluded. You are not a passive participant in these proceedings. If you didn’t raise it then why would it be an issue? If you raised it then the tribunal will have hired your concerns but appear to have concluded they are outweighed by the weight of other evidence. Nothing wrong with that approach at all. 
    Angelinna said:
    The bias of the Judge has been evident throughout.  At one point the GP clicked out of the hearing.  To date not viewed the recording.  The whole case has been a miscarriage of justice, totally unfair, one sided and bias.
    I suggest you think about this allegation very carefully. The decision was not made by a judge. The decision was made by a panel of 3. How do you know what happened to the medical professional and what happened next? I am not reading bias here. That is but to say that they made the correct decision. I cannot possibly know that. However, the fact we’re talking about an overpayment of DLA and you’re talking about 1,000 pages of medical evidence rather than maybe 5 sides on failure to disclose/misrepresentation suggests you have taken wrong turns from the off and now urgently need welfare rights advice. 

    Finally, I suggest you think carefully about this assertion.
    Angelinna said:

    The decision was based on 10 mins out of 21 days over 3 weeks of video footage (the very rare goodish days). 
    How likely or credible do you think it is that a person reading this thinks DWP managed to video you coincidentally on “goodish days”? Of it were you looking at someone else would that seem a credible argument?

    If the video were all  “goodish days” then why specifically would DWP concentrate on a mere 10 minutes? What is it we’re not being told here? What does the video show? Ultimately if you are to get anywhere with this you now need to 

    - get advice.
    - address head on the discrepancies between the video and your original claim.
    - consider whether any of your 1,000 pages addressed the attention/supervision issues.
    - ask yourself whether your submission addressed the main issue of failure to disclose/misrepresentation at all.
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