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Judicial Review whilst making a new claim for PIP

cat_hugcat_hug Member Posts: 127 Pioneering
Hi guys,
After fighting for over 2 years for my pip appeal, I've just exhausted all the appeal avenues, except Judicial Review.

I am looking into taking my case to JR, although I understand its a difficult and costly procedure with no guarantees.

I am looking into applying for an exceptional case fund through legal aid. However, in the meantime, I'm thinking of submitting a new Pip claim.

I am somewhat reticent about doing this, as I know there is a risk of losing my existing benefit ( I was awarded enhanced mobility for an ongoing period, but only got 7 points for the Daily living component,  which meant I also lost my SDP premium of my ESA .

I've been looking into how to proceed with a JR and read that you're supposed to inform the DWP of your intention to take your case to JR (as they might choose to remedy the case without the need for JR?)

My question or questions are:
Would applying for permission for a judicial review of my existing pip appeal, effect making a new claim? (Apart from the obvious gamble of losing what I get already?)

I used to get DLA for life, low rate mobility, middle rate care.

Also, would making a new pip claim mean I'd lose ESA (I'm on income based esa, in support group)

I understand that change of circumstances could trigger a move to UC and I'm not sure I could cope with that right now, as I'm barely hanging on a thread physically and mentally)

Apologies for the long message. Hope its not too garbled but could really use some advice.

I've found a lawyer who does JR'S with legal aid (obviously this would depend on the ECF application being successful. Thanks in advance for any advice.

Just as an aside, I was wondering whether my pip application might be one of the thousands that the DWP are supposed to look at again as being wrongly assessed under the needing help with social engagement? I know I'm probably clutching at straws but I've no idea if I would fall into the group who missed out, as the assessors completely dismissed my difficulties with engaging socially, because  I didn't appear nervous or anxious at the HCP assessment. (Their words)

Thanks again in advance 


  • janer1967janer1967 Member Posts: 11,201 Disability Gamechanger

    If you have a pip award already eg your enhanced mobility and standard daily living then you can't make a new claim 

    All you can do is report a worsening condition eg change of circumstances 

    Yes you risk losing what you have 

    Doing this will not mean a change to uc though 

    I don't know anything about Jr so will leave that to others 
  • mikehughescqmikehughescq Member Posts: 6,628 Disability Gamechanger
    It’s easy to lose track of where we’re up to with some cases. So, if you’re already getting PIP then there is no new claim to be made. However, is the claim you’re considering for JR the one currently in payment or a different/earlier claim? I am confused. 

    No-one on a forum can advise you of the risk of losing what you have because too much detail would be needed to establish that. What can be said is that the risk of losing what you already have is usually low. Most people simply retain their existing awards. However, there are lots of variables including the quality of the comp;eyed review form; the quality of anecdotal evidence etc. Essentially it’s one to get fave to face advice on. There is no other way to get an answer on that appropriate to you. 

    As there is not going to be a new PIP claim the question of the impact on ESA doesn’t come up. However, it’s always worth getting face to face advice as people who have no  SDP can be better off on UC. 

    Most JRs require a letter before action but I’m not sure why you’d be reading up on it. If you have a solicitor who can DLA JR then let them crack on. As per my previous comments I do believe this is the longest of long shots and ditto ECF. 
  • chiariedschiarieds Community Co-Production Group Posts: 9,198 Disability Gamechanger
    edited June 30
    Hi Cat, I've followed your posts, but tbh can't remember them all. As you will know, any award you had for DLA has no relevance with PIP as they're different animals, or at least have different criteria. I'm another who had a lifelong award of DLA (middle rate care & high rate mobility), which matters not an iota when claiming/migrating to PIP.
    As Mike has previously described to other members, & reiterates here, is, if you put in for a change of circumstances, then it's always wise to get advice before doing so. A question would be, have your difficulties changed since your last award, & would those be sufficient to change the points that might be awarded with consideration to the PIP descriptors? I think I remember there has also been a query as to how long your current award is for....is it for 2 years, or longer? That may influence your decision too.
    As far as the changes about the 'Engaging with other people ' descriptor goes, the DWP are just looking at decisions made between 6 April 2016 & 17 Sept 2020, & only if they consider additional points would mean a person might be awarded the standard rate, or a standard rate could be increased to an enhanced daily living one. Some info here: https://www.benefitsandwork.co.uk/images/image/samples/PIP_engage_changes.pdf, which includes links to: https://www.supremecourt.uk/cases/docs/uksc-2017-0215-judgment.pdf    As far as I'm aware, altho several members have queried this, none have said they've heard further from the DWP in regards to this.
    I hope it's not presumptive of me to say, as I wish the best for you, but, from my limited understanding, you seem to be caught up in trying to understand the legalities of the system, when you appear to have ground to a halt. Perhaps time to get back to basics; the PIP descriptors, & their relevance in your own individual case.....?
  • Ross_ScopeRoss_Scope Posts: 4,186

    Scope community team

    Hi @cat_hug

    Good to hear from you, I hope you are doing okay this Wednesday morning

    I'm sorry to hear that you are barely hanging on physically and mentally at the moment. Please do access any support avenues you have in place, and keep in mind any coping techniques you have to help ease your mental health symptoms. I always find that Mind have some useful coping techniques over on their website, but anything such as doing a hobby of yours can help.

    Our inbox is always open too as you know, so feel free to drop us an email to [email protected] if you want to talk about anything or if you need help at all accessing support.
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  • Tori_ScopeTori_Scope Posts: 5,038

    Scope community team

    Hi @cat_hug :) How are you doing? Have you managed to make any progress? 
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  • cat_hugcat_hug Member Posts: 127 Pioneering
    Hi Tori, the short answer is no, not really.
    I found a firm of Lawyers in London who will represent people who want to take a case to judicial review.

    At present however, we seem to be doing the telephone tango and missing each other.

    I think (but am not 100% sure if I've got this right) that they will look at your case to see if there is any merit for a JR.

    If they think there is, they will do the case on a no win no fee basis, but will take a percentage of any back pay you do win if the JR works in your favour.

    The other option is to apply for extraordinary case funding through the legal aid scheme.

    It's been a bit difficult just pressing on with it to be honest, as I had another surgery about 3 weeks ago and finally managed to get my first covid jab ( which has been delayed because I was in patient in hospital. Then I had the heart procedure then this recent surgery)

    Luckily no ill effects from the vaccination but it wiped me out for a couple of days. I slept a marathon!

    Ots a case of really just finding out if my case has any merit to go to JR. I believe it does because I don't think the law was applied properly with the pip descriptors. However, I'm very far from being an expert in these issues.

    In the meantime, I've managed to get help from a support worker and she's rang pip for me, to put in a new claim.

    My worry with this is that my conditions were already much worse when I was transitioned from DLA to Pip.

    In some respects the DWP must've agreed that my condition had worsened, as they awarded me enhanced mobility whereas I got low rate mobility under DLA. I also got middle rate care then too. The issue has been that I didn't get awarded Daily living. 

    DWP initially awarded 5 points for daily living and 12 for mobility for an ongoing period.

    I was awarded an additional two points under the cooking descriptor, by the first  tier tribunal. Which still left me short by one point to meet the thresh hold to get an award for Daily living.

    From the start of the pip transition, to the refusal from UT my case has been a comedy of errors in many respects.

    The health care appointment was cancelled and rescheduled 9 times before it actually went ahead.

    That in itself was mental torture. Getting in a tizz  then it gets cancelled (not by me) and the penultimate appointment was cancelled just five minutes before the assessor was due at my house.

    Then when my award notification came through (within a few days of the assessment) it took 17 weeks to get a decision about my MR.

    I'd kept getting told to be patient and that they were waiting further info from the HCP due to 'my complex medical history but the case handler had not been online for 9 days... this was supposed to be followed up on.

    I finally got through to a gentleman who said that the report they'd been waiting on, had just come through that day. He told me the exact time and said it looked favourable.

    However I'd been on hold for over 3 hours before speaking with this guy so it was well after 6pm and all the managers had gone home.

    He advised me to ring back at 8.00am on the dot when someone should be able to tell me more.

    I did as advised but the woman I spoke with denied any knowledge of the report coming through that they'd been waiting for.

    She basically denied everything the guy had told me the previously day and told me I need to be patient as a decision could be made any day now.

    She asked me to hold off from making a formal complaint and promised that someone would give me a call back within 24 hours.

    2 days later after still awaiting the call back, I wrote a formal letter of complaint.

    This letter was never acknowledged but within less than a week, I got the MR decision. Not only rejecting my appeal for the daily LIVING, but also reducing the mobility from an ongoing period to a fixed term of 2 years. That felt very much to me like punitive action for daring to complain.

    Whilst I was compiling my appeal for FTT, I got a subject access request for the audio recording from the gentleman who had said the report had just come through that day. I also asked for data info for my records that DWP held.

    By the time it got to ftt nobody seemed interested in the fact that my original award notification was for an ongoing period.
    Nor that just 2 weeks prior to being refused pip daily living, the DWP had quashed an appeal I'd made to tribunal about moving me out of support group for ESA as they'd looked again at all the evidence and found in my favour. 
    Something  to do with rule 35 of ESA.

    So all of these things collectively, including the fact that one of the points I'd put to the UT that there'd been an error in law, was to do with length of the award.

    The judge said this argument had no merit as the FTT judge had increased it from 2 years to 4. My argument is that it was given in writing that the award was for an ongoing period.

    There are too many other factors to even begin to explain here, but I'm hoping if  I can just get somebody to actually listen, who does have enough knowledge to help, I have all the evidence to back up what I've said and hopefully a JR will revise these errors. 

    My concern about making another pip claim is the risk of losing what I've got ( ie mobility).
    However, when I lost out on Pip daily living, I also lost my SDP od my ESA, despite being put back in support group. (I'm still in ESA support group) and of course, we didn't get the 20 quid a week uplift for Covid like UC claimants did. 

    Although I understand there is a case that is challenging this as discriminatory to disabled claimants and other legacy benefit recipients. But that's by the by really.

    So my short answer about progress (no, not really) ended up being a long account of the history of my transition from a lifetime award of DLA, to Pip under this government's austerity  measures.

    Ironically too Tori, you very kindly made a referral to adult social care. I was told because I don't get pip daily living, I'd have to fund any help myself ( the assessor gave me a bit of a lecture that I should be able to afford to pay for telecare medic alert myself out of my grand income of 300 a month!!! 

    She was going to speak a manager and send a financial assessment form but I never heard from her again.

    I've had falls since, but so far luckily no more head injuries since the ones that rendered me unconscious and having to spend time in hospital as an inpatient.

    Sorry I've just spent An eternity babbling on. I'll shut up now.

    Hope everyone is keeping OK? 

    I managed to fill a bag with some of my kids old toys and clothes, dig out the bungee wires and the portable wheels and donate then to our local charity scope shop.

    And left with a bargain bag of art and craft stuff for card making.

    Really nice to see the charity shops open again..

    Good night God bless and thanks for asking @Tori_Scope .Tori

    Hugs. Cat xx
  • Ross_ScopeRoss_Scope Posts: 4,186

    Scope community team

    Sorry to read of all the inconvenience you've been through @cat_hug, I hope things take a positive turn with the benefit claim soon :) 

    Sounds like you've been very productive in clearing out some items from the house, and card making sounds exciting. 
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  • cat_hugcat_hug Member Posts: 127 Pioneering
    Thanks @Ross_Scope. The card making is pretty therapeutic. Still a lot of clearing out left to do. Bit by bit xx
  • littleacornlittleacorn Member Posts: 198 Pioneering
    To clarify what are you recieving now? 
  • cat_hugcat_hug Member Posts: 127 Pioneering
    edited July 21
    Currently get enhanced mobility and no daily living.

    Am in support group for ESA @littleacorn

  • mikehughescqmikehughescq Member Posts: 6,628 Disability Gamechanger
    Then there is no "new" claim to be made. Dependent upon your circumstances there may be a challenge to the existing award but we don't know enough about the specifics of the health conditions to be able to comment. I'm not suggesting we need a medical history but just knowing the specific medical conditions helps suggest whether an entitlement is likely. I appreciate not everyone wants to disclose. 

    It is also worth bearing in mind that right now challenges to existing awards are way down the list of "important things to do which must be done quickly" for DWP. New claims and mandatory recons are the priority. Ought not to be the case but it is.

    So, if I were to go for a challenge but not necessarily be in a great place e.g. at risk of delays causing further upset and anxiety etc. then now may not be the moment.  

    The other key issue here would be to ensure that all the things you did for the claim/challenge which went wrong do not get repeated here. If you do the same things then you get the same outcome. Bearing in mind that the likely reasoning behind a challenge would presumably be exactly the same as the reason you pursued the matter to FTT, UT and now potentially a JR then persuading the DWP to suddenly take a different view on the same things is going to require a complete rethink on the approach. 

    One to pause and think on I would say. 
  • cat_hugcat_hug Member Posts: 127 Pioneering
    Yep. That makes a lot of sense @mikehughescq

    Bit like Einsteins theory on madness. Repeating the same thing over and over and expecting a different outcome.

    My understanding of this claim, is its a review?

    I've no issue saying what my health difficulties/disabilities are:

    Narcolepsy with Cataplexy ( lifelong neuro condition with no cure and best case scenario is its 'managed with pharmaceutical help') I'm prescribed the max allowed dose in the UK and still have problems with wakefulness and ironically, sleep too.

    Diagnosed about 30 years ago.

    In 2010 I had a dissecting carotid aneurysm. This caused a brain haemorrhage which resulted in 2 strokes.

    The strokes have left problems with memory, clarity of thinking, some left sided weakness and something called Horners Syndrome.

    Around 2012 I was diagnosed with a complicated heart arrhythmia which causes palpitations, sudden increase in heart rate, dizziness and chest pain.

    I've had 2 cardio ablation procedures (in 2013 and again in October 2020)

    We have a family history of Pheochromacytoma which is a rare adrenal tumour. It can be genetic but is notoriously difficult to diagnose.

    My Sister died at age 32 from it ( found post mortem)

    I've had 2 tests which gave ambiguous results and one normal result. Currently been lost in endocrinology waiting list since 2017.

    March this year, I began to have spells of suddenly losing consciousness.

    Spent a week in the hospital following head injury and deep laceration to leg after falling on a broken jar whilst unconscious.

    A week after being discharged, with recommendation for cardio, neuro and endocrine referrals, Same situation happened and I suffered another head injury.

    Another 10 days in hospital. One doctor suggested symptomatic of pheochromacytoma but essentially, not got to the bottom of these 'blackouts' which give no warning at all and are pretty scary because of not knowing cause or what precipitation factors lead to it happening.

    I've lost a lot of weight gradually I suppose, since the transition from DLA. (Around 2 and half stone I think)

    Since the Pip decision ( and if I'm honest, even before then) have struggled with depression and anxiety.

    Only recently been referred for counselling/therapy by mental health services.

    In May this year, cardio fitted a pacemaker device that is on a loop recorder for my arrhythmia. 

    Last month, I had eye surgery which was meant to improve my vision from weakened upper lid owing to Horners syndrome from brain aneurysm.

    Not sure if it's actually worked tbh. There were no guarantees it would.

    I still get frequent spells of dizziness, drenching cold night sweats which leave me unable to get out of bed, sometimes for up to 3 days, except to go to loo.

    The times when I do have energy to function nearer to normal, I have to be ultra careful due to unsteadiness and dizziness and tremors.

    Struggle to remember  to eat because I just don't feel hungry much of the time. Which I know sounds strange to people. How can you forget to eat? Easy when your brain isisn'telling you need food. Until the shakes tell me oops. Food. Need some.

    Everything before March 2019 the DWP are aware of.

    The issues since might be problematic, because although my health has undoubtedly worsened, the cause of this deterioration is unsolved.

    They tell you it's not about the condition, but how the condition affects your daily living.

    I think I've struggled to answer the questions and descriptors because I've struggled to think in a non-linear way to explain how these issues combined affect my daily living.

    To anyone who sees me, they'd never know I have the problems I have unless they know me.

    My neighbours only see me on better days. I am not a wheelchair users, but although awarded enhanced Mobility, I'm unable to drive because of the narcolepsy ( I'd be refused a licence) which is fair enough. I wouldn't want me on the roads either.

    So that's me in a nutshell.

    I am affected most days by one or more of these issues to a greater or lesser degree.

    The anxiety and depression have definitely worsened since losing benefits and this in turn affects my physical health.

    I've always been the one to look after others, especially being the middle  child of a large family of 9.

    Then raising my own 2 children. I lost my partner 3 months after the aneurysm in 2010. My little sister died 2007 from the tumour and another younger sister took her own life in 2014.

    Mum was diagnosed with stage 4 lung cancer and died a year after my sisters suicide. 

    I know all of these issues and losses have an impact. As has having a daughter with bi polar and general anxiety disorder, who works abroad in Gibraltar. She has had suicidal thoughts and attempted a couple of times.

    Although she has managed to continue working, whenever she has had a bad episode , her doctor calls me and tells me I need to be there.

    Obviously my daughters problems are going to have an impact as I've often had to jeopardise my health and miss important appointments when I'm being told my daughter is going to take her own life.

    I never truly believed one of my sisters would hang herself. Yet she did.

    So although DWP probably don't care about these things, they all have had an impact and I don't want to be just another statistic, who died fighting.

    You've probably noticed I'm not good at brevity lol 

    Apologies again for any superfluous info.

    I've now got support from Leedds Irish health and homes, but like any org. They are stretched thin and my support worker admits knowing little aboat Pip.

    At least she has been honest about that though.

    I'm awaiting mh care but it's a 9 month waiting list.

    We filled in the review form today. The deadline is Aug 6

    My review would not have been due for another 4 years but for worsening of condition that tbh, were already challenging as it was.

    Thank you aagain for taking the time to read this and to reply snd advise.

    It's very much appreciated.

    Thanks again in advance @mikehughescq
    For any insights now you have my potted medical history.

    Stay well everyone 
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