PIP APPEAL - Page 2 — Scope | Disability forum
Please read our updated community house rules and community guidelines.

PIP APPEAL

2»

Comments

  • ChrisG
    ChrisG Community member Posts: 23 Connected
    Unlike the judges, I’ll take on board anything you say that makes sense, and not just disregard everything you say because I disagree with this point. 
  • ChrisG
    ChrisG Community member Posts: 23 Connected
    What assumptions have I made?  My focus is not on picking apart the HCP report, I just said it’s important to do so. Not just for using at the appeal.  You don’t have a clue about my approach as I have not mentioned it. Your the one making all the assumptions not me, including that my focus is on the HCP report and my approach is simply based only on picking apart the report.  Maybe it won’t necessary but I’d rather be prepared if it is and not just assume that it won’t be.  
  • eeyore19
    eeyore19 Community member Posts: 10 Listener
    Gentleman please..... Leave it there... We are all on here for our own reasons... And EVERY case it different Good luck on your tribunal ChrisG
  • ChrisG
    ChrisG Community member Posts: 23 Connected
    That’s fine but proving a HCP wrong will not get you PIP. You need to focus on the strength of your own evidence.
    This is the problem. I don’t think anyone has said that proving the HCP wrong will get you PIP. That is just your erroneous assumption that that is what people think.   
    Picking apart the report is just one part, not the only part.  

    ChrisG said:
    But if the DWP have 6 and I have 5 and I could take them down to 3 then it helps a lot.  Username_removed said:
    Yes, but that isn’t going to happen. In a tribunal they will either accept there are flaws in the HCP report or they won’t. The nuances of that largely don’t interest them. There’s not enough hours in the day to pick apart the issues with HCP reports. They will concentrate on the claim pack; your medical and anecdotal evidence and your verbal evidence on the day. The combination of those will either give your evidence weight or not. If they think you’re inconsistent or have little to back up your assertions then the little weight they give to a HCPs report will matter not. The weight of your own evidence will fall short. 


    You said   -“Yes” - agreeing with me that in certain cases it would help a lot.
    Then you say - “but that is not going to happen” - an assumption by you not me. 

    I agree that they will concentrate on the claim pack, medical evidence, and the verbal evidence on the day.   I never said I thought they wouldn’t.  

    However, to agree that it can help a lot in certain cases and then advise people not to do it is not the advice I’d expect from someone with your experience.  That is why it does not make sense to me.  If there is any chance at all that it will help it is worth doing. 













  • ChrisG
    ChrisG Community member Posts: 23 Connected
    I’ve highlighted every assumption and explained why it’s wrong in subsequent posts. I don’t propose to repeat myself. 


    What you have highlighted is your own assumptions about what you think I said.  

    It’s a dangerous game to obsess too much on a submission from a decision maker. It’s computer generated with input from a DM where they select from a number of multiple choice paragraphs. Ditto the caselaw. It also means you’re walking into a tribunal assuming they are stupid and don’t know this. That never plays well. I’ve never read a DWP sub which wasn’t riddled with contradictions but highlighting that is just the same as picking apart a HCP report. It gives less weight to that evidence but it doesn’t mean you will win the appeal as that will depend on the strength of your own evidence.
    Picking apart the report is not obsessing. It is just being prepared.  I’m guessing that you obsessed too much on doing this in your job and had a few dressing downs by judges for it.  

    Picking the report apart and being prepared to refute it does not mean I am assuming that the tribunal is stupid.  I’m guessing that this was what you did and are now projecting your mistakes on here.  There are many things in the report that are accurate.  I don’t want the tribunal to dismiss every part of the report.  Just the bits that are not true.  They were not in the room and will not be able to instantly know what is a lie and what is not.  
    You say “but it does not mean you will win the appeal” 
    I never said picking apart the report will win an appeal. But for some reason you go on as if I did.  You need to stop creating straw man arguments and misrepresenting me to try to avoid admitting that you were wrong. As I pointed out earlier you agree that that it can help a lot in certain cases.  You just can’t seem to admit that your original advice wrong.  






  • ChrisG
    ChrisG Community member Posts: 23 Connected
    There you go again. 
    Most tibunals.   What about the ones who don’t?  
    Why would you need to win at UT if the tribunals are able to figure everything out themselves beforehand?  

    Its like saying most burgers won’t target your home so you don’t need to bother locking your doors.  
    Or. Most journeys I don’t get a flat tyre so I won’t bother having a spare in the boot.  

    If they do then fine,  you don’t need to use it.  But being prepared for that time that you might is better than leaving it to chance, in my opinion, you obviously disagree.  

    Is that UT decision online to view? I’d like to see how you battered him because if your right I might end up needing to go to the UT myself.  

  • ChrisG
    ChrisG Community member Posts: 23 Connected
    I won’t need to do much at all.  I’m getting prepared for any questions that they might ask. The HCP report has a lot of the evidence that will go in her favour. That is why I’m picking it apart and not just saying the whole thing is a pack of lies.  

    You seem to think I’m going to storm into the room tell the panel to shut up and just listen, tell them that I have picked the HCP report apart because I think they are too thick and stupid to do it thenselves because they can’t form a sentient view in advance. Appeal won no need for the stupid medical professional to ask any questions iv already gone through it all and she qualifies for the enhanced rate of both.  

    You keep saying my whole approach is based on picking the report apart. It’s not.  My approach is for me to actually to do very little.  When they speak to her they will get all the answers they need.  The evidence speaks for itself.  

    I put most of the issues into the grounds for appeal so the tribunal will already have it in their bundle.  

    The DWP had to respond to the grounds and had to deal with the issues raised.  

    I don’t think I know it all and take on board any advice given, as long as it makes sense. 

    So to bring this to an end in an amicable way and show that I’m willing to take advice I will ask for your advice regarding a specific aspect of her case.  That is if your willing of course.









  • ChrisG
    ChrisG Community member Posts: 23 Connected
    Regarding activity 3.   She has Cerebral Palsy with spastic diplegia. 

    The HCP says in her report 

    “she undertakes exercises reccommended by a physiotherapist at home” ( 5 times in total )

    However under managing medication and therapy she advised descriptor 3(b) 

    The time the exercises took was not recorded neither was the fact that she needed assistance to do them. There was no justification as to why the exercises were considered to amount to therapy. 

    I pointed this out in the grounds for appeal.  

    The HCP failed to record in the report the duration of the exercises and the manner in which they need to be carried out.  The total time the exercises take amount to 4 hours 20 minutes a week.  The exercises require me to hold her legs and are carried out as the physiotherapist recommended.  Therefore she believes she is entitled to 4 points under descriptor 3(d) for undertaking therapy at home that takes more than 3.5 hours but no more than 7 hours a week. 

    The DWP response was

    “The decision maker considers that xxx—xxxx has to complete physiotherapy exercises on a daily basis. It would be considered that physiotherapy exercises would be provided to an individual to complete independently without help from another person. If xxxx—xxxx needed help to hold her feet then it might be considered that a suitable aid or furniture for example could be used to hold her feet in place to allow her to complete her exercises unaided. “


    Obviously he meant to say unassisted because if she used an aid as he suggests it would not be unaided.  

    The HCP did not consider it, the decision maker did.  The decision maker is not, as far as I can tell, medically trained and therefore is not in a position to suggest potentially dangerous alternative methods for carrying out the exercises. 

    It is not the role of the tribunal to do this either.  

    There is a similar situation in PM v SSWP (PIP) [2017] UKUT 0154 (AAC) ( paragraph 7-8 ) where the judge explains that it is not the role of a tribunal to go behind the back of those treating the appellant.   


    As there is no dispute regarding the fact that the exercises are done, there is no dispute that they count as therapy for the purposes of PIP the DWP’s only objection is that she does not require assistance.  

    They do not mention supervision or prompting however she would definitely need prompting and supervision if she tried attempting them unassisted using furniture as they suggest as an alternative.  

    The 3 extra point would mean she was entitled to the enhanced rate of PIP


    What would your advice be on how to approach this?  





  • Debbie2000
    Debbie2000 Community member Posts: 1 Listener
    Do do you mean appeal or tribunal? I got welfare rights from council to help me through whole process. Get f2f advice please
    Can I ask what f2f is please ? 
  • debbiedo49
    debbiedo49 Community member Posts: 2,904 Disability Gamechanger
  • Pippa_Alumni
    Pippa_Alumni Scope alumni Posts: 5,793 Disability Gamechanger
    Hi everyone, please ensure any comments are in keeping with our community guidelines. Words read online don’t always convey tone or context and so may be misinterpreted, therefore it is important to consider language and audience. We want the community to be a safe and supportive place. Please make sure your messages respect other users’ views and suggestions, even if you don’t agree with them. 

    Take care to present your views tactfully and remember that humour may be misinterpreted.  If you have any questions, don’t hesitate to get in touch.

  • ChrisG
    ChrisG Community member Posts: 23 Connected
    Thank you for taking the time to reply.   

    I think both caveats will be covered by the evidence of the physiotherapist.  However, even if they took the view that assistance was not required for the whole duration. She still should qualify for needing supervision. 

    She previously had a DLA award of HRMC and MRCC ( for needing constant supervision throughout the day to remain safe)  If I read YM v SSWP (PIP) [2018] UKUT 16 (AAC) correctly, the tribunal must explain why they believe the task can now be completed ‘safely’ without supervision. 

    As the only evidence regarding duration and type of exercises comes from her, the only way I can see the tribunal doing this is by saying that they believe she is lying about the type and duration of the exercises she does, and could instead do them in a particular way that would, in their opinion, require no supervision. Which is not their role as the judge in PM v SSWP explains.

    If supervision is needed for the entire task then she will qualify for 3(d).  

    Can you see any reason why 3(c) would not be satisfied?

    If I’m arguing for 2 extra points in activity 1 but that will only get her to 11, and activity 3 on its own could be enough for enhanced rate to be awarded, would they start with activity 3 or go through them in order? 
  • ChrisG
    ChrisG Community member Posts: 23 Connected

    The end of paragraph 20 of YM. ( My underline and bold )

    “In PIP, daily living activities 1 (preparing food), 2 (taking nutrition), 3 (managing therapy or monitoring a health condition), 4 (washing and bathing), and 5 (toilet needs) all contain descriptors where points are scored if supervision is needed to accomplish them. “Supervision” is a defined term: it means “the continuous presence of another person for the purpose of ensuring C’s safety.” Daily living activities 1 to 5 are everyday activities: a claimant is likely to have been engaged in most if not all when awarded the MRCC. If she needed “continual supervision throughout the day ... in order to avoid substantial danger to herself or others” the question is posed, on what basis is it thought that she can accomplish daily living activities 1 to 5 “safely” without supervision. There may be answers; but the question is posed and answers need to be given in accordance with R(M)1/96.”


  • ChrisG
    ChrisG Community member Posts: 23 Connected
    Hi Mike.  Finally got a decision from the tribunal and would like some advice on how to proceed.  

    The first hearing was scheduled for 2pm.  On the morning of the appeal at about 10am I received a phone call with an offer of the enhanced rate of the daily living component and the standard rate of the mobility component. She was originally awarded just the standard rate of daily living and no mobility. 

    My partner had already informed them that she would not be attending because there was no one else to accompany us and it was likely that she would need to leave the hearing early because of her medical conditions and instead wanted me to go and put her case to the tribunal to avoid any possibility of delay because it would have meant that the hearing would have to be adjourned because I would need to leave as well.  No objection was raised to me attending alone at that point. 

    Because there was no explanation of what descriptors were chosen or why and there was a lot of evidence, in my opinion, that she should be awarded the enhanced rate of mobility I said that I would still attend the hearing and put the case to them. Again no objection was raised but  I was told that if she didn’t attend the judge might not hear the appeal and adjourn. 

    At about 11:20 am I received a call telling me not go to the hearing because it had been adjourned.  

    I received a letter from the tribunal a few days which said that the appeal was heard and then adjourned because “she clearly needed to attend an oral hearing”.

    I was sent a reply to a complaint I made that contained only the record of proceedings. The record of proceedings states that the DWP representative was present at the hearing and handed 1 new document to the tribunal.  

    My understanding is that the DWP representative is not allowed to be in a room alone with the tribunal prior to the hearing which was scheduled at 2pm.  The adjournment happened at 11:40 am, over 2 hours before the scheduled hearing time.  

    Rule 29 states that they need to give 14 days notice of any changes to the date and time of a hearing, including adjournments.  

    I take that to mean that the judge needed to wait until 2pm, open the hearing, then  adjourn only after she had not turned up at the scheduled time.  

    If I had turned up at 2pm I believe that they would have had to hand over that evidence and then they would not have been able to ambush her with it at the next hearing after adjourning.

    I suspect that the handing in of this evidence is what caused the early adjournment. 

    I never received that evidence and the new tribunal used that evidence at the new hearing.  

    I plan to appeal to the upper tribunal and would like to know if this is likely to be an error of law. 








Brightness

Do you need advice on your energy costs?


Scope’s Disability Energy Support service is open to any disabled household in England or Wales in which one or more disabled people live. You can get free advice from an expert adviser on managing energy debt, switching tariffs, contacting your supplier and more. Find out more information by visiting our
Disability Energy Support webpage.