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PIP appeal, Upper Tribunal and error of law?

Florine
Florine Community member Posts: 62 Courageous
in PIP, DLA, and AA

Hello.  I thought I read somewhere that it might constitute an error of law if a PIP tribunal asks for evidence of previous related benefits decisions from the DWP, but then goes ahead and decides without that information anyway - but I've no idea where I read it.  Can anyone confirm this, or if you're not willing to do so, point me in the direction of relevant decisions or something, please?

What has happened in this particular case is that the DWP did not respond to the request at all.  I notified the tribunal that I'd put in a GDPR request to obtain the information, but the tribunal has gone ahead and decided before that information was sent.  The GDPR papers contain a recent re-assessment - no idea where it came from - which gives a higher PIP score than that awarded by the tribunal.  I'm thinking that in view of the fact that Christmas is going to get in the way I might need to request a statement of reasons, even if only as a precaution.

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Comments

  • poppy123456
    poppy123456 Community member Posts: 53,939 Disability Gamechanger
    Hi,

    I can't answer the question about the error in law but if what you found was just the assessment report and no decision made with it then assessment reports are just a recommendation and nothing more.

    May i ask if you were awarded by the Tribunal and if so what award did you receive?
    I would appreciate it if members wouldn't tag me please. I have all notifcations turned off and wouldn't want a member thinking i'm being rude by not replying.
    If i see a question that i know the answer to i will try my best to help.
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  • Florine
    Florine Community member Posts: 62 Courageous
    edited December 2019

     Thank you, Poppy.  (And my apologies - I was getting gateway errors when I tried to post, so assumed my original post hadn't gone through, and have posted a revised version.  Can it - and the others I've apparently posted :( - be deleted to avoid confusion?)

    No, it looks like a new PIP reconsideration (Form PA6, dated between the two sessions of the tribunal) - that's what it refers to - but there's no indication of why it was carried out.  It gives points for at least standard-rate personal care in addition to the standard-rate mobility which the tribunal awarded, so it would obviously be in the DWP's interest not to have it passed to the tribunal.

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  • poppy123456
    poppy123456 Community member Posts: 53,939 Disability Gamechanger
    @Username_removed could you advise here please? Thanks in advance :)
    I would appreciate it if members wouldn't tag me please. I have all notifcations turned off and wouldn't want a member thinking i'm being rude by not replying.
    If i see a question that i know the answer to i will try my best to help.
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  • Florine
    Florine Community member Posts: 62 Courageous

    Mike, thank you very much - that's very helpful.  I was asking simply because various advice sources I would normally rely on may not be active at this time of year, and I didn't want to trip up on possibly needing to take action over the Christmas period.

    Yes, sorry, I did mean an SAR, since it seemed the only way of getting hold of the information the tribunal wanted after the DWP ignored its request: I wouldn't have said it was speculative - and I certainly didn't expect the PA6!  It's headed "Changes to previous advice to DWP", so presumably it was the DWP which asked for it.  It seems odd to me as a layperson that they would reconsider a reconsideration so late on, but it may be a regular occurrence, for all I know.  I assume the revision is from the original date of claim since it doesn't state anything to the contrary, but it's useful to know that it is only a recommendation.

    The PA6 changes from zero points originally being awarded in both categories to awarding low-level points in half-a-dozen personal care descriptors and 8 points for mobility.  The tribunal had awarded the 8 mobility points, and some slightly higher-level points in a couple of care descriptors, but not enough for an award in the personal care category.

    Once again, thank you for your time and insights, @Username_removed

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  • Florine
    Florine Community member Posts: 62 Courageous
    Username_removed said:

    On balance I’d go for the set aside. I simply wouldn’t assume it will be a forgone conclusion. 

    Getting back to this, Mike (or anyone else), what is the procedure for a set-aside, please?  Is it via the statement of reasons route, or is it a completely separate issue?  I'd never seen anything about the possibility.  And what would setting aside the tribunal decision actually involve?  Would it cancel it, delete it, replace it ...?  The tribunal decision does occasionally give higher marks in some categories than the PA6, but presumably you can't cherry-pick between the two.

    And if the tribunal decision is set aside, does that mean you are likely to have to go to another tribunal? (unlikely to be a viable option in this case) :(

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  • Florine
    Florine Community member Posts: 62 Courageous
    @mikehughescq, thank you very much for that - I don't know why I didn't get a notification of your reply when I've been getting them for threads I've simply replied to!  Sounds as though 2(a) or (b) would apply, but that we'd now be out of time for doing it that way because of Christmas getting in the way.
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