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Hello and applying to appeal upper tribunal

cat_hugcat_hug Member Posts: 143 Pioneering
edited June 2020 in PIP, DLA and AA
Hi Everybody,
thank you for allowing me to join your group. I will apologise in advance if Im posting in the wrong group or board etc (thank you for your patience)

Nothing like diving in feet first, but I wondered if anyone has any advice about applying for leave to appeal Upper Tribunal?

After my transition from lifetime DLA award to PIP, I wasnt awarded daily living of PIP. Id been on middle rate care/low mobility on DLA for over 20 years.

Long story short, I lost my first tier tribunal (by one point). Ive received the Statement of reasons from the tribunal and believe I have grounds to appeal to UT as I think they may have erred in applying the law.

Does anybody know, do I need a special form to ask for leave to appeal Upper Tribunal or do I just write stating my wish to do so?

I am having trouble getting representation so am pretty much on my own with this. 

Thanks in advance for any help.

Best wishes, Cat X

Replies

  • mikehughescqmikehughescq Member Posts: 7,184 Disability Gamechanger
    You are definitely in the right place and will need form UT1 from https://www.gov.uk/government/publications/form-ut1-application-for-permission-to-appeal-to-an-upper-tribunal-judge-and-notice-of-appeal-for-social-security-child-support-tax-credits-housin and you get 2 bites of the cherry. 1 to your local HMCTS office and 1 to the national office for your country if the local application is refused. 

    There are 5 potential errors of law and whilst the common view is that these are hard to identify the truth is a little more complex. Almost all tribunals will err in law in some way as it's near impossible to not do so. However, that doesn't mean the error is material i.e. that it would have made a difference to the outcome and it doesn't mean that they're easy to identify for people representing themselves. 

    At this point I would consider getting advice. It's not ideal but try https://advicelocal.uk/ as a starting point. 
  • cat_hugcat_hug Member Posts: 143 Pioneering
    Thanks Mike, from advice Ive gained, it seems the tribunal may have erred in law in their application of the descriptor for 'social interaction'. The judge at my tribunal focused on interactons specifically omitted by judges Gray and Jacobs in UKUT 0352 (2017) RC v Sec state for work and pensions 2017. They awarded me no points on the basis I was able to interact with the tribunal :-( and had 'not appeared anxious' at the ATOS assessment
  • mikehughescqmikehughescq Member Posts: 7,184 Disability Gamechanger
    Yup. You’re on a winner on that point. 

    Just picture me swearing under my breath at this point. It’s been covered recently on another thread as I recall. The PIP 2 screws this up by talking about mixing with other people. The law, caselaw and guidance make it clear it’s not about mixing at all. 

    Can’t imagine why so many people who ought to score 4-8 points on this score nil. 
  • cat_hugcat_hug Member Posts: 143 Pioneering
    Honestly think the judge disliked me from the get go. She seemed put out that my. Appeal papers had cited some UT decisions/caselaw.

    She thrust spme papers across the table and asked 'where did you get this? Did you get professional legal advice?

    When I said no, Id had a 45 min interview with Welfare rights unit, she said no, I dont mean the stuff they sent, this is far more detailed, where did you get it?

    I explained Id looked online and had asked advice from disability forums etc. (The thing is, it took me a year to prepare for my first tier tribunal and the work I put in, was done over many weeks and months of extreme stress.

    The statement of reasons indicated this was used against me and actually said she believed I may have 'exaggerated the effects of my disabilities', or maybe the question was 'misinterpreted' as assessors have no reason to lie ... basically, the fact Id prepared such a detailed case for my appeal, showed tbere was little evidence of cognitive difficulties or 'brain fog'.

    In addition, I interacted well at my tribunal and hsd 'good knowledge' of my disabilities.

    They did not dispute the medical evidence which showed I have a life long neurological condition that will never improve and has no cure. Nor could they dispute the evidence that I had a brain aneurysm, two strokes, a heart arrythmia, post-stroke seizure and multiple injuries from my neuro condition. Yet she feels I may have 'exaggerated my symptoms'.

    Honestly, the tribunal was worse that the atos assessments and felt much more hostile.

    The DWP rep was already in there before my son and I walked in and it was nothing short of a grilling and questions that werent giving any chance to say in my own words.

    My son was told he could give evidence at the end, but as they ran overtime, the clerk had to tell the judge the next person was waiting outside, so we were rushed out and had to get the decision in the post.

    It truly didnt feel at all impartial, or fair. More like a grilling from the judge, the doctor and Dwp rep. The disability expert didnt get chance to say much and she was the only one who seemed to notice how nervous I actually was. (I spilled water over the desk as my ha ds were shaking so much!)

    It was a truly horrible experience! Getting the letter two days later, saying Id lost, I honestly felt like ending it. They have no idea how much they affect our lives.

    Feels so demeaning and humiliating. I have problems, like anyone who lives with a disabilitg or long term health issue does, but It doesn't mean my brain isnt functioning and I won't dumb down or pretend to be whatever their perception of what a disability'should look like'.

    (sorry, I'm ranting). This whole process has been so so hard and 2 years of fighting, with no end in sight... if I dwell on it too much, Im scared I will sink.

    From the moment my DLA ended and the pip transition began, my income was cut, overnight by approx £500 a month. (I lost SDP when I lost pip daily living).

    In the meantime, all the stress as you know, affects your health and you have to fight even harder, but with less power.

    Ive actually instructed my kids to keep on fighting if I dont make it to the end of all this.

    I know Im not alone and it angers me that so many of us have to suffer this way and there is no accountability.

    If I win my case at UT and gain that one extra elusive point, that will bring me up to 8 points for daily living entitlrment, it will be huge!!

    Obviously, I'll be owed a fair chunk in backpay for both Pip and SDP. However, at what cost?

    The stress of fighting this already since transitioning to pip, ive gone from size14 to 8 in 2 years. Need another cardio procedure, suffered a suspected stroke just this new year and continue to struggle on next to nothing.

    And everything hinges on tbis one little point. Getting from 7 to 8 points to meet the 'thresh-hold'. 

    Nobody is ever accountable for the immeasurable damage they do to us. I just pray I have the strength to keep fighting, because I know that's the right thing. Its about justice and dignity. How do you even convey this when a tribunal judge states youre exaggerating your symptoms?? Even in the face of overwhelming medical evidence? I do wonder if one has to be dead or confirmed as dying before we are deemed 'deserving'.

    So so sorry for the rant. Im just venting and please feel free to delete my post or whatever. 

    Guess I just need to wait and see if im granted leave now to appeal to the UT. My letter is submitted. We shall see...

    Thanks for listening (if youve managed to read this far) :-) 

    Best wishes.
    Cat
  • mikehughescqmikehughescq Member Posts: 7,184 Disability Gamechanger
    No need to apologise for ranting. A couple of observations. 

    1 - tribunals are rarely against claimants. The exact opposite if anything. What feels like the first time someone has delved into your case properly to one pets in os a grilling to another. However, like anything some combinations of panel members are occasionally toxic. Much of what you describe is in my view laziness rather than prejudice. Accusations of exaggerating symptoms or not being a credible witness have long been held as needing to be pinned on something specific rather than vague unease. In your case they went for the idea that you’ve acquired or used expertise to give a sheen of credibility to your case it might otherwise not have had. 

    To be scrupulously fair I have come across a very small number of claimants over the decades who have done exactly that but it does smell of laziness overall albeit that o wasn’t there and don’t know you and so shouldn’t rush to judgement in either direction really. However...

    2 - the alarm bells start ringing very loudly when I read that DWP were already in the tribunal room. Could you expand on that? Who went in; who was there and what happened? A PO being in the room as you enter us a clear cut error of law on the basis if a breach of natural justice. You can’t conclude wrong doing took place but it doesn’t have the required appearance of fairness. I hope that’s in your leave to appeal application because if I’ve understood that correctly then I’d be leading with that.
  • cat_hugcat_hug Member Posts: 143 Pioneering
    Thanks Mike,
    Yes, it is in my leave to appeal.
    When my son and I first entered the tribunal building, I gave my name at the desk and confirmed my I.D. etc.
    The security guy then introduced us to a clerk who led us into a waiting room.

    The clerk explained the DWP was there and that she had been there all day for hearings from earlier.

    We waited in the waiting room/area about 20mins and then were led into the room where the hearing was.

    I was aware of the panel and four seats at my side of the table. My son and I sat at the two on our side and the Dwp lady was at the right of myself. The judge, disability expert and doctor seated at the opposite side.

    When we went in, I dont recall anyone coming in after me, nor did we see anyone pass whilst we waited, so I think they were all already in when the clerk led us in. (he had told me the dwp was already there when we first entered the building before the hearing began).

    I'm trying to be fair in my thinking and give the judge the benefit of the doubt, insomuch as its confusing for me to try to explain the different symptom between how a narcoleptic or cataplectic attack effects me, or how the different (as yet not clearly diagnosed cause of) the more recent 'funny dos' and throw the arrythmia into the mix, trying to explain how these impact, is not easy to explain.

    When Im under pressure (in a situation like the tribunal or pip assessment) and get very anxious, my head just goes blank and I cant find the words.

    So I can forgive her for maybe not fully understanding what Im trying to convey when I know im not the best at articulating it f2f.

    I still felt like it was a grilling (again, subjective). For example, she referred to the Hcp report which said I have cataplectic attacks multiple times a day (ranging in severity from slight muscle weakness, to full bodily postural collapse)

    She then laboured the point and insisted on me giving a number.

    I explained its variable and dependant upon many factors, but she was very insistent about me saying how many times a day.

    I said 'on average' when pressed to which she replied, so, you fall to the ground approx x amount of times on most days?

    I again clarified the scope of severity of the cataplexy and so she said, 'oh, so you DONT fall to the ground six times a day, most days? Why would the hcp say you do, if you dont?

    In that sense, I felt very pressured about the questions and truly didnt want to give anything other than an honest depiction.

    When pressed about the frequency of cataplexy attacks (which I was asked specifically) I said I had on average a few a day, on most days.
    I didnt feel she understood properly that the severity of those symptoms can have a wide range, so I think that mightve been why she thought I had 'exaggerated'

    The other contradiction which to me was pretty glaring, was the HCP report had said that I had fallen asleep two times during my. Interview and she had to wake me.

    Later in the report, she said I had no problem with maintaining consciousness, no issues with cognitive processes and was alert throughout the assessment!!

    When I detailed an incident of breaking my toe whilst getting into shower, because Id lost my balance, she countered with 'well that could happen to anyone though couldnt it'.

    So I agreed that yes it could, but explained that even a second of muscle weakness, or loss of consciousness, can and often has, resulted me in injury or getting a bone fractured.

    I have documented fractures to toes, thumb, ankle, ribs, and breastbone. 

    That doesnt include times Ive had concussion, smashed teeth and broken nose, cuts, sprains and burns and other injuries that arent always needing A and E.

    I honestly didnt feel id exaggerated any of the symptoms and the SOR stated they didnt dispute any of the medical evidence, but again, Im aware that I can be a bit sensitive if I feel that im disbelieved. Its hard to actually have to verbalise all your complaints and makes you feel like a prize hypochondriac!!

    At the same time, they tell you a 'diagnosis isnt enough'. They want to know how it affects you. Giving an honest account in your own words, when someone is dissecting every word, isnt easy.

    My son was interrupted mid sentence too when he tried to speak and was told 'thats noy relevant', when he tried to detail an incident when he had to physically help me.

    I think in hindsight though, my case might well have looked 'too polished'. Having worked on it for a year and having so much hanging in the balance, I wanted to make sure everything of importance was there.

    I know they hadnt read it properly as there were questions asked of me, that were clearly within the evidence bundle and shouldnt even have needed to be asked.

    It just felt 'hostile' somehow. Not so much from the Doctor and def not the disability expert (she didnt get to ask me much at all), but mainly the judge and the PO.

    (sorry, Ive written war and peace again havent I?!) :smile:
  • mikehughescqmikehughescq Member Posts: 7,184 Disability Gamechanger
    Guilty as charged when it comes to writing War and Peace. You're not alone. 

    To be fair it does sound as those you had one of "those" judges. Not much you can do about it bar get to UT. 

    You'd need to be fairly certain DWP were there before you. If they were then there should be little debate on identifying an error of law. 

    As regards your son talking, often times the issue is simply that the role of other people in the room isn't well defined before starting. If he was there as an observer then he would be silenced if he made any attempt to speak. There's no supporting role as such so his alternative was to be there as a witness which means he would also be silenced until the tribunal were ready to hear exclusively from him. Unfortunately, tribunals and clerks are pretty bad at sorting this stuff out in advance so it will tend to go wrong and people will think they've been unfairly silenced when that wasn't the intention. 

    POs nowadays are less hostile than just ignorant of the law and the conditions being assessed. They have less rights than you in the hearing and can largely be ignored until they speak. 
  • cat_hugcat_hug Member Posts: 143 Pioneering
    Thanks for clarifying that Mike. Re. The presence of the PO. She was definitely already there, as we were told this would be the case before we even entered the hearing.

    I know it sounds weird, but I don't recall actually seeing any of the panel enter the room; they were just there when the clerk brought myself and son in. 

    We were told that my son could give his evidence at the end of the hearing. He was there as a witness and to support me.

    However, when it got to the point that Sam was allowed to speak, by that time, the hearing had run over and the judge actually looked up and asked the clerk if the next person was already waiting.

    The clerk confirmed they were, so the latter part of the hearing was very rushed and it felt as though we were being ushered out the door without the chance to properly address the other descriptors, or for my son to say what he had wanted to.

    He had been writing notes throughout the hearing and jotting down key points he wanted to address, but didnt get the chance.

    I was told they would post their decision within a couple of days as there wasn't time now (owing to next case waiting).

    At this point, the PO left the room at the same time as us and i know she left the building and didnt seem to be staying for the next hearing. (Unless they have a 'secret door' for PO to sneak back in :-) 

    I remember many years ago, helping a friend of mine who is a doctor and come to the UK from Spain to work here.

    He was denied benefits at the time when the 'habitual residency test' was just introduced and I helped him to appeal his case.

    I can recall that hearing and remember thinking at the time that it wasnt nearly as daunting as I'd expected.

    We won my friend's case and the tribunal overturned the DWP (or DHSS as it may have been) decision and allowed my friend his claim to benefits, plus back dated the claim.

    He'd been getting work through a medical agency prior to a brief spell when nothing was available in his speciality. It was during his time of not working, Id advised him to sign on whilst he was trying to establish himself in his chosen field at the time.

    The DWP had argued he wasnt entitled to claim as he had come from Spain and had no ties to the UK.

    This was at a time in the mid 90's when the govt were hot on clamping down on 'welfare tourism'

    Thus the introduction of the 'habitual residency'. Im going d little off topic here, but I do recall arguing his case and saying that the fact he had already gained employment at various hospitals around the UK, through agency work.

    Also, was volunteering in a local charity shop in between time, proved his intention to live and integrate into the country.

    Thankfully the panel agreed and allowed his appeal. My friend is still working as a consultant in microbiology/infectious diseases at Liverpool hospital all these years later.

    I do recall that panel being very different and sympathetic. Also, we were told the decision the same afternoon, with none of the 'rushed out on the end of a cattle prod' feeling that was evident in my hearing.

    Guess its much easier to advocate for a friend than it is for yourself though...? 

    I don't think my hearing for Pip appeal was typical however, from my understanding of other people's experience (and my own, as a rep for my friend's case)

    I think I just got unlucky this time and maybe fell foul of an overstretched, under resourced system?

    (War and Peace extended edition, V.2) Apologies.

    :smiley:
  • mikehughescqmikehughescq Member Posts: 7,184 Disability Gamechanger
    If I didn’t know I could guess this was north west and name the judge. The fact it probably isn’t just shows there’s more than one. 

    You won’t normally see the panel enter the room. They’re always there before you come in and never move. The DWP PO on the other hand should come in after you leave before you. Anything else is immediately problematic (for them). 

    A failure to hear from a witness if you win isn’t an issue. If you lose then it’s up for discussion at minimum.
  • cat_hugcat_hug Member Posts: 143 Pioneering
    When I asked my son his recollection of the hearing, he thought the PO was already in the room too. She left at the same time as us, but moved much quicker than I did :smiley:

    Do these tribunal judges travel over different regions @mikehughescq and are they employed in the role full time? Like court judges?
  • mikehughescqmikehughescq Member Posts: 7,184 Disability Gamechanger
    edited June 2020
    All are appointed to one region. Some are salaried. Some are fee paid i.e. part-time. Occasionally one might pop up in another region as cover but it’s rare.  
  • cat_hugcat_hug Member Posts: 143 Pioneering
    Do you know how long they take to decide whether to allow your request for leave to appeal UT?
  • cat_hugcat_hug Member Posts: 143 Pioneering
    'Guesstimate?'
  • mikehughescqmikehughescq Member Posts: 7,184 Disability Gamechanger
    Pretty random at the best of times. Depends on a clerk getting the application in front of a salaried judge. Clerk priority at present is co-ordinating telephone hearings. Salaried judges priority is working through previewing cases to see what can be decided on the papers. Could be days. Could be weeks. 
  • cat_hugcat_hug Member Posts: 143 Pioneering
    Thanks Mike, much appreciated
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