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PIP Appeal - Claimant’s reliability to give evidence due to lack of capacity/cognition

AW71
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Slater & Gordon

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Good Afternoon,

I’m due to represent a head injured client who has very complex issues due to frontal lobe damage. He is very volatile, erratic, has extremely poor decision making abilities and I have an expert who is saying that he lacks capacity (this report cannot yet be disclosed). He also suffers with the usual a lot of brain injured individuals have, poor memory, concentration, poor perception etc. We are disputing the fact that he has not been awarded any points at all in the Planning and following routes activity.

My query relates to 2 issues;
Firstly, the points that have been awarded to him for Daily Living, although they amount to the correct level of award (Enhanced) the dept. have failed to award him points in activities where he requires a high level of attention, namely Engaging with others face to face and making budgeting decision - even though we do not wish to dispute the level of award given for the DL would anyone advise mentioning the failure to award client points in the correct activities. My initial reaction would be to do so as the evidence to award him in these areas (his cognitive abilities) would then support the reasons for me disputing the planning and following routes activity.

My 2nd issue is that client, due to his problems, is threatening to jeopardise the hearing by telling the judge that we (his advocates) and his case manager are working against him, making out he’s worse than what he is and that he can walk for miles (he has already been awarded 4 points for moving around) and that he can plan journeys etc. etc. Does anyone know what the position would be in asking the Judge not to rely on client’s evidence - would it be wise to forewarn them of this in the submission? 

I’ve looked at the guidance booklet for Judges in relation to equal treatment and that’s given me some good pointers in relation to my 2nd issue but any further suggestions would be greatly received!

Many thanks,

AW

grant
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Welfare rights adviser - Sefton CAB

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Hi,

I would have serious concerns on the capacity issue. I note you say the report cannot be disclosed, but obviously you are aware that at the very least client’s capacity is questionable. Put simply if the client lacks capacity s/he cannot give any instructions and the court of Protection will need to appoint a deputy. It is particularly worrying since there appears to be a “conflict” as to how the Tribunal should run. I think I would seeking to postpone any hearing until the capacity issue is determined.

ClairemHodgson
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grant - 18 January 2017 01:17 PM

Hi,

I would have serious concerns on the capacity issue. I note you say the report cannot be disclosed, but obviously you are aware that at the very least client’s capacity is questionable. Put simply if the client lacks capacity s/he cannot give any instructions and the court of Protection will need to appoint a deputy. It is particularly worrying since there appears to be a “conflict” as to how the Tribunal should run. I think I would seeking to postpone any hearing until the capacity issue is determined.

What Grant said. 
why can’t the report be disclosed? the fact that it might not be ready to be disclosed to defendants in a PI claim is neither here nor there when the issues are wholly different.

you will have a capacity report to hand ( I note you are with Slater & Gordon, and I assume, therefore, that you/your supervising solicitors are pursuing a claim for your client) and assume that your firm have involved its CoP team and there is a deputy.

Have the deputy give a statement annexing the CoP documents

Having said that, if the lack of capacity is clear, it surely should be clear to the tribunal that the claimant cannot give any relevant evidence due to his lack of capacity…

Frankly, i doubt i’d be taking the client to the hearing. 

I would also do full written submissions with the relevant evidence attached and not leave it to oral submissions.

NeverSayNo
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AW71 - 18 January 2017 12:29 PM

...My query relates to 2 issues;
Firstly, the points that have been awarded to him for Daily Living, although they amount to the correct level of award (Enhanced) the dept. have failed to award him points in activities where he requires a high level of attention, namely Engaging with others face to face and making budgeting decision - even though we do not wish to dispute the level of award given for the DL would anyone advise mentioning the failure to award client points in the correct activities. My initial reaction would be to do so as the evidence to award him in these areas (his cognitive abilities) would then support the reasons for me disputing the planning and following routes activity.

On that particular issue I would advise to be ready to argue for the points you say he should have got but didnt. In my experience of local tribunals you rarely get in to a tribunal with them accepting, for example, the award of DL and entertaining this as a mobility-component-only tribunal.

We routinely state in submissions that we only want the tribunal to look at, say, mobility only for us to be given the “have you advised your client that we have the power to look at the whole award” speech. This is usually a pre-amble to the judge stating there are “serious questions” on the award of DL and asking if our client would like to withdraw.

So I dont go in to a tribunal thinking we have points or components “in the bag”, “off the table”, etc. but I will prepare to argue the case

(Incidentally I have tried asking several tribunals what exactly it is that is making them look at an award not under question - and I am yet to get a clear answer on any request.)

Mike Hughes
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NeverSayNo - your last paragraph. Yes, that. Exactly that.

I make a point of asking and will bounce with joy in my chair if I ever get something resembling a coherent answer. My best guess is that it translates as “one of us is in a bad mood/hates claimants” and nothing more profound than that.

past caring
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Agree with what NeverSayNo and Mike have said in the last two posts - i.e. that the risk of a tribunal wanting to look at an unappealed component is always there. However, I think the chances of them actually doing that are increased massively where the appellant’s rep is themselves trying to ‘open up’ the question of what points should have been awarded for the daily living component (already awarded at the maximum rate!) in order to establish a mobility case. In other words, you can hardly ask the tribunal to look in detail at the daily living activities whilst simultaneously asking them to ignore the question of whether the appellant is actually entitled to to the rate of the daily living component that has been awarded.

My view is that the way that conditions of entitlement have changed from DLA to PIP has made the activies in PIP much more discrete - it does not inevitably follow that a person who scores highly for budgeting and engaging with others must, as a matter of course, also score for the planning and following a route descriptors, even if this is by reason of cognitive impairment.

In fact, I would be very cautious of gambling the £82.30 p/w bird in the hand against the £21.80 bird in the bush in the first place. If I were to do it, I would do so with evidence that directly addressed the appellant’s ability to plan a route and to follow a route, rather than by trying to argue some non-existant automatic connection with daily living points I thought should have been awarded but weren’t…...

stevenmcavoy
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it doesnt come up much but i find tribunals are usually happy to only consider one component if thats all i have asked them to look at but just throwing in another option.

if you cant disclose some potentially crucial evidence for a separate reason then could it be worth withdrawing the appeal then asking for a review when you can?

there is a financial loss obviously so its a risk/reward balance.

Pete C
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If the report that cannot yet be disclosed is likely to have material bearing on the case couldn’t you ask for a postponement/adjournment of the hearing until it is available. If the tribunal are aware that this report exists and may be available within a reasonable period of time then they may take the view that they cannot deal with the case fairly and justly under Rule 2 of the FTT rules unless or until they have sight of the report.

AW71
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Many, many thanks for all your responses, all very useful.

We have considerable evidence in support of my questioning the daily living activities so we are fully prepared in that aspect. My point for asking this would be whether getting the points in the correct, or at least having these additional points would be useful when client comes to be reassessed and bearing in mind how DWP are currently handling reassessments, in that they are sending out simplified PIP questionnaire which just ask if there have been any changes since the last assessment, I think it’s important to get these points clarified and included in his current claim.

The appointment of a deputy is being dealt with and I have informed the tribunal of this in my submission and therefore given them the option as to whether they would like to adjourn until the issue of capacity has been dealt with.

So once again, many thanks for all your input and suggestions.

KR,

AW

Mike Hughes
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I have to say I don’t think the risk is especially increased. It will depend on what evidence you have to support the existing award.

I have taken a couple of cases and am about to run a third, slightly dissimilar, case where the only thing at issue is the amount of Daily Living points and there’s no consequence for the rate i.e. already getting standard or enhanced and the decisions won at appeal didn’t impact that. They just ensured the full range of the appellants disabilities was recorded. Hugely useful for when the renewal goes wrong somewhere down the line and some DM says “but you never mentioned that 5 years ago” etc.

The amount would have made no difference in the first two cases to the award of Enhanced Rate for Daily Living for an ongoing period. It was simply a point of principle to establish that specific issues were there and should be fully recorded. Had the “you’re risking it all” lecture and simply ignored it both time because the cases were solid and a UT would have ripped apart any FTT who’d reduced the award. In part you need an assertive claimant but we also need to be better in both our assessment of so-called “risk” and the way we express that to clients. It’s very easy to use language which makes a claimant just sufficiently unsettled to not proceed despite there being value in getting it right.

The case I’m about to lodge is different in so much as the 2 extra points will move the appellant from Standard to Enhanced. Been a huge battle to get them onto DLA and then PIP in the first place but client can see the worth in it and is angry about the obvious problem with the decision.