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Good Cause not accepted for missing PIP assessment

 

 

From the other side
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Has anyone represented at an appeal for the above?

What should be the formation of the Tribunal? Is it only the Judge as per ESA for missing WCA or can it be a full PIP hearing to decide on an award?

I know this might sound a strange question but I have been confused by a client in such a situation! Appeal papers were for non-attendance at PIP assessment and when he turned up to hearing, it was a full PIP 3 person panel who advised they were there to decide his PIP but they adjourned to let the client get representation!

     
Elliot Kent
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The 3 member composition is correct. There’s a bit of a quirk in the composition practice statement which causes this. Essentially, by default, only ESA appeals which “involve” the WCA are heard by 2 member panels, whereas all appeals which relate to PIP are heard by 3 member panels.

The UT has held that ESA good cause cases do not “involve” the WCA and therefore the correct composition is a single judge. The same point can’t be made about PIP good reason cases - because they still “relate to” PIP - so the correct composition is three members.

The Tribunal can direct that an ESA good cause case requires a medical member (or any other sort of member) if the case requires it but it cannot (validly) direct that a PIP good reason case should be heard by a judge alone unless the case only raises questions of law - which isn’t likely.

The panel will need to consider whether the appellant had good reason. If he didn’t, then his PIP claim is toast. If he did, they’ll need to decide what to do next - they could simply send the matter back to the DWP to carry on with the assessment process or they could decide the substantive question of entitlement for itself.

I think it would usually be more appropriate just to send it back to the DWP rather than try and shortcut the whole process. Maybe in a very clear cut case (e.g. a renewal where the original evidence is on file already and the appellant says nothing has changed) they could just decide it there and then. Honestly, I don’t have a good fix on which is more likely because I’ve seen so few of these good reason cases actually get as far as a hearing.

     
Mike Hughes
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I have one of these and I have to say my inclination is to win the good cause and request that the substantive matter is directed back to a Decision Maker.

     
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Thanks for the replies, at least I am now clearer that it is a 3 member panel for these type of cases.

I also think it would be best for a decision to be made regarding “good cause” then refer back to DWP for entitlement decision.

     
Dan Manville
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From the other side - 13 February 2017 02:35 PM

I also think it would be best for a decision to be made regarding “good cause” then refer back to DWP for entitlement decision.

That’s what happened in the case I’ve dealt with. Once it was referred back to DWP then to Capita they all got really confused; not knowing how to handle the re-referral. Be wary…

     
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Update to the initial scenario, I contacted HMCTS and I have now been advised that the case was wrongly listed to determine an appellant’s entitlement to PIP (03 Tribunal) and would now be relisted for an 01 Tribunal to determine solely the issue of whether he had good cause. I would have thought the judge would have picked up on that fact before the hearing!!

Still don’t know if that will be 3 member or 1 member Tribunal but will find out and report back after the hearing!

Is there a list available of the different numbered type of Tribunals as obviously they have stated 01 and 03 type Tribunal?

     
Elliot Kent
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It’s basically just tribunal speak for a 1,2 or 3 member formation. An 01 panel is a judge sitting alone.

As above, it doesn’t seem correct to list it before a judge alone based on the practice statement as it currently is. It would be helpful if someone can explain why I’m wrong…

If the Tribunal is wrongly composed (which assumes I’m right), your client is entitled to insist on the proper composition or to consent to an incomplete composition.

Edit as below

      [ Edited: 17 Feb 2017 at 09:25 pm by Elliot Kent ]
Mike Hughes
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I don’t think that’s correct. The numbers don’t relate to the numbers of people on the panel at all. They relate to the types of cases a judge can hear. So 03 would be just DLA and PIP. 04 I think is ESA. An 01 is most likely a judge sitting alone or a judge qualified to hear the technical stuff not just care needs etc.

Likely then that your case was listed for a fee paid judge sitting as part of a 3 who could do the second bit but not the first. I would guess it’s still a three but with an 01 judge. Could however have reverted to an 01 sitting alone.

It does make sense to list in front of a full tribunal so the substantive issue can be determined if appropriate but I suspect different regions have some discretion as to how they determine such things.

     
Elliot Kent
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Who heard your case Mike?

     
Jon (CHDCA)
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Previous comment on panel composition from Ariadne:
http://www.rightsnet.org.uk/forums/viewreply/7860/

     
Mike Hughes
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Elliot Kent - 17 February 2017 08:58 PM

Who heard your case Mike?

My case was heard by a panel of 3 but the listing was inevitably messed up so once the failure to attend had been addressed it was agreed that the substantive issue should be referred back if only because of lack of time. Wasn’t an issue as the case itself was straightforward enough.

I don’t know whether my judge was an 01 or an 03/04 though.