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Tribunal Statement of Reasons
Just had the SoR for a DLA to PIP appeal that was unsuccessful.
Despite raising during the appeal hearing, as a representative, that the panel were asking questions relating to current situation as opposed to what existed some 10 months previous at the PIP assessment, it would appear that their decision is largely based on what was current.
Having been to a number of other appeals it has generally been the judge who has stressed that they are looking at the case as it was when the original decision was made.
Can anyone point me towards any legal text that would clarify what the position should be before I discuss with the appellant whether to request appeal to the UT.
This is rather fundamental stuff:
S.12 Social Security Act 1998:
(8) In deciding an appeal under this section, the First-tier Tribunal–
(a) need not consider any issue that is not raised by the appeal; and
(b) shall not take into account any circumstances not obtaining at the time when the decision appealed against was made
R(DLA) 2/01 and 3/01 then hold that evidence post-dating the decision can still be taken into account, but only to the extent that it sheds light on matters at the date of the decision.
Social Security Act 1998 section 12 (8):
In deciding an appeal under this section, the First-tier Tribunal -
(b) shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.
Often referred to as ‘down to the date of decision’. That decision being the original decision, not the ‘mandatory reconsideration’ decision.
However, it is not unusual for a tribunal to ask an appellant if there has been any change since the date of decision. If not their description of their current circumstances can be taken to reflect their circumstances down to the date of the decision under appeal. There is nothing inherently wrong in a tribunal taking this approach. In a statement of reasons one would expect some brief record that they had taken that approach.
If the appellant’s needs / circumstances have changed then the tribunal must address the circumstances down to the date of decision. If the clients needs have increased that could work to their disadvantage or to their advantage if they have reduced. If there had been changes that may have been significant enough to change the outcome of the appeal and the tribunal base their decision on the current circumstances then that decision may be open to challenge as ‘erroneous in law’ for that reason.
By way of example I had a PIP case a few weeks ago (in which DWP were seeking to remove an existing award) where the tribunal refused (after extended discussion) to take into account a significant change of circumstances that occurred some months before the date of decision under appeal which they were clearly required to do under the provision!
Only before the introduction of the SSA could a tribunal take into account the circumstances including any changes down to the date of the hearing.
If the appellant was asked if there had been a change in condition in last 10 months, and they said they were the same, then i believe tribunal can infer that if you could do A B or C last week then you could do them on date of decision?
edit. peter and i posted this at same time! Great minds etc ????
Many thanks for the quick responses.
There is very little reference within the SoR on the evidence used for the initial decision, which was primarily based on the HCP assessment, or what was put in the submission. Just lots of references to what was happening at the time of the appeal hearing.
The only major change the submission referred to was a change in area of study at college, the appellant was 16 when invited to apply for PIP.
At the hearing the primary change we reported was the recent concerns of the specialists managing the ADHD medication with respect to potential adverse reactions was raised with.
Many thanks for the quick responses.
There is very little reference within the SoR on the evidence used for the initial decision, which was primarily based on the HCP assessment, or what was put in the submission. Just lots of references to what was happening at the time of the appeal hearing.
The only major change the submission referred to was a change in area of study at college, the appellant was 16 when invited to apply for PIP.
At the hearing the primary change we reported was the recent concerns of the specialists managing the ADHD medication with respect to potential adverse reactions was raised with.
I assume from this that this was a new claim for PIP which was refused for a claimant (who may or may not have had an award of DLA before age 16? - which is not directly relevant - but see below).
I also assume that he only changes in circumstances were:
change in area of study - that would not be directly relevant unless, for example, he had to change the subjects studied or reduce the hours of study due to a change in his / her needs / ability to cope with the course / problems with attendance due to the condition & needs etc.
Concerns about potential (rather than actually occurring) adverse reaction to medication - which would not appear relevant unless that concern illustrated there had been an actual change in circumstances / needs.
So I assume that in practice there was little or no change in your clients needs from the date of claim through to the hearing? If so there would appear to be nothing wrong in the tribunal basing its findings on your clients circumstances at the time of the hearing.
The question would then be has the tribunal made adequate findings of fact about your clients needs, addressed any discrepancies in the evidence before it (HCP report, GP etc reports, clients & carers oral evidence) then given clear reasons for its decision from those facts. If not there may be grounds to argue an error in law.
If there was a previous award of DLA, particularly if it was at a higher rate and / or the DLA decision, claim evidence etc was referred to in the DWP submission, or the appellant raised the level of the DLA award verses the PIP refusal, the tribunal should explain (at least in brief) why it did not consider that evidence relevant or consider adjourning to obtain that evidence - unless there had been a significant change in your clients needs such that that evidence would have been of little relevance. A tribunal should explain (at least in brief) why its decision was so different to the level of the previous DLA award (baring in mind that the qualifying criteria for DLA & PIP are different).
A tribunal’s SOR should be such that an appellant can understand why a tribunal made the decision it did for the reasons it gave from the evidence before it. See CPAG Handbook p1375-6.
I have some difficulty when my clients are asked, usually by the medically qualified member whether their condition(s) have improved, deteriorated or stayed the same since the date of decision because the question is loaded.
1) if C answers it’s worse. It means at date of decision the condition(s) were “better”
2) It’s better? if C answers it’s better, It means at the moment the condition(s) have improved. C goes on to describe conditions as now and talks their way out of an ongoing award
3) It has stayed the same. This is the most realistic assessment For example, a C Lives with arthritis lives with it constantly so changes are gradual not distinct usually.
I point this out to tribunals and that the asking of this question is prejudicial. In other words it tries to set a trap for my C. I go through the potential question with C. In the main, the most accurate answer is, “ It has stayed the same.”. This then legitimises contemporaneous questioning.
What do others think, please?
I tend to advise my appellants against the obvious line that they’re much worse since their claim as this is a very simply recipe for a tribunal to deny the current claim and invite them to go away and make a new one. However, of equal importance, and I am so bored of reminding tribunals of this, is the fact that a change in the condition is rarely relevant. A change in the functional consequences of a condition is all that matters. Almost all medical conditions vary over time (yes, I am equally bored of claimants who think the most unique aspect of their medical condition is that “it varies”. They all do!) but that usually has little impact on the functional consequences to the extent that it might move them in or out of specific points scoring activities.
I try to avoid this situation by putting as much detail as possible into the client’s Request for Mandatory Reconsideration, as this is virtually contemporaneous with the original decision.
I can then refer back to this as evidence a year or more down the line when the appeal is actually heard.