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Grounds for UT appeal - PIP

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Va1der
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Requesting permission to appeal to UT, looking for some clarification on the grounds I’ve identified. Sorry for the light novel, but hoping some of these questions can provide useful info for others too.

The basis of the UT appeal is a case where the FTT awarded 10 points for Mobility, under 10(d), based solely on the client’s anxiety, but awarded no points for DL (DWP had awarded 0/0).
I found it surprising that they recognised severe anxiety, but still didn’t award any DL points, so requested a SOR.

A point of contention, brought up multiple times by the panel during the hearing, was the lack of evidence for DL activities (client’s GP had dragged their feet/my fault for not asking for a postponement as I didn’t think it would be hugely useful).
The only available evidence was an undated 4 line GP letter, effectively stating “the client is too anxious to go out”, and a recent ESA decision awarding 14c, 15c and 16c (with medical evidence again effectively stating “too anxious to go out”, but also specifically agreeing that the client struggles with social contact and unplanned changes).

The medical professional asked the appellant at 3 separate occasions about preparing food, and admitted that the lack of evidence had left her puzzled. Every time the client stated that she does not cook at all due to her anxiety, other than using a microwave.
I was not aware at the time that cross-examination was an issue, but I think now that that could be an error of law as well..?

The SOR states the panel found the DL evidence ‘less clear and straightforward, and accordingly less persuasive’. No clarification as to why they found it as such.
Error of law because they didn’t address the real issue - an absence of evidence, rather than clarity. As above that seems to have significantly influenced their questions.

Still have to get the actual points for at least standard DL, so for the descriptors:

1(b/c): SOR states ‘mental health does not cause risk when using an oven’.
- Safety wasn’t the issue, her anxiety/fear prevents her from using a cooker at all

3(b): Client states needs reminders from family/friends/alarms, or would forget. FTT: “most people benefit from reminders”
- i.e. didn’t consider the client’s specific needs.

4(c): Client showers every Sunday, will only shower more often if prompted. FTT: “doesn’t leave house often (due to anxiety), so not ‘reasonably required’ to shower more.
- Tribunal shouldn’t consider adaptive behaviour by the client when considering what is reasonably required

6(b): Client only wears 2 sets of clothing, regardless of weather. FTT : “no suggestion she doesn’t wear appropriate clothing, sticking with familiar clothing doesn’t suggest functional limitation”.
- Didn’t explore the issue at all.

9(c): FTT: “...finds going out very difficult, thus limited opportunities, still able to establish some relationships.”
- Again taking into account adaptive behaviour by the client - as far as I understand her, social engagement is part of the very reason the client struggles to go out!
I’m aware there isn’t a direct link to ESA activity 16, but the wording is close. FTT made no reference to the ESA FTT decision or that evidence.

10(b): Backstory: Client is proficient with numbers, considered career as accountant. Had life event 1.5 years before PIP application - separation, reduced income etc. FTT: “struggled to manage on reduced income, this is normal after live event”
- Client still gets weekly help from her (social support) friend to budget, pay bills etc. How long does a separated single mum have to struggle with finances before her mental health can be taken into account?

(the quotes aren’t exact)

All in all I think the FTT festered on the absence of clear evidence in the beginning, and rather than adapt and rely on info from the client, they took an adversarial approach throughout the hearing.
The client subsequently complained (not in writing) that the questioning was too harsh etc.

And a final question: Do I need caselaw references in the application to appeal? I remember reading most of the arguments above in various decisions, but can’t find them all at the moment.

Elliot Kent
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I dunno - it isn’t screaming out “error of law”. I would want to see the SOR.

Have you spoken to Martin? https://cpag.org.uk/welfare-rights/upper-tribunal-assistance-project

[ Edited: 17 Feb 2020 at 11:52 am by Elliot Kent ]
Va1der
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As far as I understand, the UT assistance project (sadly) isn’t available in Scotland.

Is there anything in particular you see as lacking?

Elliot Kent
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Va1der - 17 February 2020 12:50 PM

Is there anything in particular you see as lacking?

Sorry, I’m not saying that your grounds are lacking - just that your argument is very much of the “insufficient facts and reasons” flavour and its difficult to judge whether that is likely to succeed without seeing what reasons the Tribunal actually gave.

Chrissum
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Arguably there appears to be some misapplication of regs 4&7 in some of the descriptors - with descriptor 4 in particular standing out - but the question is whether these would score sufficient points to warrant an award. Anxiety at leaving the house, though highly relevant to descriptor 11, does not necessarily indicate that prompting is required in other areas unless the evidence is that this anxiety is so high at the thought of this that they can’t wash or dress. For example someone who is agoraphobic may score points under 11 but not necessarily under other descriptors which are more “home” / indoor based Was consideration given to adjourning for FME, and if so was the reason not to outlined? Just a few thoughts…

Va1der
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Adjourning for further medical evidence was never considered.
This was one of my first appeals, and if I’d been savvier I might have intervened to request it. Every day is a school day.

If there is an error of law on the general procedural side of things, i.e. the tribunal took an adversarial approach, cross-examined, and/or didn’t take approach the evidence(or absence of) as they should, am I right in thinking that all I have to do is provide some reasonable belief that a new tribunal might award at least 8 points, if it didn’t take the same approach?

I’ve had a listen to the recording, and the medical professional makes it quite clear that she is suspicious about the lack of evidence about DL activities, and at the same time repeatedly reminds herself: “oh yeah, I know why the GPs didn’t answer that question” [because it was never posed]. The client, unsurprisingly, hasn’t told the GP what she wears on a day to day basis. None of this is reflected in the SOR.

My client was also quite clear about why she doesn’t cook etc., but this again isn’t reflected in the SOR - i.e. 4 and 7 doesn’t seem appropriate to look at, because the tribunal didn’t even begin to consider that side of things, just stated that there was no functional limitation.

I might be barking up the wrong tree…

Paul_Treloar_AgeUK
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There’s reams of case law about the weight that should be given to a client’s evidence and so if the FtT are basing their whole line of reasoning on the fact that there was nothing else to substantiate what your client was telling them in evidence, I’d say that’s potentially an error in law.

Elliot Kent
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Va1der - 17 February 2020 04:04 PM

If there is an error of law on the general procedural side of things, i.e. the tribunal took an adversarial approach, cross-examined, and/or didn’t take approach the evidence(or absence of) as they should, am I right in thinking that all I have to do is provide some reasonable belief that a new tribunal might award at least 8 points, if it didn’t take the same approach?

You need to show the error was material - i.e. that it might have resulted in a different outcome. If the error is in the treatment of activity 3 only and your client might have scored 1 point only if the error wasn’t made, then its immaterial.

If there is a pervasive error which goes to all of it - e.g. as Paul suggests, rejecting all of her evidence solely because it isn’t corroborated - then I don’t think you need to specifically tie it in to descriptors.

Mike Hughes
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Got to agree with Paul here. 4, 6 and 9 are leaping out at me but that’s by the by. The issue is really that a tribunal had uncorroborated evidence which would only be unacceptable if it was inherently unlikely or contradictory. What then specifically led them to the conclusion that either applied? If there’s no mention of what then I think you have your most likely error.

All that said, and I’m sure others know what I’m going to say here, this is what comes of us focusing on medical evidence as the beginning and end of a case and not challenging tribunals who do the same. It’s always good to read up on the balance of probabilities. I’ve probably won as many cases on that as I have with actual definite facts over the years. It’s not an abstract thing. It’s a very real and relevant concept that it’s all too easy to forget as benefit issues and all who deal with them become more prescriptive.

As regards cooking I would think 2 examples of what happened the last few times she attempted this; how she felt specifically; what she did; who was aware of this; the consequences (not eating; self-neglect; heading out to the chippy) would have more than sufficed. The line I use with my appellants is that “you are your own best evidence so I need the stories you tell family; the stories you tell in the pub; the stuff that’s embarrassing”. Not difficult on bathing or dressing or engagement to get similar in my experience.

SamW
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I agree with much of what is written above.

Although I think the way I see things re evidence is slightly different.

I think it is important to distinguish between a Tribunal simply rejecting your client’s evidence without properly explaining why - which is an error of law - and a Tribunal accepting the evidence in practical terms but then concluding that they do not feel that there is sufficient medical evidence (either in the paper evidence or in terms of the input of the medical member) to conclude that the reported restrictions are “as a result of C’s physical or mental condition” as required by the regulations. I think the latter can be quite difficult to show as an error of law, although the more severe the reported restriction the more that you would expect the tribunal, if they accept the oral evidence, to be able to infer a medical condition that is responsible, even if the medical evidence is sparse.

That’s more a general point. In terms of your case my 2c would be

Activity 1 - If this is all they said that for me is definitely an error - even if there is no objective risk a claimant may well need prompting in order to reassure them about the subjective risk that they perceive due to their anxiety. So that would be 2 points potentially

Activity 3 - unless I’m missing something you’re only going to score 1 point here and no suggestion that your client is arguing that they should score 3 points for Washing & Bathing which is the only other ‘odd’ points value. So does not seem relevant whether they score 1 or 0

Activity 4 - Difficult to say without seeing the SoR. I think that if they only said what you quote that is probably insufficient reasoning. If there is more reasoning then I think the tribunal needs to have given some justification for why they feel that washing once a week is a reasonable standard whether the person is going out or not. 

Activity 6 - I think it is going to be a bit difficult to argue that the conclusion you quote is so wrong to be an error of law in itself. But it the claimant only has two sets of clothing then I think that they do need to be exploring whether she is keeping them clean to a reasonable standard. A failure to do that might be an error?

Activity 9 - If the tribunal didn’t give any reason for why they departed from the conclusion of the ESA medical report and/or preferred the evidence of the PIP report that is an error of law IMO. Your point re avoiding going out is an interesting one. If the client is not going out at all due to social anxiety then I’d be arguing that they score 8 points for this Activity but 0 points for Planning and Following Journeys (assuming a general principle of avoiding ‘double-counting’ when interpreting the regs). So I would be expecting some exploration from the Tribunal of why the client was not going out given that the medical evidence at least does not give further detail about what it is that the client is anxious about.

Activity 10 - I’m not sure I see an error of law here tbh.


As Elliot says - it is difficult to tell without having read the whole SoR. I know I have read a few where I disagree with individual pieces of reasoning but it is clear from the overall context and reasoning that the final conclusion would have been the same regardless.


One final general point - given you have a client who has significant anxiety re. going out and dealing with other people and who already found the previous FTT distressing I think it is important to make sure she is aware that it is most likely that any successful UT application sees her case sent back for a fresh FTT rather than the decision being changed in her favour at UT

Va1der
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Thanks for all the replies, very helpful!
Based on your input and the wider info from the SOR/tribunal recording I think I was able to puzzle together a coherent argument, and it has been sent off now. Will let you know how it goes, especially which points makes or breaks it in the end.

On SamW’s final point: I’ve advised the client that a rehearing is a likely outcome. At the end of the day I think she’s more concerned with having her voice heard than the financial outcome. She can always withdraw if she does not feel up to going to any future tribunals.

Va1der
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Permission to appeal was refused.

Absent an obvious error, and with my lack of experience I can’t say I’m too surprised, but a valuable learning experience nonetheless.
Client understandably disappointed, but at least some satisfaction from being able to pursue it this far.

I don’t know how long it normally takes UTAAC to make decisions, but uplifting to see that they are still operating within a reasonable time frame during the lockdown. (and for that matter the whole malarkey, from claim refusal to UT decision, took just over 1 year in total)

CHAC Adviser
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Did you apply to the Upper Tribunal directly? The one case that I’ve taken that far we got refused by the District Judge in Newcastle but on application directly to the UT permission was granted (and eventually the appeal was allowed thanks to the excellent assistance of Martin of the CPAG UT project throughout).

NAI
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CHAC Adviser - 19 May 2020 10:22 AM

Did you apply to the Upper Tribunal directly? The one case that I’ve taken that far we got refused by the District Judge in Newcastle but on application directly to the UT permission was granted (and eventually the appeal was allowed thanks to the excellent assistance of Martin of the CPAG UT project throughout).

I agree. A few times in the past, I have applied direct to the UT, permission having been refused by the FTT and been successful.

Mike Hughes
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NAI - 19 May 2020 10:38 AM
CHAC Adviser - 19 May 2020 10:22 AM

Did you apply to the Upper Tribunal directly? The one case that I’ve taken that far we got refused by the District Judge in Newcastle but on application directly to the UT permission was granted (and eventually the appeal was allowed thanks to the excellent assistance of Martin of the CPAG UT project throughout).

I agree. A few times in the past, I have applied direct to the UT, permission having been refused by the FTT and been successful.

It’s a fairly common outcome.

I had one judge in Liverpool who literally refused every application to UT I made for the best part of 15 years. Only 1 was ever refused by the UT and several went on to establish worthwhile caselaw.

If only there were a feedback mechanism…

Va1der
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Yes, I did appeal directly to the UT. At the very least we got a reasoned decision, rather than a bland ‘we don’t see an error’ from the FTT.