Put on notice in PIP appeal - what next?

Hi all,

I am not sure whether this query should be in this section or under the Disability benefits discussion board.  Involves FTT appeal procedure and PIP criteria.

Bit of a disaster this afternoon at a telephone hearing and need to clarify how things should work as I have never been in a situation like this.

In brief: the client has a number of complex health conditions including Hypermobility Spectrum Disorder, Reflex Autonomic Dysfunction and Chronic fatigue syndrome.  She struggles day to date to deal with a number of symptoms.  She has been receiving standard rate daily living and mobility since 2014 but has always thought that the descriptor points were not high enough to reflect her actual day to day.  She was reviewed by DWP in line with RJ/MH in 2019.  No points change.  A few months later, a general PIP review, no points change.

She has been waiting for an appeal hearing for years as it keeps on being postponed.  The appeal on the general PIP review took place last October.  The PIP award went up (mobility) and remained the same for daily living.  Due to an error in the interpretation of activity 3, which we raised it was set aside.  I made representations to re-hear this appeal and the RJ/MH appeal together.  That was accepted, a date set, then postponed. Finally heard today.

The hearing kicked off with the doctor asking questions about her condition.  He says he is a specialist in this area.  There was then a break while the tribunal discussed (they told us rom the beginning that they were going to do this).  They came back saying the appellant was put on notice that if she pursues the appeal she is likely to get a reduction in points because the doctor thinks that one aspect of her health issues means that there are no risks in relation to safety anymore and that means a lower award.

However the appellant doesn’t accept that he has understood her condition and has many other health issues/needs in relation to the descriptors and other reliability factors apply (to an acceptable standard, repeatedly, within a reasonable time scale etc).

We were put on notice and given no further chance to explore the issues we raised as part of the appeal.
For my part, I am miffed.  Would never have suggested she pursue it if I thought there was a risk of loosing.  Her health conditions are really complex and her symptoms overwhelm her day to day life. 

It has now been since 2014 battling to get her a factually and legally correct PIP assessment. 

She is now in the position where she either withdraws or goes ahead.  We will be getting a notice in the post.

So can I be clear:-

- If she withdraws now, she keeps her PIP award even though it is not quite correct
- Will the DWP see that she has withdrawn and why, then use as an excuse to review her?
- If she chooses to go ahead, will it be in front of the same panel?
- Any possibility at this point to raise concerns about the conduct of the doctor/judge?

Any thoughts gratefully received.

EKS

(1) Yes

(2) Maybe but it would not be ordinary for this to happen

(3) Maybe. It is perfectly valid for the appeal to be heard either by exactly the same panel or a wholly different panel. It would not be acceptable for the case to be heard by a panel which consisted of some members of this panel and new members.

(4) You can raise a complaint should you wish. However, it doesn’t sound like there is anything to complain about. It is valid for the Tribunal to raise the issue of the appropriateness of the award and the caselaw supports the idea that your client should be put on notice about what the concerns are so she has the opportunity to address those before it is too late. It is (incredibly given how long the cases have been out there) not uncommon for a Tribunal to start the hearing with a blanket warning that something could happen which results in the award being reduced without setting out any specifics of why this view has been formed - this is likely to be an error of law.

It is possible that different considerations apply to your client’s “normal” appeal and to the official error appeal, because in the latter there will only be a jurisdiction to change the decision if there is a ground for revision/supersession such as official error so the Tribunal’s powers to interfere with other parts of the award will be narrower.

Many thanks Eliot, much appreciated.

And presumably if she goes ahead with the appeal and they do not find in favour or make a lesser award, an overpayment will be generated?

There would be an overpayment but as this is PIP, the old fashioned fault based recoverability rules apply. It is highly unlikely that an overpayment in these circumstances would be recoverable.

Had this numerous times over the years and:

4 - absolutely not the moment and will likely prove to be irrelevant because…

3 - unless your panel have explicitly reserved or excluded themselves, and you would have that info. as part of the summary decision. then its almost certain your next hearing will be a new panel of 3 and likely with a completely different perspective on the same evidence.

Most of us take winnable cases i.e. not cherry picked and guaranteed to win but cases which need to be heard and in which we have confidence in our evidence. The opinion of one random on an appeal panel should not shake your confidence in your original arguments. The first time this happened to me I was taken aback and then rapidly moved to outrage as the assertion there was a risk was clearly nonsense. Proceeded and won.

Since then I have proceeded in every single instance I have had the warning and I’m still waiting to lose one. The reality is that you got either a whole panel who believed that risk was real (that seems unlikely in my experience) or (far more likely) you got a judge whose modus operandi for dealing with medical professionals who simply will not budge from a ludicrous version of the facts or the law is to adjourn and get you a second bite.

By all means review your case and associated evidence but if you thought it should win and can justify to yourself the explicit reasons why then it’s good to remember that nothing has changed.

If it helps, my last warning was a case where I was told that a 5 year award of PIP that had followed a DLA award which had been in place for around 18 years was suddenly a case in which the “panel” believed there was likely no title to either component and had not been for some time. I stood fast, proceeded and 45 minutes later we came out with double top for the decade.

Edited to add that I have never (yet) had a case in which a warning was followed by a new panel who reiterated the warning. I’d be genuinely interested to know if anyone else has.

Eliot and Mike - just wanted to say thank you so much for your vital input.

FYI We have had the notice through and the panel have excluded themselves.