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SOR - critical of form completed by adviser
I’ve just received a statement of reasons for a PIP tribunal.
There are some other more technical issues, and some other bigger, vaguer and harder to shape as points of law issues.
But I was somewhat thrown for the amount of criticism thrown at the form. (And pretty relieved I didn’t do it - though I don’t think the person who did necessarily did anything wrong). The tribunal do seem to have believed it was me, and have criticised the form filled in by the “representative” in three different places.
The most interesting is:
“As before the tribunal is mindful the claim was completed by a representative who according to the appellant was merely writing down what was said to her but here as elsewhere the claim was couched in legal rather than everyday language that one would normally expect. Of course it may be entirely truthful but then again it may have been exaggerated and the Tribunal considered on the balance it was the latter”.
For background the first criticism is based on the form saying she could not use public transport, when she sometimes does - therefore the absolute statement is false. Claimant is both extremely variable, and not always capable of seeing that - tribunal panel saw her as essentially not lying but gloomy. In fact she is mostly penalised for being over optimistic as she is seen to have been studying and volunteering and to still be working - she believed she could do all of these things, persuaded people she could, but essentially could not. She did not complete a single piece of coursework in a year. She missed more days than she attended of a two week volunteer placement. She does work but again misses more days that she attends.
But this statement seems to go beyond that and attack the form BECAUSE it was written by a professional.
This seems to (a) penalise her for needing help (when she both has a right to it, and a particular right as an accessibility issue), and (b) to penalise a claimant for understanding the system they are forced to go through.
The form was not vastly different from what I might do. I talk to the claimant and listen to what they say then mix that with my knowledge of the rules. I’ve never run into this kind of trouble - but I’m normally there to explain how it was done as I generally manage cases throughout the entire process. If I’m being technical about things I would definitely write third person, and I always note my involvement on the form.
This was unusual in that I took it on last minute for the appeal hearing. The claimant had moved area since the form and MR had been done.
Is there anything about assessing forms that were completed by third parties ?
And - this is a worrying attitude ? Right ?
It sounds to me that the tribunal is conscious about being presented with two pieces of evidence, one on the form saying she cannot do something, and the other is her in person saying she only sometimes can’t - and wants to give a reason why it believes the latter is more reliable. I wouldn’t read any more into it beyond the particular circumstances.
What was the so called “legal language” that the tribunal is referring to?
What was the so called “legal language” that the tribunal is referring to?
“It noted in the comment that it would take “twice as long as an unaffected person” to wash” [...] “Similarly with dressing the claim form refers to not being able to do so within a “reasonable time scale” raising of course regulation 4 issues”.
I do get that there are some actual issues with clashing evidence. I suspect mainly because if you asked the claimant on different days she would give wildly different answers because she tends to see everything very absolutely. If today is a good day she sees things in that light, if it’s a bad day then she finds it hard to remember it isn’t always like that.
But those seem perfectly reasonable things to say on the form. It’s in the guidance booklet! It’s not quoting statute and caselaw at them.
The person who helped with the form probably should have filled it out third person of course. But it does include having someone else complete forms as part of the question about budgeting.
HMCTS insistence on recruiting barristers as tribunal judges has tended to feed an increase in the desire to critique rather than just give an SOR and it can be quite a shock when you read some of them. I had one that ran to 5 sides which was explicitly personal and based on a completely incorrect assumption which ultimately made the judge in question look something of a buffoon. Other colleagues in GM occasionally report similar. I have 1 great UT decision picking that apart and Rightsnet cited what looked like a Stockport case where similar shenanigans were given short shrift by the UT. All that said…
In this instance I read this perhaps slightly different to others. The red flag for a tribunal will not be completion by a rep. but two aspects of that. Firstly, the use of legal language. Nothing wrong with the latter per se but a claim pack for PIP should largely be populated by anecdotal examples of the claimants recent attempts to perform points scoring activities reliably. Legal language has its place e.g. I will sometimes add in a reference (and a copy to be doubly annoying and helpful at the same time) of the case law around hearing aids and bathing but that will always accompany a couple of examples of real world incidents. Sometimes however, a rep can, unintentionally or otherwise, fall back on the law and case law (which may be really important and totally obtuse to a DWP DM unless you put it on a plate) and it can appear to the reader that it’s been done to obscure the reality that there are no credible anecdotal examples.
Similarly on review forms I will happily cite the case law around being able to challenge the award length only but it will always sit alongside a great deal of detail as to why an ongoing/10 year award would be appropriate.
The second red flag will be the phrase “merely writing down what was said to her”.
Two issues with that. Just writing down what a client says is dangerous territory for both claimant and rep. and credibility is clearly at issue when the claimant says that but the form itself is then couched in legal terms. The client is unlikely to have been a legal expert so any decent tribunal would be looking at that and rightly in my view putting it at issue.
Thanks for your reply.
I tend to vary when I do forms based on whether the claimant is able to make their case but just not write it down (either physically, or due to issues with literacy or with fear of paperwork which is quite a big thing in the cases I work on) I will sometimes do the forms from the claimant’s perspective. If I am doing more work in trying to match to criteria then I would do it in the third person. Which matches with the guidance given in the PIP 2 booklet.
In this case I do think the representative should have filled it in from her perspective. But it did note in two places that it had been filled in by her / with her.
But it’s also the case that the SOR gave two examples of the “legal” language which I quoted above. It’s not caselaw, it’s not statute, it’s basically arguing that the claimant meets criteria in ways that are explained in the PIP 2. Use of “reasonable timescale” and “twice as long as an unaffected person”. And I’ve been through the form, that’s as “legal” as it gets. I have seen similar on claimant completed forms if they are the rare people who actually read the guidance.
In terms of the claimant saying the representative “just wrote down what I said” - no further questions were asked about that, and it feels that it’s a perfectly reasonable way for a claimant to describe the process in general (if not entirely accurate).
From my point of view I’m a little more concerned that they appeared to believe that I had done this - and therefore distrusted me. (Two of the references to it say “a representative” but one says “the representative” and it does appear somewhat hostile to me).
To a certain extent it doesn’t matter hugely - there are other issues with the reasons. Including a VERY odd attitude to use of aids (including overturning DWP decisions to give the same points for prompting but not use of aids, as well as just denying it in other descriptors, in one case where there is very clear caselaw). And some oddity around prompting v. supervision (which if anyone has any nice caselaw on…)
What I’m least happy about is the feeling this one left me with that it felt like a DWP health assessment. The claimant had significant issues controlling herself in the hearing, got told of by the judge twice, and swore when asked a question by the DWP rep. When I got a chance to speak I did address this and say I hoped they would be understanding of the fact that she struggles to control her emotions because of her mental health, and that this was one of the reasons we believed points should be awarded for engaging with people. But the SOR specifically gives as a reason she can engage that she gave evidence at the tribunal without problems !
I guess I’m a bit thrown by what seemed like hostility towards both the client and myself. It probably didn’t help that the claimant annoyed the judge by interrupting, and almost certainly annoyed the Dr because she likes to speculate about her diagnoses.
The DWP leave me feeling like this all the time. Appeals panels generally don’t - even when they get things wrong.
Yeah, I vary the perspective on forms but always make it clear who completed the form and why. Never really been an issue. I certainly don’t do it cos it complies with PIP guidance though. That, from my perspective, is now wholly politicised. Less an interpretation of legislation and case law and more an exercise in trying to suggest the law reads in a way that it actually doesn’t. In my case I use third person when the claimant has a health condition which absolutely prevents their completion of the form and first person where it doesn’t necessarily prevent them but is difficult. Also part of a discussion with the claimant as to their preference.
Putting aside the idiocy that is “gave evidence at tribunal” = “engagement” I have to say I winced when I read “twice as long as an unaffected person”. Visceral reaction. Multiple reasons I guess:
1 - in a reasonable time = > twice as long so writing “twice as long as an unaffected person” is basically writing “I do not qualify”. Using legal language; assuming you’ve got the law right but then getting something like that wrong and using a phrase derived from the legislation is entirely a reasonable thing for a tribunal to look at and think “what the heck” I think.
2 - it’s an instance which required no legal language at all. All it really required was “this usually takes me approximately x minutes or more. Prior to having this condition it took me y long” or “this usually takes me approximately x minutes or more. I am aware it takes other members of my family y minutes”.
It smacks of a rep. saying that DWP should accept assertions without any evidence because the person doing it knows the law doncha know.
I must say I don’t get any sense of any of this being an attack on yourself at all.
I must say I don’t get any sense of any of this being an attack on yourself at all.
The only problem with that is that they seem to have decided I was the person who did the form - and that the person who did the form was dishonest. The first one is not the case. I don’t actually believe the second was the case either.
In general it’s probably better to be disliked for things you didn’t do - but I think the misunderstanding affected my credibility a bit.
And yes - there is a major absence of the word “more” in that statement about reasonable time. Sounding a little bit too technical and being wrong is never the best combination.
I do prefer to take cases through the whole process. Though this was still on the better end of forms I have inherited (and beats the MR I inherited from a local HA which was written for the wrong benefit ! They had crossed out ESA by hand and written PIP but it still used all the wrong criteria). If I have to I’d rather deal with my own mistakes than someone elses.
So my assumption is that you’re asking for a correction to the record?
Just complaining about it really while looking into more solid reasons for challenging it.
I don’t like it but I think challenging it will look petty compared to some things that might help the client get it over turned. It’s up there with insulting the DWP at tribunals as something that would be satisfying, but not as satisfying as a better chance of a good outcome. (Which it is a shame this client did not understand given swearing at the DWP representative was one of the problems they had with her).
Given the level of concern expressed in your original and subsequent posts about credibility as a rep. then you need to make a decision on whether any of this is a concern or not. If it’s a concern then ask for a correction. If it’s not then that’s the end of the matter. I don’t see any middle ground. Maybe others will?
FWIW I certainly would not accept the follies of others being attributed to me. How a challenge might look would be close to zero on my list of concerns if that were to occur. I’ve built up a local rep. over 3 and a bit decades and I would challenge anything erroneous in respect of that.
Most recent example I can think of was a judge who asserted that in asking for reasonable adjustments I was clearly careless in asserting that I was sight-impaired and it was clear from the paper work that I meant the appellant. I didn’t hesitate in getting that sorted as it was also an opportunity to spell out to said judge just how far off their judgement was in respect of many aspects of that case.
So, personally, I’d have asked for the correction by now and not given a second thought to doing otherwise.
Thank you.
Maybe I will reconsider.
I’m just so used to the appeal being the point at which things get not awful. Even the ones that don’t get things wholly right. And this was so bad in such DWP like ways (from resenting people getting help to outright misrepresenting how well the client coped at the hearing). It made me unhappy and angry and I’m still trying to work what bits actually matter, and what bits were just me being a bit disproportionately angry about the whole thing.