‘Safely’ completing actvities - and siblings with different awards

Although I am a benefits adviser, this situation relates to my son and daughter & I would really appreciate any help & advice anyone can give. Both have a rare genetic muscle condition inherited from their father, for which there is no cure. Both are affected in exactly the same way but if anything my son is worse & has the added complication of a thyroid condition. They were both in receipt of DLA at highest rates & had indefinite awards. Moving to PIP my daughter has been given the highest rates for both components and has a 10 year award. My son was awarded standard rate for both components and was then given enhanced daily living after I did a Mandatory Reconsideration. His Mobility element remains at standard rate even though his walking is affected on a daily basis by either paralysis or extreme weakness. I have just been to appeal & the appeal was declined. The tribunal refused to look at my daughter’s case, stating that she is a different person. I am minded to go to the upper tribunal, as I think the tribunal have probably ignored the requirement to perform an activity safely, in a reasonable time & as often as required, when looking at my son’s mobility. My question is whether anyone is aware if any case law relating to these regulations & also whether anyone has any thoughts about the disparity in the 2 awards. I obviously don’t want to jeopardise my daughter’s award but equally this seems grossly unjust.

I think you’ve identified the key issue on which you need to proceed but I would leave the other claimant out of consideration completely. Two separate claimants and I can’t think of any other case where such an approach would be appropriate or credible. Each case will turn on its own facts and, even if you are convinced they are both impacted identically, two different decision makers (or indeed FTTs) are entitled to come to different conclusions on the same facts provided everything has been properly weighed etc. and their responses are within a reasonable range or responses.

I’m intrigued on another level as I have a strong interest in genetics and involvement in the 100,000 genome project as a patient and patient representative and I’m genuinely struggling to think of a genetic condition where the impact would be identical for anyone affected.  I think it would be fair to say that the same applies as regards the impact of any medical condition. No two people are ever the same. Indeed the reference to the thyroid condition is a big clue here. You may want to review how the case was presented. Was the thyroid element underplayed on the assumption a pragmatic perspective on the genetic side would be taken? Were the tribunal enabled to clearly separate the impact of the two things? Lots of hard questions to be asked.

Thanks Mike - this is really helpful. That was my feeling that we need to proceed on the issue of safely, repeatedly, in a reasonable time etc. Do you know of any successful case law on this, as the DWP do seem to routinely ignore this aspect of the regulations?

Yes, we possibly did not stress the thyroid condition enough - I guess because it does not seem huge compared to the genetic condition. That condition is HPP - hypokalaemic periodic paralysis. It is very rare & there is always a struggle to convey the impact, even to medically qualified people. The condition causes episodic paralysis which can last for hours & muscle weakness, which also can last for some time. In this sense my son and daughter are affected in the same way, but, in fact, my son gets far more attacks of complete paralysis & more attacks of weakness - ironic given the PIP decision!

We are waiting for the tribunal’s statement of reasons & then hope to appeal to the upper tribunal on the regs above. Do you think it is better to do this through a lawyer & if so, do you know of anyone with this type of experience?

Many thanks

Fran Elkington.

Fran - I would look at pip.info for the case law on the ‘reliably’ factors. There is quite a bit now including the key judgment that a risk doesn’t have to be more likely than not etc, which has led to DWP reviewing cases. The site is easy to use & the introductory paras to each section will give you a summary of the case law principles

ESAS Manager - 19 December 2017 10:21 AM

My son was awarded standard rate for both components and was then given enhanced daily living after I did a Mandatory Reconsideration. His Mobility element remains at standard rate even though his walking is affected on a daily basis by either paralysis or extreme weakness.

I am assuming that ‘planning and following journeys’ is not in issue? If that is the case, you need at least 12 points for ‘moving around’, which means at least;

2 (e). Can stand and then move more than 1 metre but no more than 20 metres, either aided or unaided.

The PIP assessment guide states that if a descriptor is satisfied for any part of a day then it is satisfied for the whole day - so long as the difficulty isn’t de minimis. Which means so long as the difficulty isn’t inconsequential or at such a low level so as to have only a minimal impact on the claimant’s life. 

In terms of caselaw, CE v SSWP (PIP) {2015] UKUT 643 (AAC) holds that ‘repeatedly’ means that a person needs to be able to perform an activity as often as they would reasonably wish to do so. So a person who is able to stand and then move more than 20 metres but no more than 50 metres (descriptor 2 (c) - for 8 points) but can do so only after 11.00 am, up to which point 2 (e) applies, should be found to satisfy 2 (e). May also be worth looking at TR v SSWP (PIP) [2015] UKUT 626 (AAC) to the same effect.

But caselaw may be jumping the gun at this stage - the first thing would be to be sure that a clear argument that 2 (e) applied and why it applied was actually put to the tribunal - and to then see what it made of this in its statement of reasons.

WillH - 20 December 2017 11:22 AM

Fran - I would look at pip.info for the case law on the ‘reliably’ factors. There is quite a bit now including the key judgment that a risk doesn’t have to be more likely than not etc, which has led to DWP reviewing cases. The site is easy to use & the introductory paras to each section will give you a summary of the case law principles

Here you go: https://pipinfo.net/issues/reliably

Thanks so much - these replies are really helpful. Does anyone have any thoughts as to whether it is better to use a solicitor to apply to the upper tribunal ?

You do not need a solicitor.

What you need is someone who is a proper welfare rights specialist and who is able to identify errors of law in the tribunal’s decision and argue these clearly. There are very few solicitors able and willing to do this - simply for the reasons that most claimants for social security benefits do not have the money to pay solicitors and that there is now no Legal Aid for welfare rights work to allow public funding to meet the solicitor’s fees (well, there is very limited Legal Aid at Upper Tribunal level, but the amount is so limited that any solicitor relying on that as a source of income would starve).

Ealing Law Centre will be qualified to assist you (I know nothing of their capacity to take on new cases) - http://ealinglawcentre.org.uk.gridhosted.co.uk/

You need to live or work in the Borough of Ealing.

past caring - 21 December 2017 04:58 PM

There are very few solicitors able and willing to do this - simply for the reasons that most claimants for social security benefits do not have the money to pay solicitors and that there is now no Legal Aid for welfare rights work to allow public funding to meet the solicitor’s fees (well, there is very limited Legal Aid at Upper Tribunal level, but the amount is so limited that any solicitor relying on that as a source of income would starve).

exactly.  and even when we could do work on green forms we weren’t supposed to represent people at tribunals (albeit i did….)

but no legal aid/money = no solicitor to act unless someone will do it pro bono (assuming solicitor has the necessary competence, which isn’t necessarily so).  and that, inter alia, requires time and support from one’s employing organisation.

Many thanks for all the helpful replies on this problem.

We requested a “statement of reasons” from the Tribunal about a week before Xmas. This has still not come despite a further phone call. Does anyone know how long the Tribunal has to provide this?

Rule 34 - 1 month or “as soon as reasonably practical”.

In practice, anything from 2 weeks - 3/4 months depending on the judge’s workload.