Search rightsnet
Search options

Where

Benefit

Jurisdiction

Jurisdiction

From

to

Forum Home  →  Discussion  →  Decision making and appeals  →  Thread

devastated! ... and confused!

 1 2 > 

 

dizzymare
forum member

welfare benefits adviser, dudley mbc

Send message

Total Posts: 173

Joined: 18 June 2010

I have just had an appeal blow up in my face and to say I am baffled, and very upset for my client is an understatement.  I had a two hour hearing on Friday (PIP) which didn’t go too well, but even taking everything into account, I certainly did not expect that he would have a reduced award. As a brief background,  client has ASD, sensory issues, agoraphobia and some physical problems affecting co-ordination and mobility.  He has always had DLA as a child, and as an adult (now 31);  he lives alone (mainly as his Mother can’t cope with him) but she visits practically every day and supports him with all aspects of care. She is his appointee.  On transfer to PIP, he was awarded standard rate DL and mob, and appointee was not happy. We went to appeal, and this was increased to EDL and SR mob - still not happy with mob. We did give appropriate warnings, but also felt that based on evidence from GP, there was a case for a higher award of mob due to problems with following a route.  SOR showed error, UT agreed and set decision aside so back we went to Tribunal.  The award was then reduced to SR DL and no mob (scoring 4 pts for getting around - which I think is correct) but 0 for prompting to leave the house (GP states he has agoraphobia and he never goes out alone) no account taken of help needed to follow a route either.

Obviously, I will ask for a statement of reasons but we had a couple of issues which I would be interested to get peoples views

Mom is an appointee. Claimant did not attend hearing. This was because he operates with a very fixed view of things, and can get very argumentative (the GP evidences verbal and physical aggression (though to be fair, the latter is rare). Mom did not take claimant, because it was likely he would become argumentative;  he gives a very good account of himself, and does not recognise issues with things like personal hygiene. He is very distrustful, but trusts his Mother and she was concerned that if she were to contradict him, or tell the tribunal that he smells because he doesn’t wash, that this would cause him to become angry and distrustful of her.  Not only this, but any anger that he felt after the appeal would last for hours and possibly days, and it was his Mother who would bear the brunt of this. She works very hard to keep him calm, and did not want to see her son distressed in this way.  The Judge wanted to adjourn for him to be there. We explained all the issues and his answer was that he had 20 years experience of asking questions and would do so carefully, but should he become aggressive, there was always security!! I felt this was totally insensitive and that the issue wasn’t just for his safety but the health and well being of the claimant.  After discussing it again, his Mother who is the appointee, felt nothing could be added by her son being there so we declined to adjourn. The Judge wasn’t happy with him not being there, nor our response. He did say that he felt that appeal would proceed better if they could speak to the appellant. He gave the usual warning about awards going up or down, and the appointee asked him directly, if that was what he was planning to do - to reduce the award, and he said no, obviously, we will proceed and take everything into account once we have concluded the hearing.  My question is thus - should the claimant not being there have any bearing on the outcome? Mom is an appointee and is able to speak in his place. She has a detailed knowledge of his needs and provides extensive care. The Judge thanked her at the end for her explanation of how she ‘experiences’ her son!

The second issue concerned the set aside. The UT set aside the FTT decision because at the previous hearing, they had awarded 4 points for needing prompting to undertake any journey (1b) but did not explain why such psychological distress might dissipate (to such an extent that he did not need another person) once he was out and following a route.  The Judge said that the decision of the FTT had been set aside so we now went back to scratch and nil points; My question is surely it is the decision of the FTT that has been set aside, and not the DWP decision that is under appeal? the decision under appeal awarded 8 pts. I am of course aware that they can look at everything afresh - but I wasn’t of the opinion that the default position was that everything started from 0 and all is to be proven again (maybe I am totally mistaken here).  I might add that the lady in question has a very strong sense of duty to her son and that justice must be seen to be done (she was unhappy even with enhanced DL as they didnt document all his needs and take everything into account)  but there was quite robust evidence of difficulties with going out so I am at a bit of a loss (all will hopefully become clear on the SOR)  The award will be due for review soon so I have got her gathering everything for evidence.

     
ClairemHodgson
forum member

Solicitor, SC Law, Harrow

Send message

Total Posts: 1151

Joined: 13 April 2016

blimey

all you can do is get SOR and then one has to anticipate off to UT again…

i should have thought given the evidence, if properly recorded, you would have reasonable grounds…

     
Elliot Kent
forum member

Shelter

Send message

Total Posts: 997

Joined: 14 July 2014

On the first point, I am not so clear on what you mean. The Tribunal can only decide the case on the basis of evidence it heard, so of course if the claimant isn’t there, this will unavoidably impact matters. They ought to facilitate his involvement as best they can and certainly shouldn’t draw adverse inferences from explained non-attendance. So they ought to have considered the appointee’s evidence and dealt with it appropriately but I am not sure it can go any higher than that.

On the second point, it is one of those intractable myths held by a cohort of FtT Judges that appeals “start from scratch”. The fundamental job of the FtT is to decide matters which are “in issue” in the appeal, although it has a discretion to consider matters which are not “in issue” - this discretion ought to be used fairly and judicially. If the parties are in agreement on an issue, and if there is nothing jumping out in the papers as calling the parties’ position into question, then it probably isn’t “in issue” and shouldn’t be considered unless there is some sensible reason to exercise the discretion. On the other hand, if there is something in the papers which really calls what is agreed into question, then the point is probably “in issue” and must be considered. But these sort of blanket “appeals start from scratch” statements aren’t right. That said, it is not clear that this was material in your case because the tribunal left SR/- in place right?

I’d request the SOR, try and forget about it in the meantime, and come back to it with a clear head once you have the SOR.

     
dizzymare
forum member

welfare benefits adviser, dudley mbc

Send message

Total Posts: 173

Joined: 18 June 2010

Thank you both. Elliott, as far as I am concerned, there was nothing in the papers and I felt that the evidence was pretty sound.  They have reduced from EDL to SR (and taken SR mob away altogether) but as you say, I will have to leave it until SOR is received to see what was the issue.  DLA claim recognised difficulty going out of doors, DWP PIP decision did so, as did FTT so I have no idea why this Tribunal thought differently but Its like picking at a scab at the moment - I keep going over everything but as it could be months before I get anything back, I will have to try to leave it.

     
Elliot Kent
forum member

Shelter

Send message

Total Posts: 997

Joined: 14 July 2014

Yes I think I have gotten a bit confused. So DWP gave SR/SR ;  FtT1 gave ER/SR ;  and FtT2 gave SR/-. So yes, I suppose there is potentially an appeal point in the reduction of mobility as against the DWP decision (but not the reduction in daily living as against the decision of FtT1 which was set aside)

     
dizzymare
forum member

welfare benefits adviser, dudley mbc

Send message

Total Posts: 173

Joined: 18 June 2010

Elliot Kent - 07 May 2019 02:15 PM

Yes I think I have gotten a bit confused. So DWP gave SR/SR ;  FtT1 gave ER/SR ;  and FtT2 gave SR/-. So yes, I suppose there is potentially an appeal point in the reduction of mobility as against the DWP decision (but not the reduction in daily living as against the decision of FtT1 which was set aside)

yes that’s right Elliott - that’s what im thinking on the mob; but even on DL, points were not the same, in particular washing and bathing activity not given, when again, not in issue.  thank you for your comments

     
ClairemHodgson
forum member

Solicitor, SC Law, Harrow

Send message

Total Posts: 1151

Joined: 13 April 2016

and presumably the UT must have thought that it couldn’t go down below original DWP award or they’d have said so.

presumably also, the UT decision was in the papers?

     
dizzymare
forum member

welfare benefits adviser, dudley mbc

Send message

Total Posts: 173

Joined: 18 June 2010

ClairemHodgson - 07 May 2019 04:24 PM

and presumably the UT must have thought that it couldn’t go down below original DWP award or they’d have said so.

presumably also, the UT decision was in the papers?

Hi Claire

yes the UT decision was in papers. Judge referred to it and said everything is now squashed and goes back to zero. I said surely not as it was FTT decision said aside, not everything; but Judge didn’t agree and said UT had set everything aside. The UT decision did say though not limited to grounds of set aside only -  so I guess that is inviting them to look at everything afresh?

 

     
Elliot Kent
forum member

Shelter

Send message

Total Posts: 997

Joined: 14 July 2014

The UT decision has set aside the decision of FtT1 - so just pretend that no longer exists. I would find it incredibly surprising if the UT had said or done anything which would preclude FtT2 from touching the award of SR/SR (subject to the above). That simply isn’t how it works in the AAC. The first decision involved an error of law but everything else is at large in the rehearing.

The usual rubric is along the lines:

A. The tribunal must undertake a complete reconsideration of the issues that are raised by the appeal and, subject to the tribunal’s discretion under section 12(8)(a) of the Social Security Act 1998, any other issues that merit consideration.
B. The reconsideration must be undertaken in accordance with KK v Secretary of State for Work and Pensions [2015] UKUT 417 (AAC).
C. In particular, the tribunal must investigate and decide the claimant’s entitlement to a personal independence payment on her claim that was made on 15 November 2013 and refused on 24 June 2014.
D. In doing so, the tribunal must not take account of circumstances that were not obtaining at that time: see section 12(8)(b) of the Social Security Act 1998. Later evidence is admissible, provided that it relates to the time of the decision: R(DLA) 2 and 3/01.

     
past caring
forum member

Welfare Rights Adviser - Southwark Law Centre, Peckham

Send message

Total Posts: 873

Joined: 25 February 2014

No. It is a complete re-hearing of the decision under appeal - which is not limited in scope to the grounds that the UT set the decision aside. In other words, the UT appeal was solely about standard rate mobility or enhanced rate mobility and whether adequate reason were given/whether there was an error of law - so that was the basis for set aside.

That still leaves you with the decision under appeal - SRDL/SRM.

That decision was not in issue between the parties. If a tribunal is considering reducing an existing award/considering something not in issue between the parties it is entitled to do so - but it has to give the appellant proper notice of this and of why it has concerns. Almost always, rules of natural justice/the right to a fair hearing will require that an adjournment is offered so that the appellant has opportunity to properly address those concerns (or withdraw).

The fact that the tribunal gave you ‘warning’ that it might not award ERM without hearing from the claimant and offered adjournment to get him to attend is not the same thing.

ETA - the ‘No’ was to dizzymare, rather than Elliot.

     
dizzymare
forum member

welfare benefits adviser, dudley mbc

Send message

Total Posts: 173

Joined: 18 June 2010

past caring - 07 May 2019 04:54 PM

No. It is a complete re-hearing of the decision under appeal - which is not limited in scope to the grounds that the UT set the decision aside. In other words, the UT appeal was solely about standard rate mobility or enhanced rate mobility and whether adequate reason were given/whether there was an error of law - so that was the basis for set aside.

That still leaves you with the decision under appeal - SRDL/SRM.

That decision was not in issue between the parties. If a tribunal is considering reducing an existing award/considering something not in issue between the parties it is entitled to do so - but it has to give the appellant proper notice of this and of why it has concerns. Almost always, rules of natural justice/the right to a fair hearing will require that an adjournment is offered so that the appellant has opportunity to properly address those concerns (or withdraw).

The fact that the tribunal gave you ‘warning’ that it might not award ERM without hearing from the claimant and offered adjournment to get him to attend is not the same thing.

ETA - the ‘No’ was to dizzymare, rather than Elliot.

thank you past caring - that was exactly my initial thoughts. FTT1 set aside so what is under appeal is the DWP original decision.  The warning was a general vague one (which they usually give ie not bound by what went before) they didn’t even mention possibility of not awarding ERM but said it would be easier for them to make a decision if they could hear from claimant. Appointee specifically asked if they were intending to reduce anything as he wasn’t present (after they gave said vague warning) and was told No. No reason to think this, would have to take her evidence into account. I guess it will all depend on SOR.

     
past caring
forum member

Welfare Rights Adviser - Southwark Law Centre, Peckham

Send message

Total Posts: 873

Joined: 25 February 2014

Just to add though…...

I’m not sure that it’s a great idea not to have the claimant attend. That might be what his mother wanted, she might be concerned about how it might affect him, but if he becomes upset, if he gets angry, if he contradicts his mother and effectively states there’s nothing wrong with him - that is all evidence. The latter, especially if his lack of insight is documented in the evidence and you address the issue in your subs, can be particularly good evidence.

He had ERDL and SRM - not to be sneezed at. if I were going to pursue that kind of case further, I’d want; a) ERDL and SRM to be virtually guaranteed b) ERDL and ERM to be very strongly arguable and c) good medical evidence - rather than the mother’s opinion - that attendance at a hearing would be harmful to the claimant’s health. It is a rare case indeed (at least for adults) - particularly with sickness or disability benefits - where your prospects of success are not improved by the tribunal hearing from the appellant. And that is true even where attending might be harmful to their mental health.

     
dizzymare
forum member

welfare benefits adviser, dudley mbc

Send message

Total Posts: 173

Joined: 18 June 2010

past caring - 07 May 2019 05:07 PM

Just to add though…...

I’m not sure that it’s a great idea not to have the claimant attend. That might be what his mother wanted, she might be concerned about how it might affect him, but if he becomes upset, if he gets angry, if he contradicts his mother and effectively states there’s nothing wrong with him - that is all evidence. The latter, especially if his lack of insight is documented in the evidence and you address the issue in your subs, can be particularly good evidence.

He had ERDL and SRM - not to be sneezed at. if I were going to pursue that kind of case further, I’d want; a) ERDL and SRM to be virtually guaranteed b) ERDL and ERM to be very strongly arguable and c) good medical evidence - rather than the mother’s opinion - that attendance at a hearing would be harmful to the claimant’s health. It is a rare case indeed (at least for adults) - particularly with sickness or disability benefits - where your prospects of success are not improved by the tribunal hearing from the appellant. And that is true even where attending might be harmful to their mental health.

I totally understand what you are saying (and agree that it can be evidence) however, Mother went once without him and FTT understood reasons for that in view of evidence); and when we spoke about it on the day, she was insistent that she didn’t want to put him through the stress and live with the aftermath. I also agree with what you say about not to be sneezed at (and obviously told her that) but GP evidence is very sound, but I didn’t for one minute think it was at risk (having gone over points in my head over and over based on evidence) Of course, hindsight is a wonderful thing and I will be dwelling on this for a long time to come ....

     
ClairemHodgson
forum member

Solicitor, SC Law, Harrow

Send message

Total Posts: 1151

Joined: 13 April 2016

none of us can legislate for a tribunal chair not “getting” it.

and from what you say if your client had turned up it’s likely the decision could have been worse, if he really has so little insight (and assuming anyone could get him out of the house anyway!  did the tribunal suggest how that was to be done, given the agoraphobia?)

     
dizzymare
forum member

welfare benefits adviser, dudley mbc

Send message

Total Posts: 173

Joined: 18 June 2010

ClairemHodgson - 07 May 2019 10:16 PM

none of us can legislate for a tribunal chair not “getting” it.

and from what you say if your client had turned up it’s likely the decision could have been worse, if he really has so little insight (and assuming anyone could get him out of the house anyway!  did the tribunal suggest how that was to be done, given the agoraphobia?)

thanks Claire for the support.  That’s what Mother said - we could adjourn, and she might not get him there anyway. He does go out (never alone) but she has to prepare him days in advance, set out what they are going to do and where, how, times, what its for etc, but if on the day, he cant go, then he doesn’t leave the house.  The panel weren’t interested in reasons. Im still in shock that someone could suggest using security for someone who is struggles to deal with others and struggles with going out. Im trying to put this to the back of my mind for a while. Luckily the award has 10 months to run, so if she doesn’t receive a review pack shortly, we will call for one (not sure if they havent sent one pending the outcome of the appeal - they usually send out around 12 months before) but she is asking the GP (who already did a letter extending two sides) to do a new report, with even more detail addressing such issues as why he doesn’t take any medication/treatment .. for ASD?; and in the meantime, wait for the statement.

     
Dan Manville
forum member

Mental health, Wolverhampton CC Welfare Rights

Send message

Total Posts: 2080

Joined: 15 October 2012

Isn’t there a practice direction for dealing with vulnerable and child witnesses?

I’ve had similar at the same venue; I actually asked one Judge “do you know who I am?” before explaining who my clients were to assuage my temerity.

I’ve had a couple of cases where they’ve mooted dealing with cases at Birmingham CJC to take advantage of the additonal security there; one actually got that far. Ended up the first case I’ve seen a Tribunal use the panic button then leg it out of the room.