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PIP ‘any time revision’ not accepted; any other option?

EKS_COTTON
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Comrades,

Wondering if I could get a view on a case concerning any time revisions (i.e. disputes outside of the 13 month appeal period) based on an error of law.

My client is profoundly deaf. She communicates in BSL.  She can speak and lip read but struggles.  She says that BLS is her first language and she understand non-deaf English - is learning new words everyday etc.  Lip-reading is not fool proof (recognised in PIP case law - CPIP/3326/2017/ CPIP/315/2018).  This is a common situation for deaf people.  She also has anxiety and depression.  She is particularly anxious when outdoors/following routes using both her car and public transport because she often gets lost/confused due to her hearing loss.

She was moved from DLA to PIP in 2017.  Descriptor 7d was applied only.  Decision dated 10/11/17.  The client didn’t appeal - didn’t understand that she could due to difficulties with reading, etc.

There appears to have been a face to face assessment although I do no have a copy of that report - only the PIP decision letter.

The decision letter explains that the client reported difficulties with managing therapy/health conditions, reading and understanding signs and engaging with people face to face but the decision maker ‘did not accept’ that she had such difficulties. The decision also says that because she can use a car and a satnav, they did not accept that she could not follow the route of journey unaided, even though she enclosed ev8i9dence to show that her driving ability was restricted.

In November 2019, I put in an any time revision request on the basis of error of law in relation to
managing therapy/health conditions
reading and understanding signs (CPIP/1769/2016 and CPIP/2050/2017)
engaging with people face to face (CPIP/1984/2015, CPIP/3603/2015)
the route of journey unaided; both on the basis of mental health and use of a car (CPIP/2477/2018, CPIP/2614/2018 CPIP/1094/2019 and CPIP/1347/2015)

I basically argued that they hadn’t understood her conditions (facts) and either PIP case law at the time of the client’s decision or since that has clarified the meaning of the descriptors.  I do understand that there are limits to how far I can argue the facts when it comes to ATR but at the same time, it appears that fundamental errors of law were made.

DWP response: first they didn’t accept that any time revisions existed and I had to complain; they have now looked at it as an any time revision but do not accept error of law. They don’t bother to give any reasons.
The CPAG handbook (p.1287) states that if any grounds revision is refused, you cannot appeal against that refusal and refers to R (TC) 1/05. 

I did also ask that they consider supersession and/or clarify when the MH and RJ review.  They haven’t responded on these points.

Can I get a view, both in general and the following specific points:-

1.  Is there is nothing further that can be done about appealing an any time revision?

2. What can be done about PIP decisions which are then questionable following clarifications in the law - i.e. in this case, with assumptions about driving etc.

3. If I cannot do anything more in creation to review, how can I get DWP to carry out supersession?

4. How are the MH and RJ reviews being carried out - who is being chosen and how/when?  Can the client/rep request a review on this basis?

In solidarity,

EKS

Wookie
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Hi

I would suggest that you apply to the courts and detail all the reasons why you are applying out of the time frame.

https://www.gov.uk/government/publications/appeal-a-social-security-benefits-decision-form-sscs1

If for any reason, this is disallowed then re-apply for the PIP, but if I’m honest I think the Tribunals Service would allow the application.

[ Edited: 12 Mar 2020 at 02:31 pm by Wookie ]
EKS_COTTON
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Thanks so much Wookie I was thinking the same thing.

Martin Williams
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Hiya:

1. There is now caselaw which holds you have a right of appeal against a refusal to revise on official error grounds- PH and SM v SSWP(DLA)(JSA) [2018] UKUT 404 (AAC)  .

2. Note that to succeed on appeal you will need to show the decision was indeed in error of law (for example either: (a) they applied the wrong legal test (b) no reasonable decision maker presented with that evidence could have come to that conclusion or (c) (at least arguably) the DM did not ask the right questions of the appellant to allow the decision to be correct (I think that is hard)- often demonstrating that the decision was made on basis of error is hard.

(See article on this here Official Errors - Officially Appealable)

3. The handbook at p1287 gives the position for an “any grounds” revision - but your revision is a “specific grounds” (also referred to as “any time” revision).

4. To avoid difficulties in establishing error of law- consider whether the initial PIP decision properly notified of appeal and MR rights? Did it (for example) give the maximum extension of 13 months? If it did not then let me know- would be interested in arguing time did not start to run.

Martin

[ Edited: 12 Mar 2020 at 05:00 pm by Martin Williams ]
Mike Hughes
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So, it’s the classic failure to have even the remotest clue about sensory loss. I’ve had a few cases which mirror yours and I echo the advice to appeal. However, I just wanted to add that the arguments DWP posit (especially regards engagement and driving with a sat nav) are ones they will get whacked on once you’ve gotten to the hearing.

EKS_COTTON
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Mike and Martin - only just seen this feedback, very helpful to me thank you.

Have now put in the appeal taking what you have both said into account.

Martin - The initial PIP letter (November 2017) did make clear appeal rights (MR and appeal).  Not sure what you mean by did it give the max extension of 13 months?  By the time I asked for the any time revision (November 2019) we were already outside of the 13 months. Sorry if I have missed something.

Martin Williams
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Emma:

1. Reg 7(3) of the UC(D&A) Regs requires the decision notice to

“...inform the person-
(a) of the time limit under regulation 5(1) (revision on any grounds) for making an application for a revision….”

Turning to reg 5(1) the time limit is as follows:

5.—(1) Any decision of the Secretary of State under section 8 or 10 of the 1998 Act (“the original decision”) may be revised by the Secretary of State if—

(a)the Secretary of State commences action leading to the revision within one month of the date of notification of the original decision; or

(b)an application for a revision is received by the Secretary of State at an appropriate office within—

(i)one month of the date of notification of the original decision (but subject to regulation 38(4)(correction of accidental errors));

(ii)14 days of the expiry of that period if a written statement of the reasons for the decision is requested under regulation 7 (consideration of revision before appeal) or regulation 51 (notice of a decision against which an appeal lies) and that statement is provided within the period specified in paragraph (i);

(iii)14 days of the date on which that statement was provided if the statement was requested within the period specified in paragraph (i) but was provided after the expiry of that period; or

(iv)such longer period as may be allowed under regulation 6 (late application for a revision).

My recollection of the PIP decision notice is that it does tell you to file the MRN within a month but does not tell you that you can have a longer time as provided for in reg 6 (the additional 12 months with good reason etc etc).

So the question is does a notice which fails to comply with the provision in reg 7(3) by not detailing the time limit option in reg 5(1) start the time running for MR under reg 5(1)? It is arguable it does not. Ideally for such a case you want a client who missed the month for a good reason and then did not appreciate they had a maximum 12 months more to get a challenge in- ie who lost out because of the failure to properly specify the time limits.

If that is right then you don’t even need to make out the official error point.

Martin

Andyp5 Citizens Advice Bridport & District
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EKS how you did get on with this case?

Mike Hughes
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I’m also interested in this. Not least because of course at the time none of us threw in points for bathing but we then had KT and SH v Secretary of State for Work and Pensions (PIP): [2020] UKUT 252 (AAC) just a few weeks later.

Andyp5 Citizens Advice Bridport & District
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Some observations from a ‘hearing lead’ based locally.

‘Lip reading is not a communication method it is part of BSL. Non deaf English means that she has a little more English knowledge than other Deaf people. This does not make her fluent. (My ******* learns new words but often she, despite my desperation to explain, does not have the foundational knowledge to pin the new word to).

******* is not able to follow English word order in any format. What is meant by this is that he recognises the words he has been shown, he may not fully understand their meaning though. He cannot follow sentences ie picks out the words he knows then puts them together to try and understand (usually wrongly, always guess work) what someone is saying. ****** has never heard a spoken word, he has no English language memory. He thinks in images not words. English is phonetic, prelingually, profoundly Deaf people cannot hear, never will and never have!

They do not follow word order in any format, written information, ie letters, forms instructions etc etc. ******** would not have been able to set up a DD without first gaining support to do this.

Satnav merely give a Deaf person access to a picture, they cannot hear the instructions. This is of some use of course however they have to look at the image in order to follow it, meaning they are not looking at the road. Many of the signs/cautions shown on a satnav are not understood by the Deaf community.

They cannot approach someone if they get lost or breakdown, they cannot hear Tannoy messages on public transport.

The barriers are endless for Deaf people they are so so isolated even with their own families’.

Mike Hughes
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Beautifully put Andy although I’d add that such issues apply to sensory loss across the board.

The word order thing is interesting. I would add in there the inability to understand punctuation and that tenses have no meaning either. .

Andyp5 Citizens Advice Bridport & District
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Mike Hughes - 28 February 2024 12:38 PM

Beautifully put Andy although I’d add that such issues apply to sensory loss across the board.

The word order thing is interesting. I would add in there the inability to understand punctuation and that tenses have no meaning either. .

Really good points Mike.

Mike that was extracts of an email from Caryn (funding at present looking very tenuous - would be invaluable to any organisation requiring expertise on hearing impaired or deaf clients freelance or otherwise including workshops or conferences or reports - if anyone interested let me know and I will pass on your details),  to us, on a case we have been working with her (org) that has some uncanny similarities to Emma’s above.

But on a wider note we have had also a couple cases in the last couple of years of older prelingually deaf clients on respectively indefinite awards of DLA LRC and MRC dating back to mid 90’s despite the Landmark cases in 1995. Client’s Caryn has picked up and helped us with making ‘anytime’ wotsits for ‘official error’ revised in client’s favour MRC/LRM and LRM added to MRC from date of claims back in the 1990’s.

We have another case just submitted, currently LRC/LRM. Dorset wide cases, making us wonder how many older people awards nationally were seemingly bypassed despite Fairey aka Halliday. That didn’t or don’t have a Caryn. Fighting their corner.

Because of the challenges hearing impaired and deaf face accessing services and for all the aforementioned reasons in previous responses to Emma’s post.