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Weighing of appellant’s evidence over Healthcare Assessment at PIP telephone appeal hearing
I have a client with mental health problems (diagnosed anxiety) who was recently awarded 0 points for daily living and mobility at a telephone PIP appeal hearing. Having looked through the client’s appeal papers, she has provided good evidence of her health problems albeit limited supporting medical evidence other than a list of her health problems from the GP. The statement of reasons outlines how the client’s response to questions at the hearing confirmed that she had all her previously stated problems, so there was both verbal and her own written evidence highlighting these facts. However, the decision not to award seems solely based on the healthcare assessment’s report (which was inaccurate anyway).
I am aware of caselaw regarding the weighing of evidence between the Healthcare Assessment and a client’s own GP, however, I wondered if there was any caselaw which supports a client’s evidence (written and verbal) against the Healthcare Assessment?
Any advice or suggestions would be much appreciated.
Dave
I’ll lump myself in with this one. I just had a similar PIP telephone appeal concerning hidden disability (in my case chronic pain + depression/anxiety) - awarded 0 points DL+Mob.
Unlike yours, there was however a significant amount of evidence, and I’m a bit stumped as to why the tribunal awarded no points at all. I’ve just requested the SOR, intrigued to see what it will say.
On your questions: I suppose it is a lower bar to reject the claimants evidence over that of the HCPs ‘expert opinion’ - unless there is some detail in the claimants own evidence or inherent in her condition that means the tribunal should have given further justification as to why they have preferred the HCP’s opinion.
The tribunal doesn’t have to justify each and every reasoning.
For example: If she’s stated that her anxiety makes her prone to panic attacks whenever speaking to people, she has one during the hearing, and it is noted in the HCP report that they had to take a break when the client ‘started sweating profusely and had difficulty speaking’, it might be reasonable for the tribunal to address why they accept the assessment that she doesn’t have difficulty engaging with people.
I think it’s important not to think about this in terms of some sort of evidential hierarchy. If there is evidence for and against a proposition, the Tribunal gets to decide which side it prefers. The reasons must explain how it reached that conclusion, which will require an explanation of why the evidence presented by the losing side (whatever its source) was rejected.
If the reasons do not demonstrate that the tribunal engaged with the key parts of your evidential case and rejected them for rational reasons, then there will be an error of law.
Can only endorse what Elliot says and there is plenty of historical case law going back decades to support it too. There’s no hierarchy. There’s a judgement as to the preferred evidence and an explanation why. It either flies or it doesn’t.
However, we do get posts like this occasionally and it occurs to me that the issue is not the weighing of evidence so much as the evidence itself. The focus should not be on the problems you have. The focus should be on the consequences of those issues. I’m sure plenty of nuance is lost when posting on a forum but a claimant who does no more than confirm their health issues without relating those to specific and detailed real world examples is always going to find the HCP report is preferred.
Far better to develop an approach which explicitly and briskly dismisses the contents of the HCP report by attacking say 2 or 3 elements which lack such credibility as to be laughable; suggesting it should thus be given negligible weight (without having to go into an in depth analysis) and then looking at the strengths of your own case rather than the weaknesses of theirs. Lack of medical evidence for example is only a weakness when there is also a lack of anecdotal evidence from the appellant. Get the latter right and the HCP report rarely even comes into play.
Try, for example, to be the PO that argues for the cred of a HCP report which argues that a claimant “made good eye contact” when you’ve noted that they’re registered SSI, have no central focus and were not making any eye contact but politely sitting facing the direction the voice was coming from!
Many thanks for this useful advice, I will revisit the statement of reasons with this in mind. The client explained to me how the questioning at the hearing had a strong focus on the fact that she could drive even though she explained that she did this to avoid having to use public transport due to her anxiety. This is a common problem as Decision Makers/Tribunals often (mistakenly) then take the view that if you can drive, you cannot possibly have the problems you state with your anxiety. This will therefore be one of my main issues when challenging the decision and how this can relate to an ‘error of law’.
Many thanks for this useful advice, I will revisit the statement of reasons with this in mind. The client explained to me how the questioning at the hearing had a strong focus on the fact that she could drive even though she explained that she did this to avoid having to use public transport due to her anxiety. This is a common problem as Decision Makers/Tribunals often (mistakenly) then take the view that if you can drive, you cannot possibly have the problems you state with your anxiety. This will therefore be one of my main issues when challenging the decision and how this can relate to an ‘error of law’.
Again, I think its important to remember the approach here. The conclusions which the Tribunal has actually reached aren’t especially important - what’s important is how its reasoning justifies the conclusions.
If the Tribunal explains how the driving fits into the remainder of the evidence and how it goes towards justifying a conclusion that the appellant could do some activity and if it all fits together rationally, then there might not be an error. The error comes when Tribunals say things like “The Tribunal did not accept that the Appellant required supervision because he was able to safely drive a manual car.” (real quote unfortunately)
You might also want to consider accessing CPAG’s Upper Tribunal assistance project:
https://cpag.org.uk/welfare-rights/upper-tribunal-assistance-project
I used them the first time I had to do a challenge to the Upper Tribunal and the advice and assistance I received was top notch.