PIP2 form - can no answer to a question be considered as ‘neutral’?

I have a PIP appeal case where the SoR has questioned the claimant’s credibility on the basis that some of the evidence was ‘inconsistent and contradictory’. It seems that this conclusion has been reached as the the PIP2, SSCS1 and my submission were not a model of uniformity. One of the points raised seems to be that pages on the PIP2 were left blank in response to the mobility questions but the client then claimed subsequently to the HCP (and in the SSCS1 and in my submission) that he has mobility problems. I recall some old DLA case law stating that a blank answer on a form should be treated as a neutral answer - does anyone have the case reference for this at all?

Also, the tribunal has thought it strange that my client doesn’t have Blue Badge if his mobility is so restricted. This seems to miss the point that he doesn’t actually own a car or go out anywhere in a car plus the fact that a Blue Badge would cost him £10 from his very low subsistence income.

Thanks,
Andy

I’m not aware of that particular case for DLA but have a look at CA/1481/2003

Did he tick the ‘no issue’ box, or simply skip the question? In either case you might argue that he didn’t understand the (full) implications of the question, but in the former case there is at least some indication that he in his own self-assessment didn’t think there was an issue.

I noticed you said he made reference to mobility issues to ‘the HCP (and in the SSCS1 and in my submission)’ - those sources all rely on the statements of the client, which don’t necessarily do him any good if the tribunal found him incredible. Was there any additional evidence to support him?

There are probably more clients like nevip mentions, that underestimate or deny their needs, but there are also those who’s description of their difficulties depend significantly on how questions are phrased etc. I once had a client who emphatically denied any ability to plan and follow journeys, but subsequently pulled out her phone to locate the nearest Scotmid on google maps - clearly I’d asked the wrong questions.

It’s an issue of credibility. Someone’s credibility may be affected if they contradict themselves, but it may also be affected if they bring up new information which they could have been expected to bring up prior. Remember the PACE caution : ” it may harm your defence if you do not mention when questioned something which you later rely on in court”.

The implication is that the reason you didn’t mention it earlier is because it isn’t true, and you have made it up later to bolster your case. Or perhaps, less bluntly, you are misremembering things. But it’s perfectly possible for a person to contradict themselves where there is an innocent explanation. Perhaps the claimant misunderstood the question the first time round, or felt that matters were not relevant or worth mentioning and it only became clear when they took advice that they should be brought up. Perhaps, like the claimant in CA/1481/2003, the claimant’s evidence was impacted by stoicism or an unrealistic appreciation of their own difficulties.

Tribunals don’t always deal with credibility very well so you do sometimes get decisions which do not really go much further than ‘the evidence was contradictory so we refused the appeal’. Evidence is often contradictory but there is a need to engage with it and figure out the truth by reference to its relative strengths.

Elliot Kent - 11 June 2021 02:53 PM

Tribunals don’t always deal with credibility very well so you do sometimes get decisions which do not really go much further than ‘the evidence was contradictory so we refused the appeal’. Evidence is often contradictory but there is a need to engage with it and figure out the truth by reference to its relative strengths.

This is the key for me. Yes there are some small number of appellants for whom credibility is an issue but generally they are few and mostly it relates to their health issues anyway and some panels are too keen to engage with the mysteriously undefined concept of credibility, which tends to mean little more than “I don’t believe him but I haven’t got anything specific I can put my finger on right now so “credibility” should cover it”. Lots of good case law around why that is generally an error of law waiting to happen.

Personally I would engage full on with the gaps in the PIP 2 and drill down as to why that was. That can be hard work but it’s valuable to keep probing until there’s a final revelation. That then ends any discussion of inferences at UT level.

I once had an inexplicable gap in a PIP 2 and it turned out the client had spilled beer on it and glued the pages together to the extent they couldn’t be easily separated. DWP somehow managed to do so but neglected to mention that they’d had to do anything. Also had a claimant who couldn’t explain why their answer bore no relationship to the question until it became apparent they were shy of the fact they spoke both Welsh and Gallic ahead of English.

I wouldn’t overthink the neutraility element of it. Indeed I’d simply say that no inference could be drawn especially when the panel drew the wrong blue badge inference and then move on.