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Forum Home  →  Discussion  →  Decision making and appeals  →  Thread

PIP appeal

raissa
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Newcastle Law centre

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A client appeal was unsuccessful at first Tier.
Client challenge decision at the Upper Tribunal and the case was referred to first Tier for rehearing.
That took place and the claim was unsuccessful.
Client wants to challenge the decision again.
Is that possible?
After the upper Tribunal, which is the next court. She is adamant she wants to take her case forward.

Elliot Kent
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When the FtT makes a decision you don’t like, you can - on the grounds of error of law and with permission - appeal to the UT.

If the UT remits the case to the FtT (i.e. sends it back down to the FtT to be decided again), then you are just in the same position. You can appeal to the UT again if you are dissatisfied with the outcome in exactly the same circumstances and under exactly the same process.

There are a handful of cases which go up and down to the UT several times before being resolved, usually with the UT giving increasingly exasperated decisions each time.

It’s only if the UT itself makes a decision that you don’t like that you would be looking at appealing to the Court of Appeal, although that is extremely rare.

Peter Turville
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To add to Elliot’s reply.

Although a client’s original appeal to the UT may be allowed on a point of law and referred back to a FFT to hear the appeal afresh - that is no guarantee that their appeal had merit on the facts and will be allowed. A UT decision will normally include a standard paragraph to that effect.

Part of the job of an adviser is to consider the merits of the client’s entitlement to the particular benefit and advise accordingly. For example, if it was a claim for a disability benefit - is there a case that the client meets a criteria for an award? In refusing an appeal a FTT may make an error in law in the way they came to their decision but the decision may be correct on the facts (the client does not meet the qualifying criteria). In other words (crudely) the tribunal came to the appropriate decision but for the wrong reasons.

Just because a client is adamant that they want to appeal (at whatever stage and however may times) it is important to advise them of the merits of their appeal be it an initial appeal to a FTT, to the UT or even back to the UT following a 2nd (or subsequent) FTT hearing. Different tribunals are entitled to come to different conclusions based on the same facts (particularly in ‘marginal’ cases) as long as they give adequate reasons for their decision (for example, I currently have a case which was allowed by the 1st FTT, but that was set aside due to an admin error by HMCTS and the 2nd FTT tribunal refused the appeal.)

It is important to advise clients of the potential risks v gains of a (further) appeal (particularly, for example, if they already have an award of a disability benefit but want a higher award or an appeal on an overpayment or capital issue was partially successful).

It is sometimes difficult to advise a client that in our opinion their case has little merit and to disengage with their case - whilst advising them of their right to continue with their appeal without our support (and the potential risks / outcomes involved) if the wish.

There is an expression about flogging a dead horse.

Mike Hughes
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Back in the 1990s I had a DLA adult case which went to FTT five times. and UT (SS Commissioner back then) four over a nine year period. Case had clear merit but was handled with staggering incompetence by DWP. Client was one of the first cases in the UK to have a double implant following breast cancer and which subsequently leaked and became the subject of some very messy litigation. SSC did indeed show increasing impatience but only with DWP. Case eventually resolved at the fifth FTT when the PO agreed that what was really needed was a further face to face assessment with me present. Award was finally increased and turned into a lifetime award. It was however, still the wrong award. However, client met a new partner; moved area and that was the end of my involvement albeit that I put them in touch with their new LA WRS.

 

Peter Turville
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Mike Hughes - 17 January 2022 04:38 PM

Back in the 1990s I had a DLA adult case which went to FTT five times. and UT (SS Commissioner back then) four over a nine year period. Case had clear merit but was handled with staggering incompetence by DWP. Client was one of the first cases in the UK to have a double implant following breast cancer and which subsequently leaked and became the subject of some very messy litigation. SSC did indeed show increasing impatience but only with DWP. Case eventually resolved at the fifth FTT when the PO agreed that what was really needed was a further face to face assessment with me present. Award was finally increased and turned into a lifetime award. It was however, still the wrong award. However, client met a new partner; moved area and that was the end of my involvement albeit that I put them in touch with their new LA WRS.

Persistence pays off in appropriate cases!!

Never forget the golden rule of benefits - there is often an exception to the exception to the general rule (if a transitional rule does not apply in the first instance)!

Elliot Kent
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Peter Turville - 20 January 2022 09:48 AM

Persistence pays off in appropriate cases!!

There’s a fine line between a case which constantly runs into barriers because it lacks merit and one which constantly runs into barriers because everyone else is wrong about it. The art is in figuring out which side of the line you’re on.

Mike Hughes
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Elliot Kent - 20 January 2022 10:55 AM
Peter Turville - 20 January 2022 09:48 AM

Persistence pays off in appropriate cases!!

There’s a fine line between a case which constantly runs into barriers because it lacks merit and one which constantly runs into barriers because everyone else is wrong about it. The art is in figuring out which side of the line you’re on.

Everyone else is always wrong, obviously :)