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Pip Appeal Issues - Upper Tribunal

Bcfu
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Blackpool Centre For Unemployed

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Hi

Hoping someone can help.

I have a client who was turned down for PIP at the FtT and we’ve got the written statement of reasons.

There’s not much to go on, however they have relied on a doctors letter from 2019 which states that they do not believe she is entitled to PIP. Unfortunately, she sent that before I could see it. Is there any caselaw that relates to disregarding this letter?

Also, with regards to Descriptor 9, they haven’t been awarded points due to having a boyfriend and getting another one during lockdown - I’m not sure that means she doesn’t score any points under that descriptor? Strangely enough I have another client which has the same issue that has been raised however, neither of them can interact with strangers etc.

Any help and advice is appreciated.

Thanks Adam

Vonny
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Welfare rights adviser - Social Inclusion Unit, Swansea

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What else does the doctors letter say, is there any indication in the letter that the GP is aware of the qualifying conditions for PIP.
But remember just disagreeing with the decision is not enough, you have to identify an error of law.  I remember a session that I think was at a NAWRA conference about identifying an error law, if you are a NAWRA member it would be worth looking up in previous meetings on their website.  Also go through the section on appealing to the upper tribunal in the cpag handbook, even though I have experience applying to upper tribunal, I always find doing this focusses me on finding an actual error in law.

Elliot Kent
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First things first, speak to CPAG - https://cpag.org.uk/welfare-rights/upper-tribunal-assistance-project

Second, there is a limit to what can be gained from analysing editorialised versions of isolated points from an SOR. The document ought to be read as a whole.

On the points you have raised:

It would plainly be an error of law if the Tribunal has deferred entirely to the doctor’s letter rather than exercising its own judgement. Beyond that, the question is whether the document sensibly carries whatever weight was put on it. Concievably the letter could carry some weight as supporting the general notion that the appellant’s health problems were not so serious,

Hard to imagine there is any caselaw on this - usually its the other way round i.e. complaining a supportive letter was wrongly discarded.

As to activity 9, it is going to depend on the whole reasoning. “X has a boyfriend therefore has no trouble engaging” is probably not sufficient reasoning as there isn’t any sort of consideration of the breadth of engagement. But again, placed in proper context along with other factual points, your client’s ability to go and find a partner could properly contribute to a conclusion that they don’t score points under activity 9.

Its a very different case, but AC v SSWP (PIP) [2021] UKUT 216 (AAC) may have some relevance insofar as it comes to reading a general ability to engage from an ability to do so in just one context. Although it is probably fair to say that actively going out dating is more probative of general social engagement than the claimant in AC‘s warhammer club is.

[ Edited: 19 Jan 2022 at 02:48 pm by Elliot Kent ]
Mike Hughes
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1 - there will likely be zero case law on disregarding the GP letter. Tribunals are not in the business of disregarding or excluding evidence. It’s all about weighting. However, it would be a fairly incompetent tribunal which attached weight to such a thing IF that is all it said. At minimum it would have needed to enquire as to what exactly said GP knew about PIP and what exactly said GP knew about the appellants ability to reliably perform certain activities. The tribunal don’t really have a way to establish the PIP knowledge of a GP but common sense ought to have said “not much”. The GP will not have first hand knowledge of the claimants ability to perform many/most of the 12 PIP activities with some exceptions. It should be obvious that few medical professionals will have anything to say about a claimants ability to cook, toilet, wash, read, budget and engage as they likely won’t have ever seen any of it. Thus they would be relying on what the appellant told them and their belief on whether that was credible or not. There IS case law on GP evidence being credible even if it is mere repetition but here that’s not relevant as the GP is saying that their view is that the claimant is likely not entitled. At minimum that suggests that the GP was not even prepared to repeat what the claimant told them. However, again, no way of knowing.

Bottom line, it seems to me very unlikely that the GP letter as described formed the centre piece of the decision made. However, if the SOR/ROP suggest that it did then there is a likely error to be found.

2 - the whole boyfriend/girlfriend question is spreading through HMCTS faster than rumours of votes of no confidence in Parliament. I have come across it in multiple contexts recently so it strikes me as likely some consequence of a poor quality discussion at either a judicial training event or on the judicial web site. If “x has a boyfriend and managed to change boyfriend” is the sum total of the argument then that is as clear an error as you could want.

It’s important to remember that social engagement is not mixing with people and nor is it solely forming relationships. It also includes the ability to interact face-to-face in a contextually and socially appropriate manner, understand body language etc. In the case of sensory loss it can include the ability to know you were the person being addressed in the first place.

So, x may have a boyfriend but if they were a long standing family friend of a decade it doesn’t tell you much about the ability to form a relationship. Similarly, if the reality of the relationship is a row every day or a constant changing of partners because of rows that also speaks against the ability to socially engage. As Elliot says, context is everything.

Bcfu
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Blackpool Centre For Unemployed

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Thank you that is extremely helpful!

With regards to the boyfriend/girlfriend, the scenario you described is exactly how the client met their current partner!!

Bcfu
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Blackpool Centre For Unemployed

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Vonny - 19 January 2022 01:29 PM

What else does the doctors letter say, is there any indication in the letter that the GP is aware of the qualifying conditions for PIP.
But remember just disagreeing with the decision is not enough, you have to identify an error of law.  I remember a session that I think was at a NAWRA conference about identifying an error law, if you are a NAWRA member it would be worth looking up in previous meetings on their website.  Also go through the section on appealing to the upper tribunal in the cpag handbook, even though I have experience applying to upper tribunal, I always find doing this focusses me on finding an actual error in law.

Thanks. I’m looking at the CPAG handbook - its extremely helpful in these cases.