PIP mobility -  “overwhelming distress” Descriptor change, historical tribunal decision

Hi all, Robin from Tameside MBC here. Got a bit of an odd/hopeful one for you. Details are:

Client with PTSD and alcohol dependence, struggles with leaving the house due to agoraphobia and panic attacks related to the PTSD.
They were refused PIP in Dec 2016.
At the time, the wording was different for Activity 11, regarding overwhelming distress. MR upheld the decision and he took it to tribunal, which upheld in Nov 2017.
They never made a new claim.
Following the reversion back to the original wording on 09/03/17 they now meets/met the criteria for this descriptor to be applicable to their needs.
PIP wrote to them in Feb ‘22 regarding this, but saying they couldn’t change the tribunal’s decision. We submitted a new appeal, but when we got to the hearing it was struck out as the judge didn’t have the jurisdiction to overturn the original tribunal’s decision. So now we’re stuck in a position where neither DWP or a FtT can change a decision that is clearly incorrect.
No SoR was requested at the time, and one would not be available now as the judge who heard the case has retired.

To add a further complication, my client is now over SRP age and cannot make a new claim for PIP so is missing out significantly.

Any advice on what I can try to do to resolve this? Was thinking of making a heartfelt please to allow it to go to UTT based on an error in law but we’re so far beyond the original decision and tribunal that I can’t see how they would allow it.

Thanks!

The DWP are correct that they can’t interfere with an FtT decision and the FtT was correct to strike out your appeal against that decision.

The remedy is to appeal the 2017 FtT decision on the grounds of error of law. Procedurally, you would need to ask the FtT for an SOR (although obviously one will not be produced) and permission to appeal and seek the relevant extensions of time first.

You would be seeking to establish from the context that the decision probably involved an error of law from this remove. I don’t see that the delay is an insurmountable problem if there is a clear error. Your client had no reason to think there might be anything awry until February 2022 and it sounds like the last year has been spent pursuing the issue in the wrong way, which perhaps can’t be held against them.

I think that the problem in your case is one of timing. MH was decided on 28 November 2016. Your client’s case was decided in December 2016. The Regs were not amended until 16 March 2017. The FtT would have been expected to decide the case on the basis of MH because that represented the law as at the decision date. The general assumption would be that the FtT applied the law as it was then understood correctly unless there is evidence to the contrary.

Elliot Kent - 16 March 2023 12:51 PM

I think that the problem in your case is one of timing. MH was decided on 28 November 2016. Your client’s case was decided in December 2016. The Regs were not amended until 16 March 2017. The FtT would have been expected to decide the case on the basis of MH because that represented the law as at the decision date. The general assumption would be that the FtT applied the law as it was then understood correctly unless there is evidence to the contrary.

Thanks Elliot.

So, I’ve just been to check my appeal bundle for relevant dates.

The assessment took place on 26/10/2016.
First decision was 10/11/2016.
MR decision 23/01/2017.

Does this change anything?

EDIT: Nope, doesn’t look like it.

So whilst it doesn’t look like we have a chance because of the timing, for anyone else:

https://www.independentliving.co.uk/advice/pip-review-psychological-distress/

which indicates that the PIP letters sent our were deliberately misleading. Though it looks like the MH cases are not being dealt with by DWP any more. Which is frustrating, to say the least.