Upper Tribunal PIP appeal: Hi, I'm new... - Fibromyalgia Acti...

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Upper Tribunal PIP appeal

jgordon5
jgordon5
22 Replies

Hi, I'm new here and hoping to find help with UT1 and going directly to the UT for an appeal, as my request for permission to appeal was turned down by the FTT. I have found the excellent post by @esagestapo but it was written five years ago so looking for any updates on that although I think a lot of it still applies - if anyone can help please.

I have brittle T1 diabetes with practically no hypo or hyper awareness, the lack of hypo awareness being the most dangerous for me at the moment. I was on indefinitel DLA which enabled me to pay for a continuous glucose monitor which alerts me when my blood glucose levels are low. I was born a year too late for my DLA to continue and PIP was refused, mandatory reconsideration turned down, FTT rejected my appeal and my request for an UT hearing; so now I'm filling out the UT1 to ask the Upper Tribunal for an appeal directly.

If anybody has further information on what counts as an error of law and any case law which supports these errors, that would be much appreciated.

Thank you.

22 Replies
oldestnewest
waylay

Did they say why they rejected your appeal?

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jgordon5
jgordon5
in reply to waylay

They stood by the findings of the medical report on the original assessment in February 2017. They did not seem to take into consideration any of the points we made in the mandatory consideration or in the appeal submission. The appeal was truly awful, with a "medical expert" who knew nothing about brittle T1 diabetes and a disabilities representative whose only question was to ask me if I boiled my food.

The CAB and a disability organisation who advised me, both felt that the continuous glucose monitor should be seen as an Aid or Appliance as defined by the Disability Rights Handbook and the assessor, DWP and the FTT did not agree even though it replaces a faculty, that of hypo awareness. I cannot perform the daily activities safely, reliably and repeatedly because of hypos. The CGM alerts me before I need third party assistance (in the main) but I still have hypos every day and they are very debilitating. Plus I have neuropathy which means I drop things a lot, the hypos affect my balance and ability to do anything very much. I work very hard at staying as healthy as possible but that seemed to count against me.

So, I don't think they took into account the evidence, they disregarded my evidence and also that of my GP, specialist nurse and consultant. But I don't know if these are errors of Law?

1 like
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waylay
waylay
in reply to jgordon5

Ah yes. My friend has a glucose monitor too, for the same reason. How is that not an aid or appliance?! TBH, I don't know enough about the law to have antly idea whether anything you list is an error of law, although it certainly sounds unfair!!

I suspect you need expert help at this point. Does the CAB provide this?

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jgordon5
jgordon5
in reply to waylay

I don't know how they work it out that it is not an aid or appliance. It definitely falls within the definition given in the Disability Rights Handbook. My consultant was amazed that they took no notice of her statement about why I need one. It seems to me to be a deeply flawed system and biased towards the DWP because obviously they pay the 'experts' and if the experts keep finding in favour of the claimants, they'll be out of a job. The judge at the FTT seemed the only reasonable person there but she was overridden by the 'experts'. The UT is different and hopefully more impartial - that's why I want to get the errors of law right. Our CAB has one person who has legal training but it seems very difficult to get to see him. I'll try again. Otherwise, I've now found some helpful information online. :-)

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rosewine

I've copied this from any answer on the SCOOE website when someone asked moremir less than same question, hooemit helps:-

Given that you attended a tribunal the next stage in challenging a decision is to show that this tribunal has made an ‘error of law.’ An error of law IS NOT about if you are entitled to PIP. A legal error is when for example a tribunal has not interpreted the law correctly or there was no evidence to support their decision.

If you wanted to consider challenging the Tribunal decision the next stage is to ask the tribunal for a copy of the full reasons for their decision and a copy of any hand written notes taken by the tribunal judge. The appeal service must receive this request within one month of the date of the decision. For example if you attended the appeal and were given the decision on 6 March 2017, then you must make this request by 5 April 2017.

Your request should be in writing, and state for example ‘I write to request the full reasons for the tribunal decision made on ------ in regard to my PIP appeal. I also request copies of any hand written notes taken during my appeal hearing.’ Your letter should also quote your name, address, national insurance number, and if possible you appeal reference.

Once you have the tribunal reasons it may be worth seeking advice e.g. from a local advice centre, Citizens Advice or Law Centre to see if an error of law can be identified.

If an error of law is identified you have to write to the tribunal explaining what the error is, and again you have 1 month from the date of the reasons to make this request. If this request is not successful you can make a further challenge and I would encourage you to post again, if this is the case.

Read more at community.scope.org.uk/disc...

2 likes
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jgordon5
jgordon5
in reply to rosewine

Thank you rosewine . The FTT have turned down my request for an UT hearing so now I have to submit a form (UT1) directly to the UT and that is why I need advice on all the possible errors of law there might be. The post on here from five years ago is helpful but I wondered if there was any more information on what constitutes an error of law. I've had advice from a local Disabilities Organisation and from CAB, but really at this point, it would be helpful to have advice from someone who has legal training and is familiar with PIP and the UT system. :-)

1 like
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rosewine
rosewine
in reply to jgordon5

Have you enquired about legal aid as I have a feeling it is still available for appeals just to the Upper Tribunal worth enquiring just in case. Do your household insurance cover legal help? Sorry have to go to bed now as in the middle of a flare good luck.x

2 likes
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jgordon5
jgordon5
in reply to rosewine

Thank you rosewine. Yes, I've enquired about legal aid but it's only available in places like Manchester or Liverpool and I really don't feel up to travelling. I expect you know what it's like.... when you feel unwell quite a lot of the time anyway, having to go through all this 'stuff' (document bundle is now over 150 pages) and deal with all the bureaucracy is really difficult. I've found some helpful info online and I'll do my best with that. It was trying to work out what constitutes an error of law that I was having difficulty with but I'm finding bits and pieces online from following leads like yours (above). Thank you. I hope you're alright and the flare has subsided. <3

1 like
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rosewine
rosewine
in reply to jgordon5

Feeling much better today thank you. I do hope it continues so I can enjoy my birthday tomorrow as so many years I have been under par. We could all do with a bit of sunshine.

Yes there seems to be so much help in the big cities. I had to to two tribunals with my husband and there is so much stress involved. Fortunately after the second one we won but she. I wanted to appeal against my ESA decision he said "please don't I couldn't stand the stress again" so I really admire your determination to go further and so want you to succeed.x

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jgordon5
jgordon5
in reply to rosewine

Happy birthday for tomorrow, hope it's a lovely one and the sun shines. A friend of mine has fibro but she spends 7 or 8 weeks in Tenerife in the winter and it disappears while she's in a warm climate. As soon as she came back, she had a flare up. She's fortunate to be able to do that.

One of my daughters has put a lot of effort into the PIP thing - without her I would have given up some time ago, even though it has left me struggling to look after myself.

Thanks for wanting me to succeed - appreciate that. Sometimes it feels like everything is against you! :-)

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rosewine
rosewine
in reply to jgordon5

This for the birthday wishes had a good day very little pain for once minor miracles happen. I wish benefits weren't such a horror story. My friend's daughter has lupus, RA you name it but still worked until she was literally collapsing couldn't eat etc etc and still only got 4 points it is utter madness. Her son whose problems are self inflicted gets higher rate mobility and care, grhh.x

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Quirister

Remember It's what you can't do on a bad day that is important. Never what you can do on a good one!!

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valerienesbitt91

Did you get any pip benefit or down all together

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jgordon5

Nothing!! Went from higher rate for daily living and lower rate for mobility with DLA to absolutely nothing with PIP. Could not believe it! The HCP stated in her report that 'insulin helps her symptoms' - that was her level of understanding of brittle T1 diabetes with no hypo awareness. I've had a long time to get used to the wall of bureaucracy though so now I don't feel quite so upset by it, especially when I see people who are so obviously disabled being asked to prove that they are. It is truly appalling for so many people. So... onwards and upwards. I'll do the UT1 and see what happens. :-)

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jgordon5

I see that you've been given some PIP. Difficult decision then -whether to challenge or not - as they have the power to take it away if you appeal. Good luck with it. I hope you've still got enough to get by comfortably.

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valerienesbitt91

What did your doctor say or ask the doctor go with with you

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jgordon5

My doctor and consultant are so overworked, I wouldn't feel able to ask them to do that. But thank you for the thought. One of my daughters came with me and was just as frustrated about the farcical lower tribunal as I was!

I'll send the form and see what happens.... :-D

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valerienesbitt91

Are you in England or n Ireland

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jgordon5

England..

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Hidden
Hidden

Have you considered just applying again?

PIP is very subjective and all about how it looks on paper, not how it feels in real life.

Sometimes, people just apply again and get a totally different result becuase of the next person's writing style makes it look different on paper.

For example, two different people could see a tired person, and one calls it moderate fatigue and another calls it mild tiredness on paper, and suddenly it goes from no money to standard rate.

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jgordon5
jgordon5
in reply to Hidden

Thank you for replying. It made me so ill, I gave up. Six months after withdrawing my appeal, I received notification that the judge had overthrown the lower tribunal's decision. It was nice to know that but I couldn't go through the whole thing again. I am lucky in a sense because I am old enough to apply for Attendance Allowance, which I did, and I was awarded that. I sympathise totally with anyone having to go through the PIP debacle. I have never known anything like it. I do not say this lightly when I say that I understand why people have taken their own lives rather than try to go on. It almost finished me off. The whole process is not fit to be used in any civilised country.

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onebigvoice

I have just looked at when this was posted ( " 2 years ago " ) but even today the same experiences are still on going, from the way in which the DWP and PIP's treat already diagnosed people with ALL SORTS OF COMPLAINTS, and yes I do say all sorts, since when do you have treatment from your G P, HCP, Health Practitioner of Physio, anything with out them being qualified? A simple letter written by your G P to the chemist or as you may know it a PRESCRIPTION LIST ( BECAUSE MOST HAVE MORE THAN ONE TABLET OR CREAM. ) CONTAINS ALL THE INFORMATION ABOUT THE WRITER? In this case the GP and it has to be signed, if not signed then the Chemist will not except it? Which brings me to my point.

Everyone here has or will be having a Works Capability Assessment ( WCA ) for access to Benefits. These are normally completed by a Third Party Company instructed by the Decision Maker looking at your case. The reason for this is that generally they have no medical background and when sending in MEDICAL INFORMATION like scan results, support letters, or even a new prescription list would not understand the interaction of tablets? there expected outcome in taking them or what if any there side affects?

These company's like Capita. Maximus and Atos are used by the DWP for there Profession and expertise " MEDICALLY " TO LOOK AT THE MEDICAL INFORMATION PROVIDED and write a report ( UNBIAS ) that the Decision Maker with no medical background can understand, to for an unbiased of the claimant and submit that to give the reasons for excepting or rejecting the claim for benefits.

So in supplying PRIVATE MEDICAL INFORMATION TO THE DWP or PIP's don't you see the same things in the report that are in yours?

If there report were shown to your G P, what would he be able to do with it? Absolutely NOTHING? It does not in most cases bare the resemblance of any report by not showing the writers EXPERTISE for the report to be used? does not show where they draw there conclusions from? Yes there are people that say in there report it states " I have looked at all the Medical Information available? and I have ……… " This should be your information since the " Expert or Professional used has not stated his/ her " FIELD OF EXPERTISE " yet you are using this report to assess you?

SORRY no VALID I D shown at the assessment or in the report makes the report unusable? As for refusal of a Mandatory Reconsideration? Also rubbish? If you request a Mandatory Reconsideration they are obliged to carry one out? The Tribunal can ask for another one to be supplied but this should be directed maybe through you, but of the DWP or PIP's because under the Civil Proceedings Rule Part 35 section 3.00 ( Not just this section but all of CPR 35. ) It states this:

PART 35 - EXPERTS AND ASSESSORS:

Interpretation and definitions

35.2

(1) A reference to an ‘expert’ in this Part is a reference to a person who has been instructed to give or prepare expert evidence for the purpose of proceedings.

Contents of report

35.10

(1) An expert’s report must comply with the requirements set out in Practice Direction 35.

(2) At the end of an expert’s report there must be a statement that the expert understands and has complied with their duty to the court.

(3) The expert’s report must state the substance of all material instructions, whether written or oral, on the basis of which the report was written.

(4) The instructions referred to in paragraph (3) shall not be privileged(GL) against disclosure but the court will not, in relation to those instructions –

(a) order disclosure of any specific document; or

(b) permit any questioning in court, other than by the party who instructed the expert,

unless it is satisfied that there are reasonable grounds to consider the statement of instructions given under paragraph (3) to be inaccurate or incomplete.

CPR 35 Rules:

Expert Evidence – General Requirements

2.1 Expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation.

2.2 Experts should assist the court by providing objective, unbiased opinions on matters within their expertise, and should not assume the role of an advocate.

2.3 Experts should consider all material facts, including those which might detract from their opinions.

2.4 Experts should make it clear –

(a) when a question or issue falls outside their expertise; and

(b) when they are not able to reach a definite opinion, for example because they have insufficient information.

AND THIS THE BEST BIT:

Back to top

Form and Content of an Expert’s Report

3.1 An expert's report should be addressed to the court and not to the party from whom the expert has received instructions.

3.2 An expert's report must:

(1) give details of the expert's qualifications;

(2) give details of any literature or other material which has been relied on in making the report;

(3) contain a statement setting out the substance of all facts and instructions which are material to the opinions expressed in the report or upon which those opinions are based;

(4) make clear which of the facts stated in the report are within the expert's own knowledge;

(5) say who carried out any examination, measurement, test or experiment which the expert has used for the report, give the qualifications of that person, and say whether or not the test or experiment has been carried out under the expert's supervision;

(6) where there is a range of opinion on the matters dealt with in the report –

(a) summarise the range of opinions; and

(b) give reasons for the expert's own opinion;

(7) contain a summary of the conclusions reached;

(8) if the expert is not able to give an opinion without qualification, state the qualification; and

(9) contain a statement that the expert –

(a) understands their duty to the court, and has complied with that duty; and

(b) is aware of the requirements of Part 35,

this practice direction and the Guidance for the Instruction of Experts in Civil Claims 2014.

3.3 An expert's report must be verified by a statement of truth in the following form –

I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.

Part 22 deals with statements of truth. Rule 32.14 sets out the consequences of verifying a document containing a false statement without an honest belief in its truth.)

IN A NUT SHELL READ YOUR REPORT AGAIN AND TEL ME THAT ITS O K?

onebigvoice.

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