Pip tribunal hearing rejection

I went for my tribunal today and it was rejected basically because I still work albeit at reduced hours and I'm in agonising pain 9 times out of 10. Even with all my medical evidence from my rhruemy and gp. Im really disappointed why do the authorities not recognise how debilitating lupus is? I explained how it affects my daily living and mobility and I was initially awarded 6 points for daily living and 4 for mobility but didnt score anymore points. My advisor from the cab is incensed and wishes to take this further. But I think I'm done I've had enough it's been so stressful. Has anyone ever had a tribunal decision over turned?

21 Replies

PIP is meant to be an in work benefit so that you working should not come into it,Many people who still manage to work are in receipt of this benefit.

A friend of mine,we attend same lupus clinic,was told by DWP because Lupus is a fluctuating illness it doesn't always mean you should nneed extra help.He fought and fought and eventually got an understanding assessor who agreed him PIP for five years which meant he could cut his hours to part time.

It was he told me very stressful for the few months of arguing but it was worth it in the long term.

Sorry you're having a rough time.


Hi littleeffie I totally agree and I will carry on fighting this!


I applied for pip and asked for reconsideration, they have not taken into account that my abilities change daily, or the fatigue and pain I suffer, they rejected it based on the fact I clinically had strength in my grip and legs on that day. The stuff from the assessment conclusion was not what we discussed at all! I'm really grumpy about it the system is completely flawled as it doesn't allow for people to not fit in a tick box. I to am too tired and fed up of the stress and the wait to take it any further. I really hope the system gets sorted out and recognises that some people can't be catagorised in a check box :( I wish you luck if you do choose to take it further. X


Hi SLC03 I totally agree with you and I'm do stressed and fed up of the whole thing


Hi Tre

So sorry to read of your PIP tribunal outcome. It's awful what you have to go thru on top of being ill!. PIP is awarded purely on the basis of how your illness affects you day to day so you should have had a better result!. I'm glad you had the support of a CAB advisor who is as incensed about it. You can appeal to the Upper Tribunal if you can face it. Good luck with whatever you decide. X


Thank you misty14 I will definitely re - appeal!

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Hi, I'm really sorry for you. It's disgusting what they put people through. DLA was so much better. I thought things might have changed with all the publicity about Atos etc. I am using fightback4justice at he minute. You might want to check them out. They are proffesionals in this kind of thing. They will even come to the tribunal with you.

I am going through a reconsideration at the minute. I have so many health problems I was shocked when I was refused. It seems it's all about the physical and they don't seem to understand chronic illness at all.

I would recommend keep fighting if you have the strength. They shouldn't be able to get away with it. maybe one day they will eventually understand how debilitating these illnesses are.

I am doing a degree mainly from home. Now, I won't be getting any of the help the college were giving me. It was hard enough with the help. Good luck! Wishing you all the best X


HiJackie @ jacqueline121 I feel your pain and I sincerely hope that you get a better outcome this time around. I'm just so fed up and stressed I'm not in the mood to do anything as yet. Good luck hon


Hi - have you looked at the Disabled Students Allowance? I think it's the students version of Access To Work where they provide ypu with additional equipment and that kind of thing - my goddaughter went through the system and they supplied her with money for printing costs so she could print the relevant sections she needed to carry rather than have to carry heavy books, voice recognition software from typing essays, better chair - that kind of thing. I went through the Access To Work version and they were brilliant - in my area they send an assessor from RBLI out and they are much more approachable, friendly and helpful than I had with ATOS. They provided me with equipment for my particular work problems that I didn't even know existed - such as a roller bar mouse - and it's made a huge difference to my work ability. They also fund an assistant to come in once a week in my case to help with the heavy stuff I can't do. Definitely worth going through the process and a totally different experience to PIP


Hi, thanks for your reply. No I haven't checked them out as I thought you could only get help if you were getting PIP or DLA. Since having my PIP stopped I haven't had any college help....which I badly need. Thanks so much for the information. I will definitely look into it when I'm feeling a little less tired.

Kind Regards


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Hi this was posted on a disability site yesterday it certainly makes interesting reading. If your advisor wants to go further support them

It will help a lot of us who suffer from constantly changing illnesses



Before: Upper Tribunal Judge K Markus QC

The decision of the Upper Tribunal is to allow the appeal. The decision of the First-tier Tribunal made on 18 December 2015 under number SC227/15/00976 was made in error of law. Under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 I set that decision aside and remit the case to be reconsidered by a fresh tribunal in accordance with the following directions.


1. This case is remitted to the First-tier Tribunal for reconsideration at an oral hearing.

2. The members of the First-tier Tribunal who reconsider the case should not be the same as those who made the decision which has been set aside.

3. The parties should send to the relevant HMCTS office within one month of the issue of this decision, any further evidence upon which they wish to rely.

4. The new tribunal will be looking at the appellant’s circumstances at the time that the decision under appeal was made, that is the 13 May 2015. Any further evidence, to be relevant, should shed light on the position at that time.

5. The new First-tier Tribunal will consider all aspects of the case entirely afresh and it may reach the same or a different conclusion to the previous tribunal.

These Directions may be supplemented by later directions by a Tribunal Judge in the Social Entitlement Chamber of the First-tier Tribunal.


1. This appeal relates to a decision of the First-tier Tribunal dated 18 December 2015 that the Appellant was not entitled to either component of Personal Independence Payment (PIP). The Appellant suffered from lumbar spinal stenosis. He had pain in his back, neck, shoulders and legs. He also suffered from diabetes, anxiety and depression. He had claimed to satisfy a number of descriptors in relation to the daily living component and the mobility component of PIP, but this appeal is concerned only with the mobility component.

2. Mobility Activity 2 in Schedule 1 of the Social Security (Personal Independence Payment) Regulations 2013 reads as follows:

2.Moving around.

a.​Can stand and then move more than 200 metres, either aided or unaided.

b.​Can stand and then move more than 50 metres but no more than 200 metres, either aided or unaided.

c.​Can stand and then move unaided more than 20 metres but no more than 50 metres.

d.​Can stand and then move using an aid or appliance for more than 20 metres but no more than 50 metres.

e.​Can stand and then move more than 1 metre but no more than 20 metres, either aided or unaided.

f.​Cannot, either aided or unaided –

​(i)​stand; or

​(ii)​move more than 1 metre.

3. Regulation 4 of the 2013 Regulations provides:

​“(2A)​Where C’s ability to carry out an activity is assessed; C is to be assessed as satisfying a descriptor only if C can do so –


​(b)​to an acceptable standard;


​(d)​within a reasonable time period; …​…

​(4)​In this regulation –

​(a)​‘safely’ means in a manner unlikely to cause harm to C or to another person, either during or after completion of the activity;

​(b)​‘repeatedly’ means as often as the activity being assessed is reasonably required to be completed; and

​(c)​‘reasonable time period’ means no more than twice as long as the maximum period that a person without a physical or mental condition which limits that person’s ability to carry out the activity in question would normally take to complete that activity.”

4. There is no definition of “to an acceptable standard”.

5. The First-tier Tribunal had decided that the Appellant satisfied mobility descriptor 2b, and awarded him 4 points.

6. The tribunal’s reasons, in so far as relevant, were as follows:

“10. We accepted Mr [S’s] evidence that he had constant pain in his neck, left shoulder and back and this affected his walking. However, he was not consistent in the distance he could walk before having to stop; in the claim form at page 36 he indicated that it was less than 20 metres, whilst at page 82 he said “I think it is fair to say that I cannot walk fifty yards”. …

11. In evidence, Mr [S] told us that … he thought he could walk between 30 and 60 seconds at a slow pace before having to stop, but we consider this an underestimate. He told us that he had walked from the waiting room to the Tribunal room – a distance known to the Tribunal to be 33 metres – without needing to stop and he thought that he would have been able to turn around immediately and return to the waiting room without stopping. He said that when he had to stop, he would sit down if he could, but otherwise stand for a few minutes and would then be able to do a similar distance again.

12. In our view, most of the time the appellant could walk for about 2 minutes at a slower than average pace before having to stop and he could do this safely, repeatedly and within a reasonable time scale. We considered mobility descriptor 2(b) was properly awarded.”

7. The Appellant appealed against the decision in relation to the mobility component. I gave permission to appeal. The main basis on which I did so was that it was arguable that the tribunal had failed to address whether the Appellant could mobilise the distance which it found he could walk to an acceptable standard, taking into account the pain that he said that he suffered. I also identified a possible error as to the tribunal’s treatment of his ability to mobilise the distance repeatedly, and asked whether the tribunal should have addressed the proportion of days on which the Applicant satisfied any of the descriptors in accordance with regulation 7.

8. By written submissions dated 11 May 2016 the Secretary of State does not support the appeal. The Appellant has not made further comment on the Secretary of State’s submissions. Both parties have stated that they do not request an oral hearing. I am satisfied that I can fairly determine this appeal on consideration of the papers.


9. On the main issue, Mr Whitaker (who has made the written submissions of behalf of the Secretary of State) says that it is a matter for the tribunal whether pain is significant enough to mean that a person cannot mobilise to an acceptable standard. Mr Whitaker says that the Appellant did not explicitly state that he could not walk to an acceptable standard. His evidence was that his pain increased as he walked and that after a short distance the pain stopped him. Mr Whitaker says that this meant that the pain was not significant enough to prevent him walking up to that point, and so it was at that point at which the pain meant that walking was to an unacceptable standard. He asks, rhetorically, “Why would the claimant continue to walk through significant pain when he didn’t have to?”

10. I do not agree with these submissions. The Appellant’s case had consistently been that his ability to walk was limited as to distance and speed, and that he suffered pain throughout. Thus, in his claim form he said at page 37 “I walk slowly with a slight limp, I have pain at the base of my spine, shoulder (leftside) and neck which increases as I walk and envelops my whole torso. My right leg often gives way – very few steps and my right arm has started to shake a lot with spasms, my right arm sometimes flails around when my right leg gives way as I try to stay balanced”. His pain management doctor had written (page 45) that the Appellant “felt that his pain was present continuously and walking was aggravating his symptoms…He could that his walking was very impaired due to the back pain and could only walk for less than 10 minutes”. In his request for mandatory reconsideration the Appellant described constant pain and then said “I would rather push through the pain and stay as active and independent as I can, for as long as I can. I dread the thought of being in a wheel-chair or living in some sort of supported accommodation.” He said “I think it is fair to say that I cannot walk fifty yards as I struggle at every step”. The note of his oral evidence at the hearing was “I am in constant pain …the further I go the worse it gets….I think I could walk about 30 sec to 2 minute – not very long – it is the pain that would stop me.”

11. What the Appellant was saying in his written and oral evidence was that he suffered pain when he walked, that he would walk slowly for a short distance despite the pain but that it would get worse until the pain would stop him. It could not properly be assumed that, because the Appellant managed to keep going for a certain distance, any pain he experienced while he was walking was not relevant. If a claimant cannot carry out an activity at all, regulation 4(2A) does not come into play. Where a person is able to carry out an activity, pain is clearly a potentially relevant factor to the question whether he or she can do so to an acceptable standard.

12. Although not legally binding, the approach set out in PIP Assessment Guide (2016), which provides guidance for health professionals in assessing claimants, reinforces my conclusion:

“3.2.5​ The fact that an individual can complete an activity is not sufficient evidence of ability. HPs may find it helpful to consider:

• Impact – what the effects of reaching the outcome has on the individual and, where relevant, others; and whether the individual can repeat the activity within a reasonable period of time and to the same standard (this clearly includes consideration of symptoms such as pain, discomfort, breathlessness, fatigue and anxiety).”

13. This was also the approach taken by Upper Tribunal Judge Parker in CPIP/2377/2015 where she said of regulation 4(2A) and 4(4):

​“6.​… Matters such as pain, and its severity, and the frequency and nature, including extent, of any rests required by a claimant, are relevant to the question of whether a claimant can complete a mobility activity descriptor ‘to an acceptable standard’…

​7.​Whether a claimant can stand and then move to a particular distance ‘to an acceptable standard’, inevitably links with two of the further relevant matters under regulation 4(2A): ‘repeatedly’ and ‘within a reasonable time period’. As these terms are statutorily defined, unlike the phrase ‘to an acceptable standard’, then if a claimant fails to satisfy that statutory test in either respect, it is unnecessary to give consideration to ‘an acceptable standard’; however, it might still technically be possible for a claimant, who is unable to show that he cannot carry out an activity repeatedly or within a reasonable time period, yet notwithstanding to establish that he is unable to do so ‘to an acceptable standard’. Such instances must be rare but may exist; for example a claimant who forces himself to walk quickly and repeatedly, through stoicism, despite a very high level of difficulty caused by matters such as pain, breathlessness, nausea or cramp.”

14. The Appellant here was asserting that his was such a case. He had not succeeded in showing that he could not walk over 50 metres repeatedly or within a reasonable time period, but he said that he did so in considerable pain. The answer to Mr Whitaker’s rhetorical question is found in the Appellant’s request for mandatory reconsideration from which I have cited above: that he would rather push through the pain in order to stay as active and independent as possible. In addition, in his claim form he said that he experienced other difficulties while walking – his arm going into spasm or flailing, and his leg giving way – which could also be relevant to whether he could walk the distance to an acceptable standard.

15. The tribunal was wrong not to consider what the impact of pain was on the Appellant’s ability to mobilise the distance found to an acceptable standard. The tribunal was not relieved of the requirement to consider the application of regulation 4(2A) simply because it, or any element of it, had not been mentioned in terms by the Appellant. The provision was put in issue by the evidence.

16. There is no need for me to determine the other matters raised in my grant of permission. In any event, on reflection I agree with Mr Whitaker’s submissions that whether the Appellant could walk the distance repeatedly did not arise on the evidence. Nor was there anything in the evidence to suggest that the Appellant’s condition was variable such that regulation 7 might apply. On the contrary, the Appellant’s case was that his condition was “pretty much the same from day to day” (page 105).

17. On the basis of the error of law which I have found, I allow the appeal and set aside the tribunal’s decision. Further findings of fact are required and so I have decided to remit this appeal to a different tribunal in accordance with the directions which are set out above.

Signed on the original​Kate Markus QC

on 11 July 2016​Judge of the Upper Tribunal


I would definitely fight it, because saying you're in work and therefore not entitled is ridiculous. PIP is not an out-of-work benefit, and it makes absolutely no sense why they would deny you under those terms. How absurd! I'm pretty sure a higher tribunal would throw that out. It is an exhausting thing to do, and I hope you can fight it. I would also suggest you perhaps get in touch with Unity Law if for no other reason but to make them aware that a tribunal is trying to use being in work as a defence. They might be able to challenge it

It should also be noted there has been a new high tribunal ruling in which being able to walk 20 meters doesn't automatically disqualify for mobility points if you are in pain whilst doing so. So that has set a new precedent in law and could be brought up in further tribunals.

I wish you luck and strength.

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Thank you @ silvergilt I'm just so fed up at the mo but i will look into it I Kno my cab advisor wants to take this higher

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Hi tired18 thank you so much that info made really interesting reading. I will try once I get over my stress and disappointment to pursue the Dwp and I will let you all kno how I get on. Thank you once again


Try & find the strength to carry on. The more people who push for the benefit the sooner they're likely to start taking Lupus seriously. Good luck!

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Hi HazelW thank you for your kind words I will try and find the strength to take this further xx


Please try to persevere. Problems with assesors' capabilities to reach decisions continue.


My heart goes out to you Tre. Have a rest. Have a break. I was where you are. I felt beaten down and sick of it all, until someone on here told me I was valued. I was entitled to care and needed help. YOU are worthy of care. You need help.

How dare some able bodied arbritary unintelligent person decide such things about you.

Tired 18 above quotes some really really bad decisions made in one case, and the rest! It is absurd how pain can be ignored, being stoic vilified.

Please take your CAB advice. Look at Disabilty Rights website for tips too, when you have the energy. Please do not give in. I was victorious thanks to a kick up the bum on here, advice sought and tips used. BUT I started from where you are now! If I can do it, so can you.

Do take care. Take time to love yourself a little stronger. We send all our support to you for when you can respond to this injustice.




I have lupus and connective tissue disease, I had my tribunal this afternoon and it was so horrible! They said they will make my desicion and get it in the post, I know I will be rejected by the way they was speaking and looking at me like I was making the whole thing up even though it was all in black and blue by my rhumy. From the stress of the whole pip appealing since April and now court I won't be trying again, it's way too much stress on my health


So sorry to hear all what everyone's been through. They just don't understand how difficult lupus is to manage. If we stop fighting they will get away with treating people like that. If not for ourselves we have to fight for all those people suffering so that no lupus person is ever treated like this again. I understand it is stressful but we must not ever give up.


When I had to apply for pip from Dow and was refused by an assessor I was told I could either take it to tribunal or do a mandatory reconsideration, in other put your arguments down in a letter. I chose to put pen to paper and within four weeks was granted my pip, back dated to the very day it had stopped and what's more they trebled my money., mind boggling. But to coin my favourite phrase, "sometimes the pen is mightier than the sword".


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