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PIP appeal WIN but less than I wanted
- Mystery666
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3 years 10 months ago #260314 by Mystery666
PIP appeal WIN but less than I wanted was created by Mystery666
Hi everyone,
This may end up being a long post so apologies. Had my appeal on the phone on Monday and got my decision letter today and have been awarded 8 points for daily living and 10 for mobility. I strongly believe I should have scored massively more than that, my additional evidence possibly was not that strong, my GP would not help me, so mostly I had consultants letters to go on and a letter from my partners nhs boss saying he uses carers leave etc to provide care to me. I am thinking that I wont try to appeal to the upper tribunal even though I think I could win, mainly because of stress etc but a few points and questions.
Firstly, I am my 17 year old sons appointee and carer and I am in receipt of carers allowance. From the get go, I feel like the DWP have taken against this and I even think the judge may have deliberately downgraded my award so that I only get standard rate possibly because of this. I'm worried that DWP may try to take carers allowance from me, any legislation anywhere on this, because I cant find any? Frankly, I am not capable of really providing care, it is only simply out of necessity that I push myself. The majority of what I do is prompting, watching over him, bit of cleaning for him, washing etc but probably takes me a lot longer than it would a well person hence I have met the 35 hours a week criteria. I also work 6 hours a week spread over 3 days because I can only manage two hours at a time at work and on those three days I do virtually nothing else through fatigue/exhaustion and managing my own health problems.
I have seen that DWP can appeal a decision, what would happen if they decided to do that? Given how this has gone so far it really would not surprise me at this point.
I was fairly shocked by the tribunal, I have spent over a year now (because of applying for my son) reading things on this website and in the last month I have read Mark Perlic's PIP tribunal pack that I ordered after seeing it on here. It seemed like no one on the panel actually knew any of of the PIP regs, they set the bar so high on the daily living questions that you would have to have been dying to score enough points to get enhanced. No regard to anything applying for some of the day, when I tried to point that out I had them arguing with me that all three of them (not all legal experts) knew the regs better than me and that I was wrong etc etc, under the stress I didn't find it that easy to argue it very well and possibly should have at least had the case law on the part about things applying for some of the time. No regard for doing anything reliably at all either. Also when I tried to elaborate on any of my answers I was repeatedly cut off and told that was enough, they massively rushed me and got away with putting me under too much pressure. Worse than anything else, I had more or less guessed what points they had awarded me, except for mobility where I believe the judge seemed to me to intend to award me 10 points for planning and following journeys as well as the moving around question but now I have the award she has given me no points for the planning and following journeys and from how the tribunal went I can only guess that this was deliberate. Anyone else come across a judge that was not very impartial?
I have some ongoing medical issues and I am about to be diagnosed with something else I believe, I know I can tell them about change of circumstances and reapply, would that mean I would then continue getting my current award until a new one is decided? I'm just wondering whether I should consider this route so that I could still receive something, which I wouldn't if I went to upper tribunal. FYI, I know the rules around err in Law and don't think I'd have any difficulty finding multiple errors. If I changed my mind to try to go for upper tribunal any ideas on timescales?
So under the circumstances, do you think I should do anything to pre-empt the possibility that DWP will appeal? And if so what? Also if DWP make an appeal would that then allow me to appeal all the mistakes I believe they have made too?
Hope that all makes sense, still have my mind going over it quite a bit, but at least getting an award even if less that I thought relieves a bit of stress
Thanks in advance
This may end up being a long post so apologies. Had my appeal on the phone on Monday and got my decision letter today and have been awarded 8 points for daily living and 10 for mobility. I strongly believe I should have scored massively more than that, my additional evidence possibly was not that strong, my GP would not help me, so mostly I had consultants letters to go on and a letter from my partners nhs boss saying he uses carers leave etc to provide care to me. I am thinking that I wont try to appeal to the upper tribunal even though I think I could win, mainly because of stress etc but a few points and questions.
Firstly, I am my 17 year old sons appointee and carer and I am in receipt of carers allowance. From the get go, I feel like the DWP have taken against this and I even think the judge may have deliberately downgraded my award so that I only get standard rate possibly because of this. I'm worried that DWP may try to take carers allowance from me, any legislation anywhere on this, because I cant find any? Frankly, I am not capable of really providing care, it is only simply out of necessity that I push myself. The majority of what I do is prompting, watching over him, bit of cleaning for him, washing etc but probably takes me a lot longer than it would a well person hence I have met the 35 hours a week criteria. I also work 6 hours a week spread over 3 days because I can only manage two hours at a time at work and on those three days I do virtually nothing else through fatigue/exhaustion and managing my own health problems.
I have seen that DWP can appeal a decision, what would happen if they decided to do that? Given how this has gone so far it really would not surprise me at this point.
I was fairly shocked by the tribunal, I have spent over a year now (because of applying for my son) reading things on this website and in the last month I have read Mark Perlic's PIP tribunal pack that I ordered after seeing it on here. It seemed like no one on the panel actually knew any of of the PIP regs, they set the bar so high on the daily living questions that you would have to have been dying to score enough points to get enhanced. No regard to anything applying for some of the day, when I tried to point that out I had them arguing with me that all three of them (not all legal experts) knew the regs better than me and that I was wrong etc etc, under the stress I didn't find it that easy to argue it very well and possibly should have at least had the case law on the part about things applying for some of the time. No regard for doing anything reliably at all either. Also when I tried to elaborate on any of my answers I was repeatedly cut off and told that was enough, they massively rushed me and got away with putting me under too much pressure. Worse than anything else, I had more or less guessed what points they had awarded me, except for mobility where I believe the judge seemed to me to intend to award me 10 points for planning and following journeys as well as the moving around question but now I have the award she has given me no points for the planning and following journeys and from how the tribunal went I can only guess that this was deliberate. Anyone else come across a judge that was not very impartial?
I have some ongoing medical issues and I am about to be diagnosed with something else I believe, I know I can tell them about change of circumstances and reapply, would that mean I would then continue getting my current award until a new one is decided? I'm just wondering whether I should consider this route so that I could still receive something, which I wouldn't if I went to upper tribunal. FYI, I know the rules around err in Law and don't think I'd have any difficulty finding multiple errors. If I changed my mind to try to go for upper tribunal any ideas on timescales?
So under the circumstances, do you think I should do anything to pre-empt the possibility that DWP will appeal? And if so what? Also if DWP make an appeal would that then allow me to appeal all the mistakes I believe they have made too?
Hope that all makes sense, still have my mind going over it quite a bit, but at least getting an award even if less that I thought relieves a bit of stress
Thanks in advance
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- Gary
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3 years 10 months ago #260320 by Gary
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gary on topic PIP appeal WIN but less than I wanted
Hi Julie
You have one month from the decision date in which to request a written statement of reason.
When asking for the Written Statement of Reasons (WSOR) also ask for a transcript of the recording that should have been made during the hearing. (You may only get a recording so you may have to listen to this and copy it down yourself.) Compare the transcript with the WSOR in order to appeal further you will need to identify at least one error of law.
You can only decide if you want to appeal once you have your WSOR.
It may be advisible to seek specialist help to go over your hearing in a non judgemental way if you apply for your WSOR before taking the next step.
Gary
You have one month from the decision date in which to request a written statement of reason.
When asking for the Written Statement of Reasons (WSOR) also ask for a transcript of the recording that should have been made during the hearing. (You may only get a recording so you may have to listen to this and copy it down yourself.) Compare the transcript with the WSOR in order to appeal further you will need to identify at least one error of law.
You can only decide if you want to appeal once you have your WSOR.
It may be advisible to seek specialist help to go over your hearing in a non judgemental way if you apply for your WSOR before taking the next step.
Gary
Nothing on this board constitutes legal advice - always consult a professional about specific problems
The following user(s) said Thank You: Mystery666
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- Gary
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3 years 10 months ago #260321 by Gary
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gary on topic PIP appeal WIN but less than I wanted
Hi Julie
You have one month from the decision date in which to request a written statement of reason.
When asking for the Written Statement of Reasons (WSOR) also ask for a transcript of the recording that should have been made during the hearing. (You may only get a recording so you may have to listen to this and copy it down yourself.) Compare the transcript with the WSOR in order to appeal further you will need to identify at least one error of law.
You can only decide if you want to appeal to Upper Tribunal once you have your WSOR.
It may be advisible to seek specialist help to go over your hearing in a non judgemental way if you apply for your WSOR before taking the next step.
Gary
You have one month from the decision date in which to request a written statement of reason.
When asking for the Written Statement of Reasons (WSOR) also ask for a transcript of the recording that should have been made during the hearing. (You may only get a recording so you may have to listen to this and copy it down yourself.) Compare the transcript with the WSOR in order to appeal further you will need to identify at least one error of law.
You can only decide if you want to appeal to Upper Tribunal once you have your WSOR.
It may be advisible to seek specialist help to go over your hearing in a non judgemental way if you apply for your WSOR before taking the next step.
Gary
Nothing on this board constitutes legal advice - always consult a professional about specific problems
The following user(s) said Thank You: Mystery666
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- LL26
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3 years 10 months ago #260322 by LL26
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Replied by LL26 on topic PIP appeal WIN but less than I wanted
Hi Julie,
I'm sorry that you had such a poor experience at the Tribunal. You may wish to consider making a complaint about this.
Will DWP appeal? I have represented many apoellants at tribunal and on only one occasion did DWP even ask for the Written Statenent of Reasons (wsor) , and they did not appeal that case. None of my colleagues where I work have ever had a case appealed by DWP. I think on this basis, whilst yes, DWP can appeal, it is highly unlikely.
In order to appeal you will need to write to the tri unal and ask for the wsor and record if proceedings (rop). If you had a phone heating the case will be recorded via cd,if live then there should be a written rop unless the case was also recorded.
Why not ask for both of these anyway? You do not have to appeal to the upper Tribunal, but in order to do so,you will need these items. There may not be an error of law and you will gain an insight into the decision you have received.
On the other hand, from what you say, it is highly likely an error if law has been made. 6ou will only need to find one arguable error if law on a material point. This means as that it has to be an error of law that would change the decision, so if you would only gain one point more that won't be enough, or if the error is only a small one it may not be sufficient to make any difference.
Ask for the wsor and rop and then go through these, together with any notes you may have made. Look at the PIP criteria carefully and match these up with the tribunal paperwork. Common mistakes 8nclude Regulstions 4 and 7. Reg 4 deals with reliability, being safe, repeating, acceptable standardand time taken. Reg 7 is majority of days, and points where more than one descriptor applies. Also gave a look on pipinfo for caselaw.
pipinfo.net/
If you did appeal, I can't guarantee that you wouldn't lise the award you have. Firstly if the devision is set aside that means initially you would revert to the DWP decision, however once the UT has considered your case it can clearly reward as before or increase the award. Remember also that there is a review stage by the first tier tribunal. Many cases never get to the UT, and the review stage is reasonably quick.
If either you or DWP do appeal, either of you will be given the chance to make submissions. Alternatively if there is an error of law and the case is sent back to the first tier tribunal this will be a completely new hearing with a totally different panel, and you can argue everything from scratch.
Since you can only work a few hours, you may be eligible for Universal Credit. Or if you are already on ESA, you could be eligible for further money, called premiums. Potentially you could get a severe disability premium if you live without any other adults ( excluding disabled adults.) There may also be other premiums now you have a Daiky Living award for PIP.
If you made an appointment with a benefits advisor at eg CAB or similar they would be able to do a full benefits check to see your entitlement and your son's
As for being a carer on PIP, thus is always a tricky one, because if the 2 departments of DWP work out that you claim PIP and get CA, then will probably conclude if you need help to care for yourself, how can you care for another? Several people do claim both benefits and are genuinely able to do so, but be careful because it can lead to unwarranted investigations and potential overpayment.
I hope this helps.
LL26
I'm sorry that you had such a poor experience at the Tribunal. You may wish to consider making a complaint about this.
Will DWP appeal? I have represented many apoellants at tribunal and on only one occasion did DWP even ask for the Written Statenent of Reasons (wsor) , and they did not appeal that case. None of my colleagues where I work have ever had a case appealed by DWP. I think on this basis, whilst yes, DWP can appeal, it is highly unlikely.
In order to appeal you will need to write to the tri unal and ask for the wsor and record if proceedings (rop). If you had a phone heating the case will be recorded via cd,if live then there should be a written rop unless the case was also recorded.
Why not ask for both of these anyway? You do not have to appeal to the upper Tribunal, but in order to do so,you will need these items. There may not be an error of law and you will gain an insight into the decision you have received.
On the other hand, from what you say, it is highly likely an error if law has been made. 6ou will only need to find one arguable error if law on a material point. This means as that it has to be an error of law that would change the decision, so if you would only gain one point more that won't be enough, or if the error is only a small one it may not be sufficient to make any difference.
Ask for the wsor and rop and then go through these, together with any notes you may have made. Look at the PIP criteria carefully and match these up with the tribunal paperwork. Common mistakes 8nclude Regulstions 4 and 7. Reg 4 deals with reliability, being safe, repeating, acceptable standardand time taken. Reg 7 is majority of days, and points where more than one descriptor applies. Also gave a look on pipinfo for caselaw.
pipinfo.net/
If you did appeal, I can't guarantee that you wouldn't lise the award you have. Firstly if the devision is set aside that means initially you would revert to the DWP decision, however once the UT has considered your case it can clearly reward as before or increase the award. Remember also that there is a review stage by the first tier tribunal. Many cases never get to the UT, and the review stage is reasonably quick.
If either you or DWP do appeal, either of you will be given the chance to make submissions. Alternatively if there is an error of law and the case is sent back to the first tier tribunal this will be a completely new hearing with a totally different panel, and you can argue everything from scratch.
Since you can only work a few hours, you may be eligible for Universal Credit. Or if you are already on ESA, you could be eligible for further money, called premiums. Potentially you could get a severe disability premium if you live without any other adults ( excluding disabled adults.) There may also be other premiums now you have a Daiky Living award for PIP.
If you made an appointment with a benefits advisor at eg CAB or similar they would be able to do a full benefits check to see your entitlement and your son's
As for being a carer on PIP, thus is always a tricky one, because if the 2 departments of DWP work out that you claim PIP and get CA, then will probably conclude if you need help to care for yourself, how can you care for another? Several people do claim both benefits and are genuinely able to do so, but be careful because it can lead to unwarranted investigations and potential overpayment.
I hope this helps.
LL26
Nothing on this board constitutes legal advice - always consult a professional about specific problems
The following user(s) said Thank You: Mystery666
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- denby
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3 years 10 months ago #260356 by denby
Replied by denby on topic PIP appeal WIN but less than I wanted
Hi Julie, just on the one point. I have a very legally minded friend who has had a number of Tribunals both for himself and others he represents voluntarily. He reckons the sort of thing you experienced ie ignorant/biased judge is actually quite common, he has come across one who was consistently so across 3 cases! Not what you want to hear in a way but hope that, and very much sympathy from me, make you feel a little bit better.
Power to your elbow whatever you decide to do.
Denby
Power to your elbow whatever you decide to do.
Denby
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- Mystery666
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3 years 10 months ago #260394 by Mystery666
Replied by Mystery666 on topic PIP appeal WIN but less than I wanted
Thanks all for your comments, I think I will just ask for copy of record of proceedings etc.
LL26 - both DWP and judge were both aware of me already claiming carers allowance, DWP wrote it in their response to the tribunal and the Judge questioned me on it and accepted that it was reasonable, infact stated in my hearing notice that the DWP DM had placed too much emphasis on my carers allowance etc. Also I don't think we can claim anything else ESA etc because of my partners earnings.
Thanks Denby, I wondered if it was just me as I've had no look all the way through, which has surprised me considering I won enhanced/enhanced for my son on MR, so didn't even need to get to tribunal.
A couple of other questions I have if anyone can help. How to go about getting a benefits advice worker? Is it easy enough through CAB, I have never tried as I have not claimed that much throughout my life so I have no idea about it.
If I applied for permission to to first to take it to upper, someone said that they may review it then? Does that mean they can then just change the decision?
thanks for everyone's help
LL26 - both DWP and judge were both aware of me already claiming carers allowance, DWP wrote it in their response to the tribunal and the Judge questioned me on it and accepted that it was reasonable, infact stated in my hearing notice that the DWP DM had placed too much emphasis on my carers allowance etc. Also I don't think we can claim anything else ESA etc because of my partners earnings.
Thanks Denby, I wondered if it was just me as I've had no look all the way through, which has surprised me considering I won enhanced/enhanced for my son on MR, so didn't even need to get to tribunal.
A couple of other questions I have if anyone can help. How to go about getting a benefits advice worker? Is it easy enough through CAB, I have never tried as I have not claimed that much throughout my life so I have no idea about it.
If I applied for permission to to first to take it to upper, someone said that they may review it then? Does that mean they can then just change the decision?
thanks for everyone's help
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