Tribunal Appeal

Hi Sherry

Thank you for your post.

We cannot advise you if you should continue both claims as we do not know you or your case, remember to go to the Upper Tribunal it has to on a Point of Law and made within time limits from the date of the statement of reason.

You can find your local Welfare Rights Organisation to help you with advice by clicking on the link below and putting in your post code, it will then come up with a MAP with a list of agencies. advicelocal.uk or lawcentres.org

As they say, times of the essence. Good luck

Gary

Hi Sherry

Unfortunately we do not offer that kind of service, we can only try and point you in the right direction to get the correct advice.

B&W offer a generic information service not an advice service, which is why we frequently inform members to use their local Welfare Rights Organisation, where all their circumstances can be taken into consideration.

Quite often members will talk about their ESA claim, unfortunately there are 3 types of ESA and it is quite hard to work out what type they are talking about.

Good luck with your quest.

Gary

Hi Sherry,
As Gary said you need to find an error of law to proceed.
Photocopy the written Statement of reasons, (so you can scribble on the copy!) Did you get a copy of the record of proceecings- if not you can ask for this, possibly a cd of the recording.
The WSOR shoukd have opening paragraphs about what the appeal was about, and general law then should have paragraphs about the evidence heard. Finally there should be paras about the findings made and how they relate to PIP points.
Go thru WSOR/ROP what is the actual evidence. Do the ROP and WSOR match. So eg if the ROP confirms you said you can only walk 23m, but the WSOR then says you said in evidence you can walk 450m ( and hence no points) there is clearly an error - the tribunal are relying on so-called facts that are not actual evidence. This could include the 'evidence' of you going to the incorrect place.
Maybe the tribunal have ignored things that were said?
Have grey made sweeping assumptions not borne out by any evidence?
Did the tribunal refer to evidence in the WSOR? (They may not need to refer to everything but if they omit crucial bits, its a good chance they have ignored it which could amount to an error of law. Also if there is a conflict of evidence the tribunal must make a proper explanation as to why they rely on one source more than another- it is not sufficient to say they rely on DWP assessment 'because it is independent and ignore your own medical evidence.
Then have a look at the actual descriptor wording. Does the tribunal refer to this correctly? Did they consider all aspects of the wording?
Did the tribunal consider reg 4(2A) ie can you fulfil all of the 4 criteria
Safety
Reasonable time ie no more than twice that of non disabled person
Repetition ie repeatedly across the whole day as many times as reasonably required
Acceptable standard
This can comprise significant pain, becoming anxious, out of breath, eg for cooking making a mess, spilling food whilst eating or breaking plates because you drop them, dressing but getting clothes on inside out, or with buttons done mismatched etc etc
Did the tribunal consider what happens for the majority of days. Note this is often miscited as being majority of time which is incorrect.
So to recap look out for
wrong or no evidence
Wrong legal test/s
Cross match ROP and WSOR with correct legal tests you scribble on the copy in the margin or underline things to help.

Also consider whether you felt that the manner of the hearing was appropriate. Did you get a full opportunity to present your case? Did anyone with you get a chance to speak? Were you given the opportunity for breaks in the hearing if you needed these? Were the tribunal members polite? Since they assumed you were able to write a statement etc did they ask you how you wrote this, did you have help?If the tribunal made assumptions did they ask questions about these matters?
When you read the WSOR do you understand why the decision has been made, why the tribunal wanted remove points but couldn't due to lack of warning.
Finally did you feel that the tribunal acted in a fair manner? You would need to have good evidence to show this, but examples could be rudeness, not allowing a break when asked for, indications of bias etc
There is an overriding duty to ensure fairness but in proportion to the nature of the case, and what has happened.
The acknowledgement that the tribunal were to remove points but couldn't due to lack of warning might show an element of bias. Why wasn't the warning given, was this explained? What was said in the hearing - check the ROP for this.
The typos etc in the wsor may indicate a slapdash approach, but this may not be sufficient of itself to indicate an error of law.
If this is a first claim you need to prove that on the Balance of probabilities you should be awarded PIP. If a renewal claim, then DWP have to prove to the same standard of proof.
Did the tribunal actually determine on each descriptor that was in issue?

Did the tribunal ask appropriate questions. If they failed to do this ut could be a breach of their inquisitorial duty to explore/gather the facts if the case.

All of the above examples could comprise an error of law. You need to find at least one arguable, but material error of law. The mere fact you could get to a misnamed place may not be enough to argue a material error. If the WSOR reasoning is plausible but simply says you can get to Chichester instead of Colchester - because you can get to a place, albeit a different one, points are unlikely to be awarded, so probably no error of law.
Material error ie if decided correctly would give sufficient points to create an award. If eg reg 4(2A) is ignored or misunderstood then this could affect each and every descriptor. Likewise reg 7 majority of days.
If the tribunal found you to be exaggerating with out asking questions and/or providing a cogent explanation this could also be a breach of their inquisitorial duty and an error of law on both the failure to enquire and failure to explain.
Exaggeration cases often happen where the tribunal has misunderstood evidence or make incorrect assumptions.
Follow the evidence, what was said by whom and when. Check this against the WSOR reasons.
Given that you were (reluctantly) awarded 6 pts, you would only have to find an error of law to give an extra 2 points. This might be as simple as showing you should have been awarded eg 2 pts instead of 4 against any one descriptor section.
However, it might be wise to consider if you can show at least 8 points should have been awarded but weren't due to errors/s of law. This is because there is clearly some possible doubt over the preexisting 6pts that the tribunal continued with.
If you can discover at least one material error of law, you have 1 mth from the date when the WSOR was sent out to seek an appeal. You will need to write to the tribunal - Head the letter Request to set aside First tier Tribunal Decision and or Request to seek leave to appeal to Upper Tribunal.
Include your name, appeal reference number, type of appeal ie PIP and the date of hearing. Also NI number. You need to include name/ NIno/ appeal ref on all pages - perhaps as a footnote or header.
The First tier Tribunsl regional judge will consider your request. If he agrees there was a material error if law he will set the appeal aside and a new hearing will be set up with a different panel. It will be as if you have simply done MR etc and never had the 'erroneous ' hearing. The R Judge may refer to Upper Tribunal for s further ruling. If the RJudge refuses you can still appeal directly to U Trib.
As with appeal to First tier you can make a late appeal for up to 13 mths after the WSOR date, but you would need to show very good cause. If you are simply a few days out of original time, and this is because your disabilities have prevented a timely set aside request, then explain this. This is likely to be sufficient cause.
I hope this helps.
Good luck.
LL26