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Statement of Reasons after First Tier Tribunal - Advice and Tips please
4 months 3 weeks ago #292851 by MDBond
Statement of Reasons after First Tier Tribunal - Advice and Tips please was created by MDBond
Hi all
I'm going to post what my Statement of Reasons says in full, leaving out the facts not in dispute and making some abbreviations. If the facts not in dispute should be included please let me know. I've also left out the decision statement but can add that to this thread if anyone asks for it. It just said they were refusing the appeal because of my help seeking behaviour and lack of appropriate pain medication or something like that.
I will also make annotations next to places where there is an error of law/error of fact that I can identify, or other point that maybe needs to be made.
I'd really like advice/guidance on what to say etc to get this set aside.
If there are any pointers on what to say exactly or how this should be laid out, please let me know.
A huge thanks to anyone who makes it through this mammoth post. Enjoy!
1. The appellant made a claim for PIP on (date). On (date) she underwent a health assessment by telephone. On (date) the Decision Maker declined entitlement to the benefit, awarding 6 points for daily living (descriptors 1b, 4b, 6b) and 4 points for Mobility (descriptor 12b). A MR request was made on (date) incorporating a formal complaint about both the Health Assessment and the Decision Maker on multiple grounds including incompetence, unprofessional behaviour and discrimination (it is not pertinent for the Tribunal's purposes to report upon the allegations and their subsequent outcome save to note, as follows, that the clinical findings were revised) **A.
On (date) a review of the Health Assessment by the clinical escalations team added descriptor 5b to the daily living component (total 8 points) and amended descriptor 12b to 12d for the mobility component (total ten points). Upon MR a revised award was issued on (date) consistent with the revised health assessment. Accordingly, the appellant was awarded the standard rate of the daily living component and the standard rate of the mobility component from (date) until (date of early 2026). An appeal was duly lodged and the matter was listed for an oral hearing. MDBond attended and was supported by her mother who remained outside. A presiding officer attended on behalf of the DWP.
2. We unanimously refuse the appeal and uphold the decision of the Sec of State.
Issues
3. The issue for the Tribunal is whether, at the date of the decision of the S of S, the Appellant met the criteria for an award of the enhanced rate of either component of the PIP benefit. She suffers from endometriosis, anxiety, depression, migraines, dry eyes (has named 3 other conditions which I've redacted but which are evidenced in my paperwork).
4. Through her appeal submission, she asserts further difficulties with daily living activity 1 preparing food, activity 2 taking nutrition, activity 3 managing treatment and activity 9 mixing with other people as well as mobility activity 1 planning and following journeys and activity 2 moving around.
Facts not in dispute (I have left this out)
Findings of fact and reasons
6. For the purposes of the appeal the appellant's claim rests upon the effects of her physical and mental health to undertake safely, to an acceptable standard, repeatedly and in a timely manner the activities which comprise the functional tests for daily living and mobility as set out in law. The task for the Tribunal is to reach conclusions, on the balance of probabilities, as to her (reliable) functional ability most of the days in the time period set out in the legislation.
Daily Living
7. Insofar as reasoning is provided, the DM appears to accept the HP's (revised) opinion that aids for activities 1, 4, 5 and 6 would alleviate the appellant's pain and fatigue symptoms such that she would be able to undertake them on more than 50% of days, taking into account regulation 4 **B. Whilst the Tribunal has exercised its discretion not to revisit the existing award we are not bound by the reasoning of the DWP and instead must make our own findings based on the available evidence, combined with our expertise.
8. The appellant's primary alleged malady is pain from her endometriosis **C, which renders her severely incapacitated for approx two thirds of the time. She asserts that she has been experiencing this pain for years. It manifests in her being unable to stand up straight, walk around the home safely, look up, take food (other than snacks), reach for pain medication, reliably toilet or wash or dress, or to go out at all.
Physical Health
9. Our conclusion, formed on the balance of probabilities, is that the appellant's account of both her pain management regime and her help-seeking behaviour **D is wholly inconsistent with the asserted duration and severity of pain which is alleged for the following reasons:
a) Whilst we accept that Mefenamic Acid is used to treat pain, the appellant is clear that it is ineffective in alleviating her debilitating pain symptoms which she endures for nearly two thirds of all days, every month. In the circumstances it is not credible that she has not sought additional help. **E
b) Mefenamic Acid is a mild to moderate NSAID. The appellant was clear in evidence that she has not been active in exploring with her GP alternative pain relief and has therefore been passive in this regard. **F Neither has she, in the last couple of decades, attempted to procure over the counter pain relief despite doing this for her migraines **G (Sorry but I just have to say this is all a total lie which is disproved from the audio and I'm stunned they have sunk so low as to make this all up).
c) The appellant's account of being in too much pain to remember take (typo) pain relief lacks both logic and credibility. **H In the vast experience of the Tribunal the onset of pain acts as a reliable trigger to take pain relief. **I
d) The appellant's account of pain making her forgetful also lacks force **J. She has no diagnosed memory problems. She conceded in evidence that her mother is not able to prompt her to take medication. She agreed in evidence that she could nonetheless set a phone alarm to remember to take pain relief (having acknowledged that she can predict with relative accuracy the days of her menstrual cycle on which pain will manifest) but has never thought to do so. **K
e) The appellant displays a similarly passive approach to specialist help for her condition. She has endured endometriosis for over 25 years. Faced with such debilitating pain, and having been under the care of a consultant gynaecologist until 2018 (page 61), it is not credible that she has not sought specialist help. **L
Firstly, she is educated and articulate. Secondly, she demonstrates in the paperwork ample skill and tenacity in asserting her rights. Even if it is true that she was unaware of an endometriosis clinic until her GP mentioned it in late 2022 (date redacted), is (typo) lacks credibility that 12 months later she had taken no further action to secure a referral such that by the date of the Tribunal hearing she still had not received an appointment. **M
f) The medical evidence in the bundle is unenlightening. It largely predates the claim by many years and focusses on her eye condition as well as a time in 2016/2017 when she had an acute gynaecological condition (fibroids). **N
10. In conclusion, we reject the appellant's account of the debilitating effects of her pain from endometriosis for the above reasons. We accept that she has endometriosis but we find that on the balance of probabilities such pain does not cause functional impairment for more than 50% of days. For reasons already mentioned we have not sought to revisit the award made by the S of State as we are not gatekeepers of the public purse and our role is independent. **O
Mental Health
11. We find that the appellant's anxiety and depression does not cause functional impairment on more than 50% of days for the following reasons:
a) The appellant's history does not support a conclusion that her mental ill health is significantly limiting. She asserts that she has endured issues with motivation due to depression since 2017 (5 years preceding the claim) but did not receive treatment until 2022, indicating that she coped with it without needing to bring it to her GP's attention until that time. **P
b) She is non compliant with her sertraline medication. Having rejected as unlikely the appellant's argument that her non compliance was due to physical pain, we conclude that the appellant's non compliance with anti depressant medication is indicative of her being able to manage her mental heath without it. **Q
If she was too unmotivated to take anti depressant medication (our having rejected that she was not in too much pain to decline to decline to do so) then she would reasonably have spoken to her GP about this after 2022. There is no evidence that she has done so. **R
In oral evidence she confirmed that she has only spoken to her GP about her mental health that one time in late 2022. **S
c) The appellant's history displays a passive attitude to her mental health condition. She appears to be content to wait for CBT sessions to become available more than a year after she took up her GP's recommendation to self refer for this programme, indicating that she is coping. **T
d) We adopt the HCP's observations on page 122 regarding motivation displayed by the appellant. **U
Disputed descriptors
12. Activity 1. No additional points are awarded. We do not accept that the appellant is limited by pain on more than 50% of days such that she is unable to prepare food. Paragraphs 9 and 10 above explain the reasoning.
13. Activity 2. No points are awarded. We do not accept that the appellant is limited by pain on more than 50% of days such that she is unable to reliably take nutrition.
14. Activity 3 - no points are awarded. We do not accept that the appellant is limited by pain on more than 50% of days such that she forgets to take medication.
15. Activity 9 - no points are awarded. Firstly the appellant's argument at pages 6 and 7 refers to physical pain being a barrier to leaving her home. The statutory test does not incorporate this element when assessing engagement. Secondly it relies upon behaviours exhibited (due to pain) if she was in the company of others. We have already concluded that the appellant is not limited by pain on more than 50% of days. Lastly the appellant's understanding of extreme psychological distress is unaligned with the statutory test. When this matter was explored in evidence she gave as a reference point the support she receives from her mother when in the presence of other people, where in she described that her mother would be able to seek help/rescue if the appellant got into difficulties (ergo a migraine) and thus provided a form of reassurance and calm. ** V
16 Activity 11. No points are awarded. The appellant was clear that she could go out alone, if required, on her "good days". This would include driving and using public transport as well as planning an unfamiliar journey on her telephone app. Her mother's role in accompanying her would be to trigger rescue if acute help was needed. None of this aligns with the statutory tests for Activity 11. We have already concluded that in our view the majority of the appellant's days are "good days".
17. Activity 12. No points are awarded. The appellant's argument rests on limitation due to pain about which we have already drawn conclusions. She walked to the Tribunal hearing a distance of 61 m without stopping . ** W
We reject for the reasons given the appellant's assertions that she walks 3 to 5 times slower than normal (by reference to Regulation 4) due to pain. She has no other condition that would limit her ability to walk normally and pain free. ** X
18. The Tribunal therefore rejects the appeal and upholds the decision of the SS (oh sorry, that's my typo!
).
My annotations
A
(it is not pertinent for the Tribunal's purposes to report upon the allegations and their subsequent outcome save to note, as follows, that the clinical findings were revised)
They have failed to mention that the assessor Capita confirmed their own assessment had 'not been up to standard', apologised and offered me compensation. I believe this is deliberate because if they admit they know it is not up to par, then why are they referring to it/accepting it as evidence in the SoR?
B
7. Insofar as reasoning is provided, the DM appears to accept the HP's (revised) opinion that aids for activities 1, 4, 5 and 6 would alleviate the appellant's pain and fatigue symptoms such that she would be able to undertake them on more than 50% of days, taking into account regulation 4 **B
No aids have been identified by the assessor for activity 1 at all, the rest I need to check. But if they have no identified any aids, and I have asked and they still have not identified one, and neither do I/can I use one safely that I have said I can use, why have the Tribunal said this and yet again failed to identify any aid themselves?
C
8. The appellant's primary alleged malady is pain from her endometriosis **C
Alleged? I have documented history of having been given the same NSAID for over 20 years and supplied some of this evidence to Tribunal and they say later they accept the NSAID is to treat pain, so why use the word alleged? Also why not mention the depression/anxiety as that is a related condition which I have made clear.
D
9. Our conclusion, formed on the balance of probabilities, is that the appellant's account of both her pain management regime and her help-seeking behaviour **D
What does help seeking behaviour mean? I don't believe this has been explained, or why it is bad/good.
E
a) Whilst we accept that Mefenamic Acid is used to treat pain, the appellant is clear that it is ineffective in alleviating her debilitating pain symptoms which she endures for nearly two thirds of all days, every month. In the circumstances it is not credible that she has not sought additional help. **E
I said in evidence that I have told my GP I couldn't cope with the pain. His response was to refer me to an endo clinic. How can I challenge my GPs decision not to offer anything else? In the past when I have been in excruciating pain, and have desperately asked a different GP for help as I would likely die from the pain, he suggested stopping my period completely and prescribed a fertility drug but only short term. No GP has ever offered or discussed or tried to offer me anything stronger. How is this my fault?
Also I have looked into it and the stronger painkillers will affect my fertility/ability to get pregnant, hormones, mental health or clash with my migraines/make my health worse. I have always wanted to try and have children so this is probably why I have never been offered a stronger painkiller. My consultant's letter or a past GP's letter in the bundle makes it clear I want to try for children, so again this is likely why. I was not probed on reasons why I was not given a stronger painkiller, I was simply asked what conversation I had with my GP over and over again.
It is therefore not true I have not sought additional help, and I gave and have supplied evidence and could supply more evidence of this. Not being given stronger painkillers is surely a decision for my GP to make, not me.
F
b) Mefenamic Acid is a mild to moderate NSAID. The appellant was clear in evidence that she has not been active in exploring with her GP alternative pain relief and has therefore been passive in this regard. **F
Already answered this in E. Not been passive. GP simply never answered me in the last conversation or they will likely prescribe a fertility drug to stop my periods/stop me getting pregnant which I wouldn't want.
G
Neither has she, in the last couple of decades, attempted to procure over the counter pain relief despite doing this for her migraines **G
The judge asked me if I'd tried OTC pain relief and I said I had but they don't do anything, so this is a lie.
Having tried OTC sometime in the 2000s and finding it didn't work at all, not even remotely, why would I then try it again at any point in the last ten years? And why would OTC be any better than a prescribed painkiller? My NSAID is also not just a painkiller it is to lessen the blood flow. So no OTC will do that.
I used to be prescribed my migraine relief drug but like a lot of stuff it's no longer prescribed so forced to buy OTC. It is not a matter of picking and choosing what I can get OTC.
H
c) The appellant's account of being in too much pain to remember take (typo) pain relief lacks both logic and credibility. **H
It probably lacks logic and credibility because I didn't say this. I said it's mostly because my pain is so overwhelming that it is hard to remember anything, or to do anything even if I do remember. I also said I limit what I eat and drink including all medications because of the pain, painful bowel movements, and vomiting. I avoid going to the toilet because it's so painful and I cannot walk upright so it's not safe as I can't see properly to avoid/judge obstacles, etc all of which I said. It also obviously means I can't cook safely/eat. It is a complete falsehood and total minimisation to state I don't take painkillers because I 'forget'. I have made these comments in my paperwork/application too so it's a bit ridiculous to ignore all of this.
I
In the vast experience of the Tribunal the onset of pain acts as a reliable trigger to take pain relief. **I
Does the panel have vast experience of endometriosis? Clearly not. Already explained above the lengths I have to go to in order to cope with the pain and the impact it has on me.
J
d) The appellant's account of pain making her forgetful also lacks force **J.
Already explained in H and I, the pain is all consuming and overwhelming, it is impossible to do much, and yes if I think the painkiller is not very effective, why would I bother taking it in these dire circumstances? I think it's clear they just don't want to believe me.
K
She agreed in evidence that she could nonetheless set a phone alarm to remember to take pain relief (having acknowledged that she can predict with relative accuracy the days of her menstrual cycle on which pain will manifest) but has never thought to do so. **K
Wrong. The GP was asking about setting alarms for the sertraline, not painkiller. So this is wrong.
Re my period, by this stage I did not feel comfortable disclosing everything to the panel so I simply went along with what they wanted (being fed up of being bombarded with 90+ repeat questions) so I think I said I can roughly tell when my period will start, but it was not in response to being asked about using a timer 'to remember'. I will have to check my transcript on this.
I actually can't predict with accuracy when my period will start or when the pain will start (I definitely cannot predict the pain as my body decides this, not me) and I did not say this! If I could I'd bottle it and sell it to all the women in the world who would love to know that I use an app to try and help me to gauge a rough date but this can vary by up to 7 days. The last two months I have started much earlier than expected. I can't predict this with accuracy and to suggest I or any other woman can is a nonsense. The fact that a man has written this ridiculous statement/drawn this conclusion just makes him look even more stupid as it shows he has no understanding at all of my condition or how different women's periods work.
L
e) The appellant displays a similarly passive approach to specialist help for her condition. She has endured endometriosis for over 25 years. Faced with such debilitating pain, and having been under the care of a consultant gynaecologist until 2018 (page 61), it is not credible that she has not sought specialist help. **L
What do they mean by specialist help? I have been to my GP multiple times over the years and constantly been dismissed or ignored. I didn't even know I had endo until it was discovered and diagnosed by accident after a fibroid surgery and my second gynae surgery and after multiple scans.
The consultant was assigned after my massive fibroid (a symptom of endometriosis) was discovered, after I was ignored by my GP when I first saw them complaining about pain and something in my tummy but was not even examined until it grew to a mammoth size and the pain was all month, outside of my period. I did not include any of my letters documenting that entire sorry episode in my evidence but happy to now.
In fact I was not assigned one consultant, but 3 different ones, one for cancer, then one for the fibroid who refused to perform keyhole surgery, then a different one for the fibroid who finally performed the keyhole surgery. Again I can document the struggle I had to endure to fight for over two years for surgery if anyone wants it, but I was not asked about any of this in the hearing so it was not put to me.
Not exactly passive and it's not true I've not had or sought specialist help. So why say this?
If he means I've been passive for the past few years, maybe that might be because I told my GP I couldn't cope and he said he'd refer me and there would be a very long wait post covid and not to contact him if it took a long time? He said the same about the counselling/mental health input. Maybe this passivity might also be something to do with my depression/fatigue? After years of fighting and not being heard and being forced to come to terms with the fact I may never have a family due to time running out, maybe all of this has taken a toll on my mental health?
M
Even if it is true that she was unaware of an endometriosis clinic until her GP mentioned it in late 2022 (date redacted), is (typo) lacks credibility that 12 months later she had taken no further action to secure a referral such that by the date of the Tribunal hearing she still had not received an appointment. **M
It is true, I didn't know an endo clinic existed locally until he mentioned it.
As stated above, my GP said it would be a very long wait and not to bother him.
Despite this I told the panel I did contact my GP in November 23 and sadly got put through to a different GP who failed to answer anything about my referral - didn't even confirm if one had been made - and instead asked if I had endo. I confirmed the diagnosis and he just said he was sending me for an ultrasound!!! Which was obviously very frustrating.
Again they have ignored what I told them. Or perhaps don't believe me but I can document the fact I was sent for an ultrasound as I declined to attend it. I can document this but I wasn't asked to in the hearing, I simply told them what happened which they have ignored.
N
f) The medical evidence in the bundle is unenlightening. It largely predates the claim by many years and focusses on her eye condition as well as a time in 2016/2017 when she had an acute gynaecological condition (fibroids). **N
Why are you mentioning I haven't done anything about my pain or endo etc for decades, yet when I supply evidence to contradict this, you complain about it? Bizarre.
Fibroids are an endometriosis symptom.
My fibroid letters are from my GP and my consultant stating how difficult life was for me at the time having to carry a pain causing watermelon sized tumour in my stomach, the impact it was having on me and confirm my endo diagnosis post surgery. It also confirms I have lesions which cannot be treated by painkillers or cannot be removed by surgery so I have to live with them. The lesions were not referred to by the GP when she quoted the letter from the consultant confirming the diagnosis.
Again I have no idea why they are slamming this as unenlightening. If you read it, you might understand why it's in the bundle.
The other letters are also to confirm diagnoses about my other conditions. Not sure why this is so offensive to include as evidence?
O
For reasons already mentioned we have not sought to revisit the award made by the S of State as we are not gatekeepers of the public purse and our role is independent. **O
I appreciate many of you don't agree with me on this point but the judge is effectively a keeper of the public purse seeing as he's the head of legal in the local council. All public sector legal workers are told they are keepers of the public purse. So I don't agree his role is independent. Is it worth mentioning this assertion may not be entirely true?
P
a) The appellant's history does not support a conclusion that her mental ill health is significantly limiting. She asserts that she has endured issues with motivation due to depression since 2017 (5 years preceding the claim) but did not receive treatment until 2022, indicating that she coped with it without needing to bring it to her GP's attention until that time. **P
Wow.
I was not asked about this in the hearing.
I will need to check but if anything relevant to this was said then I likely said I didn't want to accept my diagnosis and I'm still struggling to accept it and the impact my condition has had on my whole life. I had struggled with the depression since I had to live with the massive fibroid for years, then after getting the diagnosis I've struggled to cope with the realisation I have this condition and will likely never have the family I wanted. I am ashamed and embarrassed of my condition and the time it has robbed me of hence why I can't talk about it without getting upset. I was sobbing 42 times in the hearing and was blowing my nose 9 times.
Some of this I couldn't say to them as they were frequently interrupting me, or I was crying, or I felt I couldn't share it with them as they were not showing any empathy or compassion.
I have tried to maintain a façade of normality for decades but I just can't do it anymore. I also find it hard to talk about my feelings without crying which I'm sure my GP will confirm in writing if I ask him to so I avoid that.
But hey I guess I'm coping. Lol.
Q
b) She is non compliant with her sertraline medication. Having rejected as unlikely the appellant's argument that her non compliance was due to physical pain, we conclude that the appellant's non compliance with anti depressant medication is indicative of her being able to manage her mental heath without it. **Q
Again lol.
I explained in H what the answer is to this and the fact I cannot take meds or limit my intake of food and water inc medication to avoid toileting. etc and more pain and risks to my safety.
Also I actually told the panel I knew I would not be able to comply with the anti depressant medication due to the pain but my GP had pressured me to take it. I told them this is why I had pushed for therapy/counselling as well as being uncomfortable with being on more meds. They have ignored what I told them.
Historically I've been prescribed anti depressants before decades ago so there is a long history of me reporting this to my GP in the past. I stopped taking the anti depressants because they were not helping me. They didn't ask this.
R
If she was too unmotivated to take anti depressant medication (our having rejected that she was not in too much pain to decline to decline to do so) then she would reasonably have spoken to her GP about this after 2022. There is no evidence that she has done so. **R
I did speak to my GP as when I called in Nov 23 and got the different GP who didn't listen to me about the endo referral, he said he had to review my meds. I told him I was struggling to take it but he said nothing. Again they ignored what I told them.
S
In oral evidence she confirmed that she has only spoken to her GP about her mental health that one time in late 2022. **S
As stated above, not true.
Also as I struggle to talk about it without crying I would avoid this. I wasn't asked why I hadn't been back to the GP.
Also he had already told me it was a long wait for counselling and so had the therapy people and I had accepted that.
T
c) The appellant's history displays a passive attitude to her mental health condition. She appears to be content to wait for CBT sessions to become available more than a year after she took up her GP's recommendation to self refer for this programme, indicating that she is coping. **T
Again wow and lol Simply not true.
I supplied evidence that I have self referred and I'm on a waiting list. I went to the trouble of getting more evidence before the hearing to prove I am still on a waiting list.
How else is a waiting list meant to work without some level of acceptance?
In the meantime I tried to do some webinar sessions with them but these were not tailored, were 2 hours long, and although I didn't have to attend every single one weekly - which I can't do anyway due to my endo - this was a struggle to complete or keep up with due to my endo. I told them all of this but they have ignored this.
U
d) We adopt the HCP's observations on page 122 regarding motivation displayed by the appellant. **U
I'll have to refer back to what this says but my first question is why are you going with a discredited report? And with a health professional who no longer works for capita, either due to firing or what I don't know, but why are you accepting their version of events when it is discredited?
I have also supplied a written transcript of that assessment which should tell them I never said what the HP claims I did. So why accept it?
I will need to check this obviously but I think it will say something like - she writes online courses therefore she has no problems with motivation. I told her I did this on the minority of days and I was struggling to complete them due to illness/fatigue and depression. Transcript should show this.
V
15. Activity 9 - no points are awarded. Firstly the appellant's argument at pages 6 and 7 refers to physical pain being a barrier to leaving her home. The statutory test does not incorporate this element when assessing engagement. Secondly it relies upon behaviours exhibited (due to pain) if she was in the company of others. We have already concluded that the appellant is not limited by pain on more than 50% of days. Lastly the appellant's understanding of extreme psychological distress is unaligned with the statutory test. When this matter was explored in evidence she gave as a reference point the support she receives from her mother when in the presence of other people, where in she described that her mother would be able to seek help/rescue if the appellant got into difficulties (ergo a migraine) and thus provided a form of reassurance and calm. ** V
If it is the case I need support to socialise/talk etc from my mum, then why no points?
Oh I forgot, you don't accept this happens on 50% of days.
They ignored my sobbing 42 times, this probably explains why.
I explained I cannot go out nor socialise or interact socially at all due to pain/depression/fatigue. I can't walk upright so it would be socially embarrassing as well as cause me injury to try and walk like this.
I explained I cannot socialise nor do I have any desire to go out because my condition means my life is totally different to everyone else's and this makes me feel worse. My friendships have crumbled and are non existent. People will ask what have you been doing and what can I say? They all have families and I don't which makes me feel worse. It is too upsetting and isolating for me. Also my uncontrollable sobbing should have told them I wasn't ok but clearly it didn't.
W
17. Activity 12. No points are awarded. The appellant's argument rests on limitation due to pain about which we have already drawn conclusions. She walked to the Tribunal hearing a distance of 61 m without stopping . ** W
It was not put to me that the distance I walked was 61m!
It is absolutely not 61m! It is 20/30 metres at most.
This is outrageously wrong as I told them I walked up the side road to the venue slowly and with support from my mother and I fundamentally disagree with this assertion.
X
We reject for the reasons given the appellant's assertions that she walks 3 to 5 times slower than normal (by reference to Regulation 4) due to pain. She has no other condition that would limit her ability to walk normally and pain free. ** X
It is not just pain that limits or slows my walking. I also explained to the panel I had fatigue and was slow on that day. I also have depression which I believe has an impact on both my walking and speech/thinking. If not I've no idea why they were constantly interrupting instead of letting me speak.
I'm going to post what my Statement of Reasons says in full, leaving out the facts not in dispute and making some abbreviations. If the facts not in dispute should be included please let me know. I've also left out the decision statement but can add that to this thread if anyone asks for it. It just said they were refusing the appeal because of my help seeking behaviour and lack of appropriate pain medication or something like that.
I will also make annotations next to places where there is an error of law/error of fact that I can identify, or other point that maybe needs to be made.
I'd really like advice/guidance on what to say etc to get this set aside.
If there are any pointers on what to say exactly or how this should be laid out, please let me know.
A huge thanks to anyone who makes it through this mammoth post. Enjoy!
1. The appellant made a claim for PIP on (date). On (date) she underwent a health assessment by telephone. On (date) the Decision Maker declined entitlement to the benefit, awarding 6 points for daily living (descriptors 1b, 4b, 6b) and 4 points for Mobility (descriptor 12b). A MR request was made on (date) incorporating a formal complaint about both the Health Assessment and the Decision Maker on multiple grounds including incompetence, unprofessional behaviour and discrimination (it is not pertinent for the Tribunal's purposes to report upon the allegations and their subsequent outcome save to note, as follows, that the clinical findings were revised) **A.
On (date) a review of the Health Assessment by the clinical escalations team added descriptor 5b to the daily living component (total 8 points) and amended descriptor 12b to 12d for the mobility component (total ten points). Upon MR a revised award was issued on (date) consistent with the revised health assessment. Accordingly, the appellant was awarded the standard rate of the daily living component and the standard rate of the mobility component from (date) until (date of early 2026). An appeal was duly lodged and the matter was listed for an oral hearing. MDBond attended and was supported by her mother who remained outside. A presiding officer attended on behalf of the DWP.
2. We unanimously refuse the appeal and uphold the decision of the Sec of State.
Issues
3. The issue for the Tribunal is whether, at the date of the decision of the S of S, the Appellant met the criteria for an award of the enhanced rate of either component of the PIP benefit. She suffers from endometriosis, anxiety, depression, migraines, dry eyes (has named 3 other conditions which I've redacted but which are evidenced in my paperwork).
4. Through her appeal submission, she asserts further difficulties with daily living activity 1 preparing food, activity 2 taking nutrition, activity 3 managing treatment and activity 9 mixing with other people as well as mobility activity 1 planning and following journeys and activity 2 moving around.
Facts not in dispute (I have left this out)
Findings of fact and reasons
6. For the purposes of the appeal the appellant's claim rests upon the effects of her physical and mental health to undertake safely, to an acceptable standard, repeatedly and in a timely manner the activities which comprise the functional tests for daily living and mobility as set out in law. The task for the Tribunal is to reach conclusions, on the balance of probabilities, as to her (reliable) functional ability most of the days in the time period set out in the legislation.
Daily Living
7. Insofar as reasoning is provided, the DM appears to accept the HP's (revised) opinion that aids for activities 1, 4, 5 and 6 would alleviate the appellant's pain and fatigue symptoms such that she would be able to undertake them on more than 50% of days, taking into account regulation 4 **B. Whilst the Tribunal has exercised its discretion not to revisit the existing award we are not bound by the reasoning of the DWP and instead must make our own findings based on the available evidence, combined with our expertise.
8. The appellant's primary alleged malady is pain from her endometriosis **C, which renders her severely incapacitated for approx two thirds of the time. She asserts that she has been experiencing this pain for years. It manifests in her being unable to stand up straight, walk around the home safely, look up, take food (other than snacks), reach for pain medication, reliably toilet or wash or dress, or to go out at all.
Physical Health
9. Our conclusion, formed on the balance of probabilities, is that the appellant's account of both her pain management regime and her help-seeking behaviour **D is wholly inconsistent with the asserted duration and severity of pain which is alleged for the following reasons:
a) Whilst we accept that Mefenamic Acid is used to treat pain, the appellant is clear that it is ineffective in alleviating her debilitating pain symptoms which she endures for nearly two thirds of all days, every month. In the circumstances it is not credible that she has not sought additional help. **E
b) Mefenamic Acid is a mild to moderate NSAID. The appellant was clear in evidence that she has not been active in exploring with her GP alternative pain relief and has therefore been passive in this regard. **F Neither has she, in the last couple of decades, attempted to procure over the counter pain relief despite doing this for her migraines **G (Sorry but I just have to say this is all a total lie which is disproved from the audio and I'm stunned they have sunk so low as to make this all up).
c) The appellant's account of being in too much pain to remember take (typo) pain relief lacks both logic and credibility. **H In the vast experience of the Tribunal the onset of pain acts as a reliable trigger to take pain relief. **I
d) The appellant's account of pain making her forgetful also lacks force **J. She has no diagnosed memory problems. She conceded in evidence that her mother is not able to prompt her to take medication. She agreed in evidence that she could nonetheless set a phone alarm to remember to take pain relief (having acknowledged that she can predict with relative accuracy the days of her menstrual cycle on which pain will manifest) but has never thought to do so. **K
e) The appellant displays a similarly passive approach to specialist help for her condition. She has endured endometriosis for over 25 years. Faced with such debilitating pain, and having been under the care of a consultant gynaecologist until 2018 (page 61), it is not credible that she has not sought specialist help. **L
Firstly, she is educated and articulate. Secondly, she demonstrates in the paperwork ample skill and tenacity in asserting her rights. Even if it is true that she was unaware of an endometriosis clinic until her GP mentioned it in late 2022 (date redacted), is (typo) lacks credibility that 12 months later she had taken no further action to secure a referral such that by the date of the Tribunal hearing she still had not received an appointment. **M
f) The medical evidence in the bundle is unenlightening. It largely predates the claim by many years and focusses on her eye condition as well as a time in 2016/2017 when she had an acute gynaecological condition (fibroids). **N
10. In conclusion, we reject the appellant's account of the debilitating effects of her pain from endometriosis for the above reasons. We accept that she has endometriosis but we find that on the balance of probabilities such pain does not cause functional impairment for more than 50% of days. For reasons already mentioned we have not sought to revisit the award made by the S of State as we are not gatekeepers of the public purse and our role is independent. **O
Mental Health
11. We find that the appellant's anxiety and depression does not cause functional impairment on more than 50% of days for the following reasons:
a) The appellant's history does not support a conclusion that her mental ill health is significantly limiting. She asserts that she has endured issues with motivation due to depression since 2017 (5 years preceding the claim) but did not receive treatment until 2022, indicating that she coped with it without needing to bring it to her GP's attention until that time. **P
b) She is non compliant with her sertraline medication. Having rejected as unlikely the appellant's argument that her non compliance was due to physical pain, we conclude that the appellant's non compliance with anti depressant medication is indicative of her being able to manage her mental heath without it. **Q
If she was too unmotivated to take anti depressant medication (our having rejected that she was not in too much pain to decline to decline to do so) then she would reasonably have spoken to her GP about this after 2022. There is no evidence that she has done so. **R
In oral evidence she confirmed that she has only spoken to her GP about her mental health that one time in late 2022. **S
c) The appellant's history displays a passive attitude to her mental health condition. She appears to be content to wait for CBT sessions to become available more than a year after she took up her GP's recommendation to self refer for this programme, indicating that she is coping. **T
d) We adopt the HCP's observations on page 122 regarding motivation displayed by the appellant. **U
Disputed descriptors
12. Activity 1. No additional points are awarded. We do not accept that the appellant is limited by pain on more than 50% of days such that she is unable to prepare food. Paragraphs 9 and 10 above explain the reasoning.
13. Activity 2. No points are awarded. We do not accept that the appellant is limited by pain on more than 50% of days such that she is unable to reliably take nutrition.
14. Activity 3 - no points are awarded. We do not accept that the appellant is limited by pain on more than 50% of days such that she forgets to take medication.
15. Activity 9 - no points are awarded. Firstly the appellant's argument at pages 6 and 7 refers to physical pain being a barrier to leaving her home. The statutory test does not incorporate this element when assessing engagement. Secondly it relies upon behaviours exhibited (due to pain) if she was in the company of others. We have already concluded that the appellant is not limited by pain on more than 50% of days. Lastly the appellant's understanding of extreme psychological distress is unaligned with the statutory test. When this matter was explored in evidence she gave as a reference point the support she receives from her mother when in the presence of other people, where in she described that her mother would be able to seek help/rescue if the appellant got into difficulties (ergo a migraine) and thus provided a form of reassurance and calm. ** V
16 Activity 11. No points are awarded. The appellant was clear that she could go out alone, if required, on her "good days". This would include driving and using public transport as well as planning an unfamiliar journey on her telephone app. Her mother's role in accompanying her would be to trigger rescue if acute help was needed. None of this aligns with the statutory tests for Activity 11. We have already concluded that in our view the majority of the appellant's days are "good days".
17. Activity 12. No points are awarded. The appellant's argument rests on limitation due to pain about which we have already drawn conclusions. She walked to the Tribunal hearing a distance of 61 m without stopping . ** W
We reject for the reasons given the appellant's assertions that she walks 3 to 5 times slower than normal (by reference to Regulation 4) due to pain. She has no other condition that would limit her ability to walk normally and pain free. ** X
18. The Tribunal therefore rejects the appeal and upholds the decision of the SS (oh sorry, that's my typo!
).My annotations
A
(it is not pertinent for the Tribunal's purposes to report upon the allegations and their subsequent outcome save to note, as follows, that the clinical findings were revised)
They have failed to mention that the assessor Capita confirmed their own assessment had 'not been up to standard', apologised and offered me compensation. I believe this is deliberate because if they admit they know it is not up to par, then why are they referring to it/accepting it as evidence in the SoR?
B
7. Insofar as reasoning is provided, the DM appears to accept the HP's (revised) opinion that aids for activities 1, 4, 5 and 6 would alleviate the appellant's pain and fatigue symptoms such that she would be able to undertake them on more than 50% of days, taking into account regulation 4 **B
No aids have been identified by the assessor for activity 1 at all, the rest I need to check. But if they have no identified any aids, and I have asked and they still have not identified one, and neither do I/can I use one safely that I have said I can use, why have the Tribunal said this and yet again failed to identify any aid themselves?
C
8. The appellant's primary alleged malady is pain from her endometriosis **C
Alleged? I have documented history of having been given the same NSAID for over 20 years and supplied some of this evidence to Tribunal and they say later they accept the NSAID is to treat pain, so why use the word alleged? Also why not mention the depression/anxiety as that is a related condition which I have made clear.
D
9. Our conclusion, formed on the balance of probabilities, is that the appellant's account of both her pain management regime and her help-seeking behaviour **D
What does help seeking behaviour mean? I don't believe this has been explained, or why it is bad/good.
E
a) Whilst we accept that Mefenamic Acid is used to treat pain, the appellant is clear that it is ineffective in alleviating her debilitating pain symptoms which she endures for nearly two thirds of all days, every month. In the circumstances it is not credible that she has not sought additional help. **E
I said in evidence that I have told my GP I couldn't cope with the pain. His response was to refer me to an endo clinic. How can I challenge my GPs decision not to offer anything else? In the past when I have been in excruciating pain, and have desperately asked a different GP for help as I would likely die from the pain, he suggested stopping my period completely and prescribed a fertility drug but only short term. No GP has ever offered or discussed or tried to offer me anything stronger. How is this my fault?
Also I have looked into it and the stronger painkillers will affect my fertility/ability to get pregnant, hormones, mental health or clash with my migraines/make my health worse. I have always wanted to try and have children so this is probably why I have never been offered a stronger painkiller. My consultant's letter or a past GP's letter in the bundle makes it clear I want to try for children, so again this is likely why. I was not probed on reasons why I was not given a stronger painkiller, I was simply asked what conversation I had with my GP over and over again.
It is therefore not true I have not sought additional help, and I gave and have supplied evidence and could supply more evidence of this. Not being given stronger painkillers is surely a decision for my GP to make, not me.
F
b) Mefenamic Acid is a mild to moderate NSAID. The appellant was clear in evidence that she has not been active in exploring with her GP alternative pain relief and has therefore been passive in this regard. **F
Already answered this in E. Not been passive. GP simply never answered me in the last conversation or they will likely prescribe a fertility drug to stop my periods/stop me getting pregnant which I wouldn't want.
G
Neither has she, in the last couple of decades, attempted to procure over the counter pain relief despite doing this for her migraines **G
The judge asked me if I'd tried OTC pain relief and I said I had but they don't do anything, so this is a lie.Having tried OTC sometime in the 2000s and finding it didn't work at all, not even remotely, why would I then try it again at any point in the last ten years? And why would OTC be any better than a prescribed painkiller? My NSAID is also not just a painkiller it is to lessen the blood flow. So no OTC will do that.
I used to be prescribed my migraine relief drug but like a lot of stuff it's no longer prescribed so forced to buy OTC. It is not a matter of picking and choosing what I can get OTC.
H
c) The appellant's account of being in too much pain to remember take (typo) pain relief lacks both logic and credibility. **H
It probably lacks logic and credibility because I didn't say this. I said it's mostly because my pain is so overwhelming that it is hard to remember anything, or to do anything even if I do remember. I also said I limit what I eat and drink including all medications because of the pain, painful bowel movements, and vomiting. I avoid going to the toilet because it's so painful and I cannot walk upright so it's not safe as I can't see properly to avoid/judge obstacles, etc all of which I said. It also obviously means I can't cook safely/eat. It is a complete falsehood and total minimisation to state I don't take painkillers because I 'forget'. I have made these comments in my paperwork/application too so it's a bit ridiculous to ignore all of this.
I
In the vast experience of the Tribunal the onset of pain acts as a reliable trigger to take pain relief. **I
Does the panel have vast experience of endometriosis? Clearly not. Already explained above the lengths I have to go to in order to cope with the pain and the impact it has on me.
J
d) The appellant's account of pain making her forgetful also lacks force **J.
Already explained in H and I, the pain is all consuming and overwhelming, it is impossible to do much, and yes if I think the painkiller is not very effective, why would I bother taking it in these dire circumstances? I think it's clear they just don't want to believe me.
K
She agreed in evidence that she could nonetheless set a phone alarm to remember to take pain relief (having acknowledged that she can predict with relative accuracy the days of her menstrual cycle on which pain will manifest) but has never thought to do so. **K
Wrong. The GP was asking about setting alarms for the sertraline, not painkiller. So this is wrong.
Re my period, by this stage I did not feel comfortable disclosing everything to the panel so I simply went along with what they wanted (being fed up of being bombarded with 90+ repeat questions) so I think I said I can roughly tell when my period will start, but it was not in response to being asked about using a timer 'to remember'. I will have to check my transcript on this.
I actually can't predict with accuracy when my period will start or when the pain will start (I definitely cannot predict the pain as my body decides this, not me) and I did not say this! If I could I'd bottle it and sell it to all the women in the world who would love to know that
I use an app to try and help me to gauge a rough date but this can vary by up to 7 days. The last two months I have started much earlier than expected. I can't predict this with accuracy and to suggest I or any other woman can is a nonsense. The fact that a man has written this ridiculous statement/drawn this conclusion just makes him look even more stupid as it shows he has no understanding at all of my condition or how different women's periods work.L
e) The appellant displays a similarly passive approach to specialist help for her condition. She has endured endometriosis for over 25 years. Faced with such debilitating pain, and having been under the care of a consultant gynaecologist until 2018 (page 61), it is not credible that she has not sought specialist help. **L
What do they mean by specialist help? I have been to my GP multiple times over the years and constantly been dismissed or ignored. I didn't even know I had endo until it was discovered and diagnosed by accident after a fibroid surgery and my second gynae surgery and after multiple scans.
The consultant was assigned after my massive fibroid (a symptom of endometriosis) was discovered, after I was ignored by my GP when I first saw them complaining about pain and something in my tummy but was not even examined until it grew to a mammoth size and the pain was all month, outside of my period. I did not include any of my letters documenting that entire sorry episode in my evidence but happy to now.
In fact I was not assigned one consultant, but 3 different ones, one for cancer, then one for the fibroid who refused to perform keyhole surgery, then a different one for the fibroid who finally performed the keyhole surgery. Again I can document the struggle I had to endure to fight for over two years for surgery if anyone wants it, but I was not asked about any of this in the hearing so it was not put to me.
Not exactly passive and it's not true I've not had or sought specialist help. So why say this?
If he means I've been passive for the past few years, maybe that might be because I told my GP I couldn't cope and he said he'd refer me and there would be a very long wait post covid and not to contact him if it took a long time? He said the same about the counselling/mental health input. Maybe this passivity might also be something to do with my depression/fatigue? After years of fighting and not being heard and being forced to come to terms with the fact I may never have a family due to time running out, maybe all of this has taken a toll on my mental health?
M
Even if it is true that she was unaware of an endometriosis clinic until her GP mentioned it in late 2022 (date redacted), is (typo) lacks credibility that 12 months later she had taken no further action to secure a referral such that by the date of the Tribunal hearing she still had not received an appointment. **M
It is true, I didn't know an endo clinic existed locally until he mentioned it.
As stated above, my GP said it would be a very long wait and not to bother him.
Despite this I told the panel I did contact my GP in November 23 and sadly got put through to a different GP who failed to answer anything about my referral - didn't even confirm if one had been made - and instead asked if I had endo. I confirmed the diagnosis and he just said he was sending me for an ultrasound!!! Which was obviously very frustrating.
Again they have ignored what I told them. Or perhaps don't believe me but I can document the fact I was sent for an ultrasound as I declined to attend it. I can document this but I wasn't asked to in the hearing, I simply told them what happened which they have ignored.
N
f) The medical evidence in the bundle is unenlightening. It largely predates the claim by many years and focusses on her eye condition as well as a time in 2016/2017 when she had an acute gynaecological condition (fibroids). **N
Why are you mentioning I haven't done anything about my pain or endo etc for decades, yet when I supply evidence to contradict this, you complain about it? Bizarre.
Fibroids are an endometriosis symptom.
My fibroid letters are from my GP and my consultant stating how difficult life was for me at the time having to carry a pain causing watermelon sized tumour in my stomach, the impact it was having on me and confirm my endo diagnosis post surgery. It also confirms I have lesions which cannot be treated by painkillers or cannot be removed by surgery so I have to live with them. The lesions were not referred to by the GP when she quoted the letter from the consultant confirming the diagnosis.
Again I have no idea why they are slamming this as unenlightening. If you read it, you might understand why it's in the bundle.
The other letters are also to confirm diagnoses about my other conditions. Not sure why this is so offensive to include as evidence?
O
For reasons already mentioned we have not sought to revisit the award made by the S of State as we are not gatekeepers of the public purse and our role is independent. **O
I appreciate many of you don't agree with me on this point but the judge is effectively a keeper of the public purse seeing as he's the head of legal in the local council. All public sector legal workers are told they are keepers of the public purse. So I don't agree his role is independent. Is it worth mentioning this assertion may not be entirely true?
P
a) The appellant's history does not support a conclusion that her mental ill health is significantly limiting. She asserts that she has endured issues with motivation due to depression since 2017 (5 years preceding the claim) but did not receive treatment until 2022, indicating that she coped with it without needing to bring it to her GP's attention until that time. **P
Wow.
I was not asked about this in the hearing.
I will need to check but if anything relevant to this was said then I likely said I didn't want to accept my diagnosis and I'm still struggling to accept it and the impact my condition has had on my whole life. I had struggled with the depression since I had to live with the massive fibroid for years, then after getting the diagnosis I've struggled to cope with the realisation I have this condition and will likely never have the family I wanted. I am ashamed and embarrassed of my condition and the time it has robbed me of hence why I can't talk about it without getting upset. I was sobbing 42 times in the hearing and was blowing my nose 9 times.
Some of this I couldn't say to them as they were frequently interrupting me, or I was crying, or I felt I couldn't share it with them as they were not showing any empathy or compassion.
I have tried to maintain a façade of normality for decades but I just can't do it anymore. I also find it hard to talk about my feelings without crying which I'm sure my GP will confirm in writing if I ask him to so I avoid that.
But hey I guess I'm coping. Lol.
Q
b) She is non compliant with her sertraline medication. Having rejected as unlikely the appellant's argument that her non compliance was due to physical pain, we conclude that the appellant's non compliance with anti depressant medication is indicative of her being able to manage her mental heath without it. **Q
Again lol.
I explained in H what the answer is to this and the fact I cannot take meds or limit my intake of food and water inc medication to avoid toileting. etc and more pain and risks to my safety.
Also I actually told the panel I knew I would not be able to comply with the anti depressant medication due to the pain but my GP had pressured me to take it. I told them this is why I had pushed for therapy/counselling as well as being uncomfortable with being on more meds. They have ignored what I told them.
Historically I've been prescribed anti depressants before decades ago so there is a long history of me reporting this to my GP in the past. I stopped taking the anti depressants because they were not helping me. They didn't ask this.
R
If she was too unmotivated to take anti depressant medication (our having rejected that she was not in too much pain to decline to decline to do so) then she would reasonably have spoken to her GP about this after 2022. There is no evidence that she has done so. **R
I did speak to my GP as when I called in Nov 23 and got the different GP who didn't listen to me about the endo referral, he said he had to review my meds. I told him I was struggling to take it but he said nothing. Again they ignored what I told them.
S
In oral evidence she confirmed that she has only spoken to her GP about her mental health that one time in late 2022. **S
As stated above, not true.
Also as I struggle to talk about it without crying I would avoid this. I wasn't asked why I hadn't been back to the GP.
Also he had already told me it was a long wait for counselling and so had the therapy people and I had accepted that.
T
c) The appellant's history displays a passive attitude to her mental health condition. She appears to be content to wait for CBT sessions to become available more than a year after she took up her GP's recommendation to self refer for this programme, indicating that she is coping. **T
Again wow and lol
Simply not true.I supplied evidence that I have self referred and I'm on a waiting list. I went to the trouble of getting more evidence before the hearing to prove I am still on a waiting list.
How else is a waiting list meant to work without some level of acceptance?
In the meantime I tried to do some webinar sessions with them but these were not tailored, were 2 hours long, and although I didn't have to attend every single one weekly - which I can't do anyway due to my endo - this was a struggle to complete or keep up with due to my endo. I told them all of this but they have ignored this.
U
d) We adopt the HCP's observations on page 122 regarding motivation displayed by the appellant. **U
I'll have to refer back to what this says but my first question is why are you going with a discredited report? And with a health professional who no longer works for capita, either due to firing or what I don't know, but why are you accepting their version of events when it is discredited?
I have also supplied a written transcript of that assessment which should tell them I never said what the HP claims I did. So why accept it?
I will need to check this obviously but I think it will say something like - she writes online courses therefore she has no problems with motivation. I told her I did this on the minority of days and I was struggling to complete them due to illness/fatigue and depression. Transcript should show this.
V
15. Activity 9 - no points are awarded. Firstly the appellant's argument at pages 6 and 7 refers to physical pain being a barrier to leaving her home. The statutory test does not incorporate this element when assessing engagement. Secondly it relies upon behaviours exhibited (due to pain) if she was in the company of others. We have already concluded that the appellant is not limited by pain on more than 50% of days. Lastly the appellant's understanding of extreme psychological distress is unaligned with the statutory test. When this matter was explored in evidence she gave as a reference point the support she receives from her mother when in the presence of other people, where in she described that her mother would be able to seek help/rescue if the appellant got into difficulties (ergo a migraine) and thus provided a form of reassurance and calm. ** V
If it is the case I need support to socialise/talk etc from my mum, then why no points?
Oh I forgot, you don't accept this happens on 50% of days.
They ignored my sobbing 42 times, this probably explains why.
I explained I cannot go out nor socialise or interact socially at all due to pain/depression/fatigue. I can't walk upright so it would be socially embarrassing as well as cause me injury to try and walk like this.
I explained I cannot socialise nor do I have any desire to go out because my condition means my life is totally different to everyone else's and this makes me feel worse. My friendships have crumbled and are non existent. People will ask what have you been doing and what can I say? They all have families and I don't which makes me feel worse. It is too upsetting and isolating for me. Also my uncontrollable sobbing should have told them I wasn't ok but clearly it didn't.
W
17. Activity 12. No points are awarded. The appellant's argument rests on limitation due to pain about which we have already drawn conclusions. She walked to the Tribunal hearing a distance of 61 m without stopping . ** W
It was not put to me that the distance I walked was 61m!
It is absolutely not 61m! It is 20/30 metres at most.
This is outrageously wrong as I told them I walked up the side road to the venue slowly and with support from my mother and I fundamentally disagree with this assertion.
X
We reject for the reasons given the appellant's assertions that she walks 3 to 5 times slower than normal (by reference to Regulation 4) due to pain. She has no other condition that would limit her ability to walk normally and pain free. ** X
It is not just pain that limits or slows my walking. I also explained to the panel I had fatigue and was slow on that day. I also have depression which I believe has an impact on both my walking and speech/thinking. If not I've no idea why they were constantly interrupting instead of letting me speak.
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4 months 3 weeks ago #292969 by MDBond
Replied by MDBond on topic Statement of Reasons after First Tier Tribunal - Advice and Tips please
Thank you Gary for the full guidance and clarification.
I have started writing my appeal and am well into it. It is going to be inordinately long as there is so much to dispute with the evidence!
I have a further question.
Is it an error of law if the tribunal has failed to investigate or inquire? They have accepted without question the discredited health assessment that has only had 2-3 descriptors reviewed and not all of the disputed ones (you can see this from the lack of notes and contradictions between conflicting reasons and conflicting points for related/connected descriptors).
They were sly in how they have accepted it though - they just said they used their discretion not to revisit the award and that the DM has accepted the HP's view on descriptor 1, 3, etc etc rather than the tribunal outright saying they accept or prefer it to my own evidence, but to me that clearly implies/infers that you don't see any problems with the DWP's evidence. My transcript and audio proves I didn't say what the HP wrote or, the HP wrote what I said and ignored it/failed to apply it to the descriptors.
Also no mention at all of regulations 4 and 7 anywhere in this partly reviewed health report, surely that is a huge mistake the panel should have picked up on?
So I have stated this in the appeal -
The tribunal have erred because they have failed in their inquisitory role to ask the DWP presiding officer why they are continuing to rely on a discredited health report. The tribunal have also ignored the evidence inherent in the discredited health report that shows only 2-3 descriptors were reviewed, and that no full review of the health report was carried out by Capita or the DWP. Only 2-3 descriptors being revised has led to there being conflicting and contradictory statements and - in the appellant's view - a still incorrect award of points for each contested descriptor. Yet not only did the tribunal fail to make enquiries as to why the DWP failed to review all of the descriptors, and why they are continuing to rely on the discredited and contradictory report as evidence, they have also relied on it themselves instead of all of the other available conflicting evidence (5 pieces) instead of stating why they prefer it over the rest.
Am I right in saying all of this? Is it an error of law to fail to ask ANYTHING at all of the DWP regarding their discredited evidence which has holes in it that I've already raised, when they asked me 300+ questions, at least one third of which were repeat questions?
Is it an error of fact to overlook existing evidence that clearly proves the health report was/still is wrong? I just want to get everything right. Thank you
I have started writing my appeal and am well into it. It is going to be inordinately long as there is so much to dispute with the evidence!
I have a further question.
Is it an error of law if the tribunal has failed to investigate or inquire? They have accepted without question the discredited health assessment that has only had 2-3 descriptors reviewed and not all of the disputed ones (you can see this from the lack of notes and contradictions between conflicting reasons and conflicting points for related/connected descriptors).
They were sly in how they have accepted it though - they just said they used their discretion not to revisit the award and that the DM has accepted the HP's view on descriptor 1, 3, etc etc rather than the tribunal outright saying they accept or prefer it to my own evidence, but to me that clearly implies/infers that you don't see any problems with the DWP's evidence. My transcript and audio proves I didn't say what the HP wrote or, the HP wrote what I said and ignored it/failed to apply it to the descriptors.
Also no mention at all of regulations 4 and 7 anywhere in this partly reviewed health report, surely that is a huge mistake the panel should have picked up on?
So I have stated this in the appeal -
The tribunal have erred because they have failed in their inquisitory role to ask the DWP presiding officer why they are continuing to rely on a discredited health report. The tribunal have also ignored the evidence inherent in the discredited health report that shows only 2-3 descriptors were reviewed, and that no full review of the health report was carried out by Capita or the DWP. Only 2-3 descriptors being revised has led to there being conflicting and contradictory statements and - in the appellant's view - a still incorrect award of points for each contested descriptor. Yet not only did the tribunal fail to make enquiries as to why the DWP failed to review all of the descriptors, and why they are continuing to rely on the discredited and contradictory report as evidence, they have also relied on it themselves instead of all of the other available conflicting evidence (5 pieces) instead of stating why they prefer it over the rest.
Am I right in saying all of this? Is it an error of law to fail to ask ANYTHING at all of the DWP regarding their discredited evidence which has holes in it that I've already raised, when they asked me 300+ questions, at least one third of which were repeat questions?
Is it an error of fact to overlook existing evidence that clearly proves the health report was/still is wrong? I just want to get everything right. Thank you
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