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Possible PIP Appeal - Aids when dressing

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5 years 10 months ago #212531 by Squirelly666
Possible PIP Appeal - Aids when dressing was created by Squirelly666
Hi,

Recently I've been going through my PIP renewal process and, after a mandatory reconsideration, I've been awarded 6 points for daily living, and 8 points for mobility.

The 6 points for daily living are for having to use aids for cooking, bathing and toilet needs (grab rails, stools etc.), all of which were awarded on the medical report. When I submitted my mandatory reconsideration request, I put forward that the DM should have also awarded me 2 points for using an aid to dress/undress, as I have to sit down on the bed/chair to be able to dress/undress without assistance, and the medical report also reflects this statement. To this end I cited the upper tribunal decision [CPIP/2168/2015] were a tribunal decided, in a case very similar to my own, that the use of a bed/chair should be considered the use of an aid.

In their mandatory reconsideration notice, the decision maker has cited a more recent upper tribunal case [CPIP/3369/2015] to counter my claim, as in that case the upper tribunal decided that :

"both standing up and sitting down are normal ways of performing the activity of dressing, or undressing, and therefore if the claimant has to sit down, the fact that they are sitting down does not mean they are not performing the activity to an acceptable standard. The chair or bed required by the claimant to sit should not be classed as an aid in this respect."

So, after reading both sets of upper tribunal decisions, to me it seems we have contradictory decisions. The more recent case references the old one, and then overrules it (I think, my legalese is a little rusty).

So I have a few questions :

1. Am I done? Is this basically a case of legal precedent, and while CPIP2168 was once precedent for this descriptor, now a more recent decision has been made, is that new case precedent?

2. Is the fact that I can ONLY dress/undress by sitting down a factor? In the more recent decision they state "as needing to sit does not show an impaired function for carrying out the activity of dressing or undressing, but only for one manner of carrying out the activity". If that is the only manner I can use to undertake that activity, as I can't dress while standing, doesn't that mean that the original case applies to me?

3. If I do appeal, will I continue to get the mobility component while I wait for appeal? (my last appeal took 6 months to get a court date) or will they stop all my award, until a tribunal is held?

4. And if they do continue paying the mobility while I wait for appeal, and then they find the tribunal overturns the mobility decision (rare I know, but possible) as well, will I need to repay these mobility payments?

I'm at the point now where I'm not sure how to proceed. My initial instinct was to appeal, based on the case I had already referenced, but now they've thrown another case back at me, I'm a little confused, so any advice would be appreciated.

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5 years 10 months ago #212578 by Gordon
Replied by Gordon on topic Possible PIP Appeal - Aids when dressing
Squirelly

1. No you are not done, you can make your arguments at an appeal. Case Law cannot be ignored but is only binding on the panel if it is the result of a three Judge panel which this Decision is not, the panel will have to explain why they are ignoring the Decision if they actually do so and it is likely the DWP will ask them to do this if they find in your favour (see below).

2. For an everyday item to be treated as an aid there must be a demonstrable a connection to the activity. You say that you can only dress when sitting down but this is not in itself unusual and this is the problem. You would have a stronger argument if you could show that you need a specifically designed aid to help you with your dressing, for example one that helps you put on you socks.

However, if you can reasonably show that the only way you can dress or undress is by sitting down then a chair (as an example) could be considered as an aid even in the context of CPIP/3369/2015.

3. Yes

4. If the appeal panel feel that your Mobility award is insecure then the Judge must warn you of this and give you an opportunity to withdraw your appeal.

Gordon

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5 years 10 months ago #212595 by Squirelly666
Replied by Squirelly666 on topic Possible PIP Appeal - Aids when dressing
Thanks for the info Gordon.

I'm on the fence on whether to take this to tribunal or not. It's only 18 months since my last tribunal, which took 8 months to get to, and as they only gave me a 3 year award, and with the backdate of getting to tribunal, I'm back at renewal already.

This new award is only for 2 years, backdated to start of this year, so it will be up for review around Feb next year either way, and I'm not sure I can cope with 3 tribunal hearings (as they always seem to make me go to one) in as many years.

If the whole thing takes as long as last time, I'll probably be handed a renewal letter the second I walk out of the tribunal hearing.

I suppose I could always do a written hearing, as I believe they are a little quicker, and see how that goes.

Not sure what to do, got a lot to think about.

Again, thanks for the info.

Bob
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5 years 10 months ago #212713 by Squirelly666
Replied by Squirelly666 on topic Possible PIP Appeal - Aids when dressing
Just a quick update, in case anyone's in a similar situation and could find the info useful.

Decided to go for the appeal. Asked for a written one, as I don't think I can face a court date at the moment.

Anyway read both upper tribunal decisions (a lot!) and think they both do affect me, and for the same reason, that being that I need to sit to dress, I don't choose too.

Looking at my medical report I also noticed that the medical examiner did note this, under the activity 6 justification section she wrote :

He has adequate hip flexion and rotation bilaterally. However his spinal flexion was reduced suggesting he would need to sit to complete this activity.


I pointed out this, in my appeal submission, and also the relevant sections from CPIP21682015 :

14. So too with dressing and undressing, the question is not whether other people might choose to use a chair or a bed to assist when dressing or undressing, but whether a claimant is unable to dress or undress without using them or some other qualifying aid or appliance.


and CPIP33692015 :

33. In summary, entitlement to a personal independence payment depends on the claimant having a condition that limits their ability to carry out particular activities. The need to use an aid is a measure of the extent of that limitation. Whether something is an aid depends on whether it assists in overcoming the consequences of a function being impaired in the carrying out of that activity. That function must be one that is required in order to carry out the particular aspect of an activity, not merely one of a range of functions that could be employed.


as I believe they show that I need to sit whilst dressing, and that, as that is a "need" rather than a "choice", then I should be considered needing an aid to dress or undress.

Hopefully the DM will notice this when they look at the appeal papers, and do a 2nd MR (I believe they've started doing this now?), and if not the appeal can see this purely on the papers.

Will keep the thread updated when I hear anything.
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5 years 8 months ago #214418 by Squirelly666
Replied by Squirelly666 on topic Possible PIP Appeal - Aids when dressing
Just a quick update.

It was 6 weeks (on Thursday 5/7) since The Tribunal Service acknowledged receipt of my appeal, but I've heard nothing, from anyone, not even the DWP response, since. On 6/7 I telephoned TTS to see if they'd received anything (just in case my copy got lost in the post or something), and they confirmed they haven't received anything either, and that means the DWP had missed the 28 day (+1 week for posting) deadline for their response.

However they will now be sent a reminder and given another 2 weeks to respond, and if they did not respond then, I would be notified and it would be noted on the papers to the tribunal.

Has anyone got any experience of delays, or non responses from the DWP, to an appeal submission? I've been through a few of these over the last few years, and never had them do this before. In fact, once I've reached the tribunal stage in the past, it seems to make them pull their socks up and actually take notice. Is it a sign that maybe they're doing a second recon? or is it more likely it's just slipped through the cracks?

Thanks, Bob

p.s. I didn't, but really wish I had asked the tribunal person I spoke to, if I would have been given another 2 weeks, had I missed the deadline for submitting. I bet I wouldn't, but (not) surprisingly the DWP seem to be able to take their own sweet time sorting these things out!

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5 years 8 months ago #214450 by Gordon
Replied by Gordon on topic Possible PIP Appeal - Aids when dressing
Squirelly

We see these delays happening in previous years, usually during the summer months, so it is likely a resourcing issue, we haven't seen a case where the DWP have failed to reply at all.

Gordon

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