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Setting Precedent for an Individual at Tribunal
- Dale
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2 years 5 months ago #273024 by Dale
Setting Precedent for an Individual at Tribunal was created by Dale
Good evening,
I have reapplied for PIP and have been awarded Standard Daily Living and Enhanced Mobility right off the bat. The guide here really is something and I'm glad it's on my side (!). Now I am gearing up for MR to challenge SDL as below.
My understanding of the Tribunal appeal process is that it is the legal route to redress, but I am unsure how far it can reach. Can a Tribunal set a precedent for an individual claimant based on the facts of their condition, that is binding on future decisions/Tribunal panels?
For context, I was 5 years ago awarded Enhanced Daily Living and Standard Mobility by Tribunal decision. Long story short, my long term condition is progressively degenerative so, due to its natural decline, I am in worse shape physically today than I was 5 years ago without question. The same was true 5 years ago too. I know this is not a legal advice forum as such but I wonder, are the Tribunal's decisions binding in any way, like do they set a 'legal' precedent for an individual's claim? - If 5 years ago I was awarded x points spread in the Daily Living categories to qualify for Enhanced, by a Tribunal, and my condition does not improve, can I argue this from a 'legal' perspective or just a point of incoherent logic?
Quickfire:
- Can I request the length of award be reviewed, with a view to extending it, if I reach Enhanced and Enhanced? I will never improve and they are the highest awards so I've convinced myself that it's at least logical
- - By extension, are indefinite awards a thing or am I stuck in the DLA-era?
- What are the chances of a Tribunal making a decision in my favour 'out of hand'? - Can they be convinced in the initial appeal request that the DWP's justifications cannot stand up to scrutiny? Last time I had a face to face hearing and had to mentally prepare for weeks, so am looking for a heads up if possible.
Appreciate your time, and wish the best of health to all.
Kind regards,
Tom
I have reapplied for PIP and have been awarded Standard Daily Living and Enhanced Mobility right off the bat. The guide here really is something and I'm glad it's on my side (!). Now I am gearing up for MR to challenge SDL as below.
My understanding of the Tribunal appeal process is that it is the legal route to redress, but I am unsure how far it can reach. Can a Tribunal set a precedent for an individual claimant based on the facts of their condition, that is binding on future decisions/Tribunal panels?
For context, I was 5 years ago awarded Enhanced Daily Living and Standard Mobility by Tribunal decision. Long story short, my long term condition is progressively degenerative so, due to its natural decline, I am in worse shape physically today than I was 5 years ago without question. The same was true 5 years ago too. I know this is not a legal advice forum as such but I wonder, are the Tribunal's decisions binding in any way, like do they set a 'legal' precedent for an individual's claim? - If 5 years ago I was awarded x points spread in the Daily Living categories to qualify for Enhanced, by a Tribunal, and my condition does not improve, can I argue this from a 'legal' perspective or just a point of incoherent logic?
Quickfire:
- Can I request the length of award be reviewed, with a view to extending it, if I reach Enhanced and Enhanced? I will never improve and they are the highest awards so I've convinced myself that it's at least logical
- - By extension, are indefinite awards a thing or am I stuck in the DLA-era?
- What are the chances of a Tribunal making a decision in my favour 'out of hand'? - Can they be convinced in the initial appeal request that the DWP's justifications cannot stand up to scrutiny? Last time I had a face to face hearing and had to mentally prepare for weeks, so am looking for a heads up if possible.
Appreciate your time, and wish the best of health to all.
Kind regards,
Tom
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- Angel
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2 years 5 months ago - 2 years 5 months ago #273028 by Angel
Replied by Angel on topic Setting Precedent for an Individual at Tribunal
Morning Tom.
1. At MR stage, You can argue that you have not improved since your last award, so do not understand how they have awarded you less Daily Living points.
[Moderator's edit for clarity - it is still important to explain exactly what points you had previously, and say things haven't got better and/or have become worse. It is OK to state what the correct value of points should be. Remember also, that if you have already reached 12 points for either DL or Mobility, DWP (or a Tribunal) are not obliged to consider counting points so you may find that less or zero points were previously awarded and you might therefore wish to comment on that.]
At my last review I put down the history of my past PIP, DLA and ESA (Support Group) awards and dates.
2. If you go to Appeal, you ‘may’ lose your Enhanced Mobility Award.
[Mod says whilst this is possible it is highly unlikely. The tribunal 'need not' examine anything not part if the appeal. Make it absolutely clear that you are only appealing DL or award length. If the tribunal are minded to reduce or remove an existing award they have to give a warning allowing you to withdraw your appeal should you wish.]
3. Have a good look at the points and see what they have awarded differently this time.
4. I would focus on this before worrying about length of award. I have been claiming DLA & PIP for 12 years now, and am still reviewed. I am hoping at next renewal when I will have been receiving Enhanced Both for 10 years they will give me a longer award. My longest was my latest, at 6 years.
Good Luck.
1. At MR stage, You can argue that you have not improved since your last award, so do not understand how they have awarded you less Daily Living points.
[Moderator's edit for clarity - it is still important to explain exactly what points you had previously, and say things haven't got better and/or have become worse. It is OK to state what the correct value of points should be. Remember also, that if you have already reached 12 points for either DL or Mobility, DWP (or a Tribunal) are not obliged to consider counting points so you may find that less or zero points were previously awarded and you might therefore wish to comment on that.]
At my last review I put down the history of my past PIP, DLA and ESA (Support Group) awards and dates.
2. If you go to Appeal, you ‘may’ lose your Enhanced Mobility Award.
[Mod says whilst this is possible it is highly unlikely. The tribunal 'need not' examine anything not part if the appeal. Make it absolutely clear that you are only appealing DL or award length. If the tribunal are minded to reduce or remove an existing award they have to give a warning allowing you to withdraw your appeal should you wish.]
3. Have a good look at the points and see what they have awarded differently this time.
4. I would focus on this before worrying about length of award. I have been claiming DLA & PIP for 12 years now, and am still reviewed. I am hoping at next renewal when I will have been receiving Enhanced Both for 10 years they will give me a longer award. My longest was my latest, at 6 years.
Good Luck.
Last edit: 2 years 5 months ago by LL26. Reason: Mod review
The following user(s) said Thank You: SUE C C, Kim
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- LL26
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2 years 5 months ago - 2 years 5 months ago #273037 by LL26
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by LL26 on topic Setting Precedent for an Individual at Tribunal
Hi Dale,
There is a two tier system of Tribunals First Tier (FTT) Upper (UT). Every claimant appeals to FTT first. There is a right of appeal to UT if there has been an error of law. FTT is not binding on itself, but persuasive. UT is always binding. This means that FTT A does not have to follow the decision of FTT B, however both FTT A&B will have to follow the decision from any UT decision. For more important matters the UT will sit as a 3 Judge panel. A 3 Judge panel decision is superior to a single judge.
There are other law courts outside the Tribunal system. These can comprise administration matters. (Complaints of maladministration of DWP will be dealt with in the High Court as Judicial Review. ) JR could be a one off scenario compelling DWP to do something just for your individual claim, eg pay benefit when this hasn't been done. JR can also be used for decision affecting a group of people who require DWP to perform their duty correctly. There may also be instances where DWP has not treated certain sections of society equally, so claims can be brought in the High Court for generic discrimination. The European Court of Human Rights still oversees these sorts of cases.
Back to your own claim.... If you previously had benefit then this case is a Supersession. (Legal term for change in benefit award via a change of circumstances.) The law is very clear in respect of Supersessions- DWP can not simply argue that there has been a change if circumstances because the latest Assessment report suggests nil points!
DWP need to show an actual change if circumstances, namely you have actually got better. So, to give an example, if you had a leg deformity from birth and couldn't walk 20 to 50m to the required standard, you should score 8 points for Mobility. Some new surgical technique becomes available. You are on the waiting list. The surgery might not work. Assessor says a. awaiting surgery walking will be over 200m or
b. Observations of walking show can walk 15m no limp therefore can walk 200m
DWP conclude therefore no points. You still haven't had the surgery, and 15 m is within your actual ability.
What had changed in either scenario? Nothing.
Scenario C You have surgery and 6 mths later at your reassessment for PIP you tell the assessor you can walk your 2 labradors 2 miles a day, often twice. This IS a change of circumstances and no mobility points will be awarded.
DWP have to prove the change of circs.(This is unlike a new claim where claimant has to prove benefit shouid be awarded.) However all it means is that a Tribunal will reinstate the previous award if the Supersession is not proven. You still need to appeal and have the hearing. Theoretically DWP could admit their fault and reinstate the award, but this very rarely happens, and you would still need to lodge the appeal or at least do MR to get this initiated. There is no automatic route for this. You still need MR and possibly tribunal decision. Sometimes DWP revise at MR or pending the hearing date.
Having information about previous decisions is important. Mention these at MR, stressing no change. Mention at tribunal, and when you complete the reasons for appeal. Ask for DWP to include previous decisions and/or other recent assessments even for ESA/UC or DLA. These will all show a continuity of disability. Tribunals have been very scathing of DWP in recent UT cases where it genuinely seems that there has been no previous benefit, yet this is not true. Send in copies of your own decision notices to show what's happened. Excerpts from relevant charity websites to explain the condition being lifelong etc may also help. By sending in as much info as possible at MR and/or if you need to appeal to the tribunal you may be able to get DWP to revise without requiring to attend the hearing.
You can certainly ask for the award length to be extended. This can be the sole subject of the appeal. Here is a link to pipinfo which explains about award length further. pipinfo.net/issues/length-of-awards#:~:t...20every%2010%20years.
I hope this helps.
Good luck.
LL26
There is a two tier system of Tribunals First Tier (FTT) Upper (UT). Every claimant appeals to FTT first. There is a right of appeal to UT if there has been an error of law. FTT is not binding on itself, but persuasive. UT is always binding. This means that FTT A does not have to follow the decision of FTT B, however both FTT A&B will have to follow the decision from any UT decision. For more important matters the UT will sit as a 3 Judge panel. A 3 Judge panel decision is superior to a single judge.
There are other law courts outside the Tribunal system. These can comprise administration matters. (Complaints of maladministration of DWP will be dealt with in the High Court as Judicial Review. ) JR could be a one off scenario compelling DWP to do something just for your individual claim, eg pay benefit when this hasn't been done. JR can also be used for decision affecting a group of people who require DWP to perform their duty correctly. There may also be instances where DWP has not treated certain sections of society equally, so claims can be brought in the High Court for generic discrimination. The European Court of Human Rights still oversees these sorts of cases.
Back to your own claim.... If you previously had benefit then this case is a Supersession. (Legal term for change in benefit award via a change of circumstances.) The law is very clear in respect of Supersessions- DWP can not simply argue that there has been a change if circumstances because the latest Assessment report suggests nil points!
DWP need to show an actual change if circumstances, namely you have actually got better. So, to give an example, if you had a leg deformity from birth and couldn't walk 20 to 50m to the required standard, you should score 8 points for Mobility. Some new surgical technique becomes available. You are on the waiting list. The surgery might not work. Assessor says a. awaiting surgery walking will be over 200m or
b. Observations of walking show can walk 15m no limp therefore can walk 200m
DWP conclude therefore no points. You still haven't had the surgery, and 15 m is within your actual ability.
What had changed in either scenario? Nothing.
Scenario C You have surgery and 6 mths later at your reassessment for PIP you tell the assessor you can walk your 2 labradors 2 miles a day, often twice. This IS a change of circumstances and no mobility points will be awarded.
DWP have to prove the change of circs.(This is unlike a new claim where claimant has to prove benefit shouid be awarded.) However all it means is that a Tribunal will reinstate the previous award if the Supersession is not proven. You still need to appeal and have the hearing. Theoretically DWP could admit their fault and reinstate the award, but this very rarely happens, and you would still need to lodge the appeal or at least do MR to get this initiated. There is no automatic route for this. You still need MR and possibly tribunal decision. Sometimes DWP revise at MR or pending the hearing date.
Having information about previous decisions is important. Mention these at MR, stressing no change. Mention at tribunal, and when you complete the reasons for appeal. Ask for DWP to include previous decisions and/or other recent assessments even for ESA/UC or DLA. These will all show a continuity of disability. Tribunals have been very scathing of DWP in recent UT cases where it genuinely seems that there has been no previous benefit, yet this is not true. Send in copies of your own decision notices to show what's happened. Excerpts from relevant charity websites to explain the condition being lifelong etc may also help. By sending in as much info as possible at MR and/or if you need to appeal to the tribunal you may be able to get DWP to revise without requiring to attend the hearing.
You can certainly ask for the award length to be extended. This can be the sole subject of the appeal. Here is a link to pipinfo which explains about award length further. pipinfo.net/issues/length-of-awards#:~:t...20every%2010%20years.
I hope this helps.
Good luck.
LL26
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Last edit: 2 years 5 months ago by LL26. Reason: Omission.
The following user(s) said Thank You: SUE C C
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