PiP

Hi Month87

You can only appeal to the Upper Tribunal on Points of Law. If the DWP disagree with the decision made by your Tribunal then they can also appeal to the Upper Tribunal.

The same process applies to the DWP as it does to you, they will have to apply for a Statement of Reason within one month of the decision, if they do then a copy will be sent to you.

If you’re appealing because your benefit was refused or stopped, you might be able to start a new claim while you’re waiting for your appeal decision.

You can do this if:

* your circumstances have changed - for example, your income has reduced
* you claimed a disability benefit and your condition has got worse or you’ve developed a new one

It’s worth making a new claim if the changes mean you’re now likely to be accepted for the benefit.

Your appeal will still continue. If it’s successful, any payments you’re owed will cover from the date your original claim was made, to the date of your new claim.

If the appeal is for a benefit you were getting that was stopped, the payment will cover from the date the benefit was stopped to the date of your new claim.

If your appeal is successful but your new claim is refused, you’ll only get a benefit payment up to the day before your new claim.

You can ask for a mandatory reconsideration of your new claim and appeal it if necessary.

Gary

Hi Month87,
Written Statement of Reasons (WSOR) normally takes several months, so don't worry if you haven't heard anything for a while. You can always phone DWP for an update.
In order to appeal to Upper Tribunal (UT) you need to have a copy of the WSOR. Appeal to UT requires an error of law. It is not enough to just complain that the first tier tribunal didn't make the correct decision.
Look at the WSOR and check that the correct law has been applied For example common errors are made when considering how descriptor activities are done for the majority of time. The correct test is majority of days. Other common errors are saying that because you can cook frozen chips and reheat lasagne you can cook do no points under descriptor 1 - again the correct test is the ability to cook and prepare a simple meal from fresh ingredients- not simply taking food out of the freezer and putting it in the oven! Have a look at each test using the members guides. Compare to the test used by the tribunal.
Other errors of law could be ignoring vital evidence. Eg you clearly said you need help to manage medication and the tribunal saying you don't need help. (Get a copy of the cd recording and check the evidence actually said, there is often a lot of discrepancies between evidence given and alleged evidence in the WSOR. Sometimes the tribunal fails to consider a descriptor, even though there is evidence to suggest points might be scored.
There could be other things like failure to allow you or your friend to give evidence, stopping you after 5 minutes because time's up. This could suggest that there hasn't been a fair hearing allowing you to fully put your case.
Apparent or actual bias could also indicate a lack of fair hearing.
Fairness is enshrined in your right to a fair trial per Article 6 ECHR and there is an "overriding objective of fairness" under the Tribunal Rules.

Occasionally tribunals clearly mention they accept points for a certain level but mistakenly award fewer points.

Aspects of activities such as safety, repetition etc must be considered; a failure to consider these concepts will also likely to be an error of law.
Everything must be sufficiently explained if it isn't this could also be an error of law.

These are just a few examples of 'errors of law' - you only need to find one error of law that is arguble. HOWEVER it also has to be material.

So, for example due to an error of law you were given 2 points under descriptor 1 but it should have been 4. Hence your score us 2 more than before. If you were correctly awarded 4 points on other descriptors gaining the extra 2 is not going to be sufficient to gain any award. In this example you would have to find an error of law that gives 4 points +.

If you can find at least one arguable material error of law, then you have a month from date when WSOR was sent out to submit this to the tribunal. A late submission can be done, but you woukd have to argue good cause. This will be more difficult the longer the delay. Ultimate time is 13 months from the date of the letter containing the WSOR.
Write your arguments as succinctly as you can, and explain the error and why it is material. There is no set format. However you need to write in asking for the First Tier tribunal decision 'to be set side and or for leave to be given to appeal to the Upper Tribunal. '

There is a 2 stage process. Initially the Regional Judge wil consider the request. He can agree that there is a material error of law and hence agree to set aside the decision and will organise a new hearing. Imagine a full game of football is played, and the score is 3 -0. There is something terribly wrong with the way the game was referreed and it is decided that the game needs to replayed. The score starts back at 0-0. New referees. This is how the set aside works. New hearing different tribunal members start again.

Sometimes the Regional judge thinks there is an arguable error of law, but it's a complicated point, ir perhaps something that has national importance, then he will allow the set aside but refer to UT for the appeal to be decided.

Maybe the RJ thinks no errors were made. He will then refuse to set aside. In this instance you can make a direct appeal to the UT .

At UT, again the case is normally Initially considered by the duty judge and then if there is an arguable material error of law the case will go before the UT for final decision.

You can reapply for PIP, but this will mean you are only going to get PIP paid as of the date of this new claim. If your UT appeal or set aside is successful you will get paid as of date of old claim. This can amount to several thousand pounds of PIP and possibly more if PIP gives rise to the possibility of added money (premiums) on preexisting benefits such as ESA or other legacy benefits.
I often find that when claimants reapply this often leads to another refusal, particularly if exactly the same information is written in the new claim form as the old one.

Maybe consider the WSOR and see if you can find a relevant error of law. If so you can argue this and continue with the original claim. If not then just reapply and forget the appeal. You can withdraw any appeal at any time up to the hearing.

The downside with all appeals is delay. It could take several months to sort. However if you have a strong appeal then you are likely to succeed and will get back pay so it is worth the wait if you can.

It is possible to appel and reapply. In my view this always leads to complications as the first claim has to end as soon as you make the second claim. DWP get very confused. (At least they always have when clients have insisted on making a new claim!)

Good luck!
I hope this helps.

LL26