appealing to a pip commissioner

Hi bobbyvokes,
If you wish to appeal a decision from the First tier Tribunal (which would have heard your initial appeal) you need to appeal to the Upper Tribunal (it is no longer an appeal to the Commissioners.)
You have done the first step which is to apply for the Written Statement of Reasons. Have you also asked for the record of proceedings - this may be a CD recording or perhaps a handwritten note made by the judge during the hearing.
It usually takes several weeks for the WSOR to arrive - if the ROP is a CD that can come quite quickly. Normally you get an acknowledgment that a request for the WSOR has been made.

Once the WSOR has arrived you have a month to appeal. (A late appeal can be made but you would have to show good cause why you are late, the very latest appeal will be 13mths after the date when the WSOR was issued.)

In order to appeal to the Upper Tribunal you will need to show that there has been an arguable error of law. (There is no automatic right of appeal.) There are various things that could be errors of law, which I will explain in a moment. The error/s of law need to be material, that means that there is a likelihood that if the correct law or procedure was followed it would give rise to sufficient points to allow you to receive benefit. Since you received zero points you would need to show eg that under daily living the error/s of law amounted to at least 8 points and hence you could gain an award. If any error only amounted to 2 points that wouldn't be enough so you would not be allowed to appeal.
There are 3 sorts of errors that could be appealed. There may be more than one, and you might get errors of all kinds.
Procedure
Evidence
Law

Procedure
Administrative problems, appearance (whether intended or not) of bias, not giving enough attention to the hearing eg watching the clock etc Wrong paperwork, tribunal don't have the appeal papers (or you don't!)

Evidence
Has the tribunal explained the evidence it relies on and how that affects the descriptor points (or lack of)?
Listen to the CD recording/check the handwritten ROP - what actually was the evidence?
For example 'I'm too tired to cook 5 times per week.' is what the CD clearly shows as what you have said. But the tribunal mishear - and think you said ' I try to cook 5 times per week.' Big difference!
Has the tribunal ignored crucial evidence -eg you said you can't take strong meds because... but they simply say 'doesn't take strong meds, hence unlikely to have problems with pain...'
Has the tribunal fully explained any difference in the evidence - or shown that it has fully weighed all evidence and not just 'accepted the assessment report' and not mentioned the 39 pages of consultant's letters you sent in. Why does it 'prefer' the assessment, why has it discounted your medical evidence - full explanations are required so you understand.
Maybe the tribunal misunderstood or misheard a crucial part of the evidence which now makes it appear that you have changed your story or level of disability. This might rubbish your credibility on everything. (ie he changed his mind on X, so now we don't believe him about Y and Z; actually we don't think we believe him at all!)If this is the case, then the tribunal can't just say we don't believe him, it has to explain properly as to why.
Lack of explanation, relying on incorrect or untested evidence, making assumptions etc could all be errors of law.

Law
The tribunal has to follow the correct law. Has it applied the correct descriptor tests? eg descriptor 1 requires preparing and cooking a simple meal for one from fresh ingredients. If the tribunal say 'he can make beans on toast' this is not from fresh ingredients and hence is the wrong test. All elements of the law must be applied.
In addition, the tribunal often get confused about reg 4(2A) and reg 7 (PIP REGS. 2013)
4(2A) - requires 4 criteria to be met (all 4) - safety, reasonable time, repetition and acceptable standard. Check that the tribunal has considered and fully explained how you have fulfilled these criteria. So, if you say you are prone to falling in the bathroom, and have been to hospital twice as a result - this indicates that you might reasonably require help to get in/out. If the tribunal ignored the falls it is unlikely it could demonstrate that you weren't at risk of substantial harm.
Reg 7 provides that the tribunal need to consider the majority of days NOT time. If you fail to repeat an activity (except for a very trivial time) across the whole day as many times as is reasonably required for the activity then that 'failure day' is one to count for the majority, this is particularly relevant for varying conditions.
Finally consider the burden of proof and standard of proof.
If this is a new claim YOU have to prove you have sufficient disability to show you can't complete PIP tasks and hence score points. You need to show this on the balance of probabilities (not beyond reasonable doubt).
If this is a renewal, then DWP have to show that there is a real change of circumstance ie you have actually got better, and it's not just because of a poor assessment process. The standard of proof remains the same.

Check the members guides for the correct law for each descriptor and see what went wrong.

So... has the tribunal failed to be fair, has it ignored or misunderstood clear evidence, or become confused? Has it explained it reasoning properly, weighing all the evidence? Has it applied the correct legal tests and procedure? If the tribunal has failed to do some or all of these things, then it is likely one or more errors of law has occurred.
If you take the error/s altogether would the total of 'correct' points be sufficient points to create an award? If so, then you may well be able to succeed.

Write in to the First Tier Tribunal and head your letter ' Request to set aside First tier Tribunal decision and/or request for leave to appeal to the Upper Tribunal' give your name/NI Number/Case reference and the hearing date in the heading.

Clearly explain the errors of law. I find it easier to deal with one at a time, (although one error might comprise part of a further error, so there might be some cross over.) So, for example
Ground 1 - the First Tier Tribunal failed to apply the correct legal test for Daily Living Descriptor 1 - this is an error of law
[Explain that the tribunal said that 'heating up a can of beans amounted to 'preparing and cooking food' - explain what the correct definition is. The explain that on the claim form at page X you clearly stated that you never cooked because... and that most days you didn't even cook beans, your Mother came round and brought a meal with her etc - the tribunal scored zero - and you should have been awarded - Y points.]
Ground 2 - the First Tier Tribunal failed to apply the correct standard of proof - this is an error of law
[Explain that the First tier Tribunal persistently referred to 'the claimant not having satisfied the descriptor test beyond all possible doubt' - this is the wrong test - the correct only requires myself to prove to the 'balance of probabilities' ie 51%. It is hard to see how the tribunal do not consider that 39 detailed pages of medical notes from the consultants and physiotherapists con not comprise the 'balance of probabilities' especially when the assessment only lasted 17 minutes, and is full of glaring inaccuracies such as.... which were pointed out both in the hearing and within the appeal papers....'

You can then close saying eg
There are various/crucial etc errors of law made by the First Tier Tribunal. As a result the decision should be set aside and/or leave granted to appeal to the Upper Tribunal.

There is a 2 stage process - the Regional Judge will consider the set aside request - if he agrees there is an arguable material error of law he can set aside and he will organise a new hearing with different tribunal members. If there is an important area of law, or the RJudge can not resolve the problem he can send the case to the Upper tribunal. If the RJudge does not accept there is the relevant error of law, then you can appeal direct to the Upper Tribunal and the case will then get reviewed and accepted as appropriate. The UT can make their own decision if they have enough information, or can also send back for a another hearing at FTT.
It does take a while to do this, but if the First Tier tribunal did make errors of law then it is entirely possible that a fresh hearing can give sufficient points to gain an award. Your award will back date to the claim date or last payment/review date for a renewal.

I hope this helps.

Good luck
LL26