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- PIP: Help with math and definitions; Mobility activities 1. (2 questions)
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PIP: Help with math and definitions; Mobility activities 1. (2 questions)
- Tony
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1 year 7 months ago #280282 by Tony
PIP: Help with math and definitions; Mobility activities 1. (2 questions) was created by Tony
The reason for the award given at the Appeal was initially
Mobility activities 1. Planning and following journeys.
The Tribunal found, that on the balance of probabilities the claimant
b. Needs prompting to be able to undertake any journey to avoid overwhelming psychological distress to the claimant. (4 points.)
And that the claimant
e. Cannot undertake any journey because it would cause overwhelming psychological distress to the claimant. (10 points.)
(1) Thus 10 points were awarded as only the descriptor of highest value is counted. Is this correct?
(I find applying ‘b.’ and ‘e.’ somewhat nonsensical – as they are a contradiction – which might also explain why in the ‘Statement of Reasons’ d. was substituted without explanation for ‘e.’; being…
d. Cannot follow the route of an unfamiliar journey without another person, assistance dog or orientation aid. 10 points. )
And in the request for an Appeal (that went to the Judge that sat on the Appeal – which was rejected) the reason for why “f. Cannot follow the route of a familiar journey without another person, an assistance dog or an orientation aid. 12 points” was not found to apply, though that is was was described, the Judge opined that the last time the claimant undertook a journey unaccompanied, which was ‘more than a year before' the date of the claim, the example given being a journey of 400m, suffering a severe panic attack half way through, and being unable to undertake any journey unaccompanied since, meant f. did not apply – as a journey had been undertaken in the relatively recent past.
(2) Is that a correct application of the law?
(PS it transpired after, though I didn’t realise at the time of the hearing, that I’d had had an acrimonious argument with a panel member on Facebook some five years previously.)
Mobility activities 1. Planning and following journeys.
The Tribunal found, that on the balance of probabilities the claimant
b. Needs prompting to be able to undertake any journey to avoid overwhelming psychological distress to the claimant. (4 points.)
And that the claimant
e. Cannot undertake any journey because it would cause overwhelming psychological distress to the claimant. (10 points.)
(1) Thus 10 points were awarded as only the descriptor of highest value is counted. Is this correct?
(I find applying ‘b.’ and ‘e.’ somewhat nonsensical – as they are a contradiction – which might also explain why in the ‘Statement of Reasons’ d. was substituted without explanation for ‘e.’; being…
d. Cannot follow the route of an unfamiliar journey without another person, assistance dog or orientation aid. 10 points. )
And in the request for an Appeal (that went to the Judge that sat on the Appeal – which was rejected) the reason for why “f. Cannot follow the route of a familiar journey without another person, an assistance dog or an orientation aid. 12 points” was not found to apply, though that is was was described, the Judge opined that the last time the claimant undertook a journey unaccompanied, which was ‘more than a year before' the date of the claim, the example given being a journey of 400m, suffering a severe panic attack half way through, and being unable to undertake any journey unaccompanied since, meant f. did not apply – as a journey had been undertaken in the relatively recent past.
(2) Is that a correct application of the law?
(PS it transpired after, though I didn’t realise at the time of the hearing, that I’d had had an acrimonious argument with a panel member on Facebook some five years previously.)
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- LL26
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1 year 7 months ago #280288 by LL26
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by LL26 on topic PIP: Help with math and definitions; Mobility activities 1. (2 questions)
Hi Tony,
I'm not entirely sure I understand about what has happened here. If I am correct the first tier tribunal found both 1b and 1e applied, awarded 1e but then then statement of reasons said 1d applied?
I don't think it is lawful for a tribunal to change its decision and swap another descriptor unless it is a typo type mistake where the tribunal clearly refers to a certain descriptor but then awards the wronglh labelled descriptor on the decision notice. In any other case the initial decision would need to be set aside.
However an Upper Tribunal Judge has the power to substitute his own decision in order to correct the errors of law in the first tier tribunal. Is this what has happened?
However I'm concerned about the practicalities here.- yes to answer your original question- when two or more descriptors from the same set all apply then the highest value one should be awarded where all of the potential descriptors apply equally. If there is an imbalance then the most prevalent descriptor should be awarded. Without knowing the entire history of your disability and how this affects you, I can't say which descriptor is actually correct That said 1d and 1e carry the same points score so it doesn't really matter which is awarded.
Prompting- this means encouragement, reassurance etc that it is ok to go out somewhere, the prompting is enough to allay your anxiety to be less than overwhelming.
1d - if you can manage to do familiar journeys, but get anxious or stressed en route somewhere unknown or get lost all the time and this might make you upset or put you in danger, then you can argue you need to be accompanied on a unfamiliar journey.
Similarly 1f applies if you can't do familiar or unfamiliar journeys without someone. (Orientation aid is a specific item for blind or deaf people.)
You don't need to be overwhelmed by your distress ( namely severe anxiety, panic attacks, etc) to be awarded 1F or 1d.
1e requires that you gave overwhelming psychological distress which effectively prevents you making any journeys. Basically you get so worked up that you panic, can't breathe, shake or maybe can't physically move etc and this prevents you going out somewhere.
'Any journey' doesn't mean all journeys. It means that you can't go out to somewhere fir the majority of days. A journey could be a 2 minute walk to the post box or a 300 mile trip to visit a relative and anything in between.
A one off journey to the GP or hospital is not going to comprise the majority of days.
1F carries more points as the rationale is that it is more difficult and perhaps more costly to go somewhere needing a friend with you. (Certainly this is true in public transport.)
As for the dispute with the panel member, thus could indicate a perception of bias, or there might be real bias, which could be argued as an error of law. I think it would depend on the nature if the dispute, and whether your Facebook account is in your name. You would need to be very careful if you were arguing this point.
As I'm not entirely sure what stage your claim is at, if you were rejected for appeal or seaside by the District Judge, having made a request to set aside the first tier tribunal decision, you can still apply directly to the Upper Tribunal. You need to be sure that there is an error of law and more to the point that the error is a material one, namely that it would actually increase your award, or provide one where previously you had nothing.
Mobility Descriptor 1 is complicated, if this is the only descriptor you wish to argue, you would need to be sure that you can fit within 1F to gain the extra points, otherwise you won't gain anything at all.
I hope this helps.
LL26
I'm not entirely sure I understand about what has happened here. If I am correct the first tier tribunal found both 1b and 1e applied, awarded 1e but then then statement of reasons said 1d applied?
I don't think it is lawful for a tribunal to change its decision and swap another descriptor unless it is a typo type mistake where the tribunal clearly refers to a certain descriptor but then awards the wronglh labelled descriptor on the decision notice. In any other case the initial decision would need to be set aside.
However an Upper Tribunal Judge has the power to substitute his own decision in order to correct the errors of law in the first tier tribunal. Is this what has happened?
However I'm concerned about the practicalities here.- yes to answer your original question- when two or more descriptors from the same set all apply then the highest value one should be awarded where all of the potential descriptors apply equally. If there is an imbalance then the most prevalent descriptor should be awarded. Without knowing the entire history of your disability and how this affects you, I can't say which descriptor is actually correct That said 1d and 1e carry the same points score so it doesn't really matter which is awarded.
Prompting- this means encouragement, reassurance etc that it is ok to go out somewhere, the prompting is enough to allay your anxiety to be less than overwhelming.
1d - if you can manage to do familiar journeys, but get anxious or stressed en route somewhere unknown or get lost all the time and this might make you upset or put you in danger, then you can argue you need to be accompanied on a unfamiliar journey.
Similarly 1f applies if you can't do familiar or unfamiliar journeys without someone. (Orientation aid is a specific item for blind or deaf people.)
You don't need to be overwhelmed by your distress ( namely severe anxiety, panic attacks, etc) to be awarded 1F or 1d.
1e requires that you gave overwhelming psychological distress which effectively prevents you making any journeys. Basically you get so worked up that you panic, can't breathe, shake or maybe can't physically move etc and this prevents you going out somewhere.
'Any journey' doesn't mean all journeys. It means that you can't go out to somewhere fir the majority of days. A journey could be a 2 minute walk to the post box or a 300 mile trip to visit a relative and anything in between.
A one off journey to the GP or hospital is not going to comprise the majority of days.
1F carries more points as the rationale is that it is more difficult and perhaps more costly to go somewhere needing a friend with you. (Certainly this is true in public transport.)
As for the dispute with the panel member, thus could indicate a perception of bias, or there might be real bias, which could be argued as an error of law. I think it would depend on the nature if the dispute, and whether your Facebook account is in your name. You would need to be very careful if you were arguing this point.
As I'm not entirely sure what stage your claim is at, if you were rejected for appeal or seaside by the District Judge, having made a request to set aside the first tier tribunal decision, you can still apply directly to the Upper Tribunal. You need to be sure that there is an error of law and more to the point that the error is a material one, namely that it would actually increase your award, or provide one where previously you had nothing.
Mobility Descriptor 1 is complicated, if this is the only descriptor you wish to argue, you would need to be sure that you can fit within 1F to gain the extra points, otherwise you won't gain anything at all.
I hope this helps.
LL26
Nothing on this board constitutes legal advice - always consult a professional about specific problems
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- Gordon
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1 year 7 months ago #280291 by Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gordon on topic PIP: Help with math and definitions; Mobility activities 1. (2 questions)
Tony
Just to clarify.
Descriptors (1d) and (1e) are held to be mutually exclusive from (1e) by a three-Judge UTT panel.
Basically, if you can leave the house then you cannot meet the criteria for 1e and conversely by definition, if you cannot leave the house then you your ability to follow a route cannot be considered.
So, it is really important that you resolve this matter by contacting the Tribunal Service, such a Decision invites the DWP to lodge their UTT appeal.
Gordon
Just to clarify.
Descriptors (1d) and (1e) are held to be mutually exclusive from (1e) by a three-Judge UTT panel.
Basically, if you can leave the house then you cannot meet the criteria for 1e and conversely by definition, if you cannot leave the house then you your ability to follow a route cannot be considered.
So, it is really important that you resolve this matter by contacting the Tribunal Service, such a Decision invites the DWP to lodge their UTT appeal.
Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
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