PIP catch 22

MoneyAdvice

rockingbilly wrote: »

All of my evidence came from the NHS.
They weren't interested in the diagnosis more a question of the Tribunal testing the results and conclusion that was given.
I was diagnosed as having a mental health condition - there was no doubt in that. What they sought was to test me against the conclusions reached by the Consultant - taken from the report - "presents a history of psychological problems, historical alcohol dependency and vascular risk factors, The results of the neuropsychological assessment is that Mr**** prominent feature is his performance of slow processing speed. He is also finding it difficult with executive functioning - namely initiating, sequencing cognitive flexibility on both verbal and non verbal tasks".
That is just a few lines taken from a 4 page report.

The Tribunal in their findings said that none of the above difficulties existed when seen by the panel and therefore they could not rely on the accuracy of the professional diagnosis, prognosis or findings. The panel also found that I was able to answer difficult and searching questions with no apparent difficulty. In view of those finding I conclude that what Mr **** claimed may not be true and that in doing so his credibility as a witness was deemed lacking.

I retrieved the following from public records. I strongly advise you to appeal to an upper tribunal as it doesn't seem that the first-tier tribunal assessed your case properly and dismissed your evidence so willingly.

UK/202/2015: Tribunal must resolve conflict in evidence HCP report revised following desk-based assessment by a second HCP
Upper Tribunal Judge: Wikeley

The appellant has a number of conditions, including bi-polar disorder, hypermobility syndrome and low back and hip pain.

She made a claim PIP which was refused by the Secretary of State who decided that she scored just 3 points for daily living and 0 points for mobility. That decision was confirmed by a First-Tier Tribunal (FTT) which dismissed her appeal.

The FTT’s statement of reasons made clear that it did not accept that the Appellant was as disabled as she claimed to be.

In considering this case, Upper Tribunal Judge Wikeley agrees that credibility is a matter for the FTT. However, he stresses that there have to be adequate reasons.

Judge Wikeley comments on two problems with the FTT’s statement of reasons:

“First, it is simply inaccurate as a matter of fact. It refers to the medical evidence as including the output of “2 medical examinations”, by which presumably the FTT meant the reports from two medical examinations on behalf of the DWP, e.g. by ATOS.

I have looked through the appeal file but can only find the report of one such medical examination, being that conducted by Mrs McCaffrey. I can see no report of any second examination.

Second, it is wrong in a more fundamental way. Mrs McCaffrey’s report, if accepted on its own terms, would have resulted in a total of 9 points for daily living activities 1b, 3b, 4b, 5b and 10b. That would be enough to qualify for the standard rate of the daily living component of PIP.

However, there was then a “supplementary advice note” by a Ms Pendrill of ATOS, also a nurse. She says “thank you for your query” (that query itself does not appear to be on file). She completed a new form and changed the previous advice, changing descriptors 1b, 4b and 5b to 1a, 4a and 5a, each of which scored 0 points. There is no suggestion Ms Pendrill interviewed the Appellant, let alone examined her. She did, however, spend 30 minutes “consideration/writing up time”.

So Mrs McCaffrey who saw the Appellant in a face-to-face assessment (consideration/writing up time 120 minutes) would have scored the Appellant at 9 points. Ms Pendrill, who did not see her, would have scored her at 3 points.”

In upholding the appeal and remitting it for rehearing, Judge Wikeley says:

“None of this is obvious from the FTT’s statement of reasons. Anyone who read that statement of reasons would assume that Mrs McCaffrey’s report did not support any award of PIP. The outstanding disagreements over the first report do not seem to be resolved, insofar as they may have been relevant. So the FTT’s decision would appear to be flawed as regards adequacy of reasons.”

He continues:

“The Tribunal simply failed to engage with that disagreement between the two HCPs. Given that Mrs McCaffrey’s report would have resulted in the award of 9 points, the Tribunal needed to recognise that conflict and explain why it was departing from that assessment. It could not simply brush it aside. Its failure to recognise and satisfactorily resolve that conflict on the Secretary of State’s own evidence amounted to an error of law by the Tribunal.”

rockingbilly

MoneyAdvice wrote: »

I retrieved the following from public records. I strongly advise you to appeal to an upper tribunal as it doesn't seem that the first-tier tribunal assessed your case properly and dismissed your evidence so willingly.

UK/202/2015: Tribunal must resolve conflict in evidence HCP report revised following desk-based assessment by a second HCP
Upper Tribunal Judge: Wikeley

The appellant has a number of conditions, including bi-polar disorder, hypermobility syndrome and low back and hip pain.

She made a claim PIP which was refused by the Secretary of State who decided that she scored just 3 points for daily living and 0 points for mobility. That decision was confirmed by a First-Tier Tribunal (FTT) which dismissed her appeal.

The FTT’s statement of reasons made clear that it did not accept that the Appellant was as disabled as she claimed to be.

In considering this case, Upper Tribunal Judge Wikeley agrees that credibility is a matter for the FTT. However, he stresses that there have to be adequate reasons.

Judge Wikeley comments on two problems with the FTT’s statement of reasons:

“First, it is simply inaccurate as a matter of fact. It refers to the medical evidence as including the output of “2 medical examinations”, by which presumably the FTT meant the reports from two medical examinations on behalf of the DWP, e.g. by ATOS.

I have looked through the appeal file but can only find the report of one such medical examination, being that conducted by Mrs McCaffrey. I can see no report of any second examination.

Second, it is wrong in a more fundamental way. Mrs McCaffrey’s report, if accepted on its own terms, would have resulted in a total of 9 points for daily living activities 1b, 3b, 4b, 5b and 10b. That would be enough to qualify for the standard rate of the daily living component of PIP.

However, there was then a “supplementary advice note” by a Ms Pendrill of ATOS, also a nurse. She says “thank you for your query” (that query itself does not appear to be on file). She completed a new form and changed the previous advice, changing descriptors 1b, 4b and 5b to 1a, 4a and 5a, each of which scored 0 points. There is no suggestion Ms Pendrill interviewed the Appellant, let alone examined her. She did, however, spend 30 minutes “consideration/writing up time”.

So Mrs McCaffrey who saw the Appellant in a face-to-face assessment (consideration/writing up time 120 minutes) would have scored the Appellant at 9 points. Ms Pendrill, who did not see her, would have scored her at 3 points.”

In upholding the appeal and remitting it for rehearing, Judge Wikeley says:

“None of this is obvious from the FTT’s statement of reasons. Anyone who read that statement of reasons would assume that Mrs McCaffrey’s report did not support any award of PIP. The outstanding disagreements over the first report do not seem to be resolved, insofar as they may have been relevant. So the FTT’s decision would appear to be flawed as regards adequacy of reasons.”

He continues:

“The Tribunal simply failed to engage with that disagreement between the two HCPs. Given that Mrs McCaffrey’s report would have resulted in the award of 9 points, the Tribunal needed to recognise that conflict and explain why it was departing from that assessment. It could not simply brush it aside. Its failure to recognise and satisfactorily resolve that conflict on the Secretary of State’s own evidence amounted to an error of law by the Tribunal.”

That's very interesting and broadly similar to my own claim.
It would appear that you are right, but don't you have to apply for that within one month? If so I am well out of date now.
Besides which who would pay for the support, legal guidance etc that I would need to take the case to the Upper Court?

MoneyAdvice

rockingbilly wrote: »

That's very interesting and broadly similar to my own claim.
It would appear that you are right, but don't you have to apply for that within one month? If so I am well out of date now.
Besides which who would pay for the support, legal guidance etc that I would need to take the case to the Upper Court?

I don't know anything about how the process of appealing to an upper-tribunal works, but what I am confident about is if a FTT disregards evidence on the grounds that 'you appear fine', then that's an error in law and you can appeal that decision. I guess you just need to write a statement as to why you think there was an error in law.

NeilCr

In general you get a month to go to the Upper Tribunal

From what RockingBilly has said his decision was rather longer ago than that

hello007007

How does the upper tribunal work? Is it just like another tribunal? So you can have up to two attemps at the tribunal thing?

NeilCr

hello007007 wrote: »

How does the upper tribunal work? Is it just like another tribunal? So you can have up to two attemps at the tribunal thing?

A bit about it here

https://www.citizensadvice.org.uk/benefits/sick-or-disabled-people-and-carers/pip/appeals/your-hearing/

You can only go to an Upper Tribunal if you believe there has been an error in law

Alice_Holt

hello007007 wrote: »

How does the upper tribunal work? Is it just like another tribunal? So you can have up to two attemps at the tribunal thing?

Concentrate on your appeal.
You will only need to know about the UT, if your tribunal hearing is unsuccessful.

Please concentrate on having a successful appeal not an unsuccessful appeal.

UT: https://www.gov.uk/administrative-appeals-tribunal/overview
You can only appeal successfully "if you think there was a legal mistake " .

Don't get distracted by some the less helpful posts on your thread. This shows you what you need to do: http://www.advicenow.org.uk/guides/how-win-pip-appeal

Have you contacted your local CAB to get help with your appeal?
Have you completed the SSCS1 form?
http://www.gemap.co.uk/assets/Uploads/SSCS1-Benefit-Appeals.pdf
How much time is left to lodge your appeal with the Tribunal Service?