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PIP MR request - Activity 9 - Clarification over case law

edited 30 November -1 at 1:00AM in Benefits & Tax Credits
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  • minimad1970minimad1970 Forumite
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    venison wrote: »
    I would have thought that "engaging with others face to face" would have been in all situations, after all you either have a problem with this or you don't.
    That would be my take on it anyway.

    My son has autism and really struggles with "engaging with others face to face". In a social situation it's particularly difficult, but he can just about manage in a professional situation. He says it's a more controlled environment and that professional people won't behave unpredictably.
  • DemeraraDemerara Forumite
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    My son has autism and really struggles with "engaging with others face to face". In a social situation it's particularly difficult, but he can just about manage in a professional situation. He says it's a more controlled environment and that professional people won't behave unpredictably.

    Yes, absolutely, people fail to understand that work IS a completely different world. I can manage at work, yes but I often come home and cry because I am exhausted from the mental and emotional effort it takes me to be able to function. In a social situation, if I had any energy left, that would be impossible.
  • Alice_HoltAlice_Holt Forumite
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    Demerara wrote: »
    I felt I explained in my MR request how work is in a "controlled" environment, I only work with a small group of people, the same people over and over again and the scope of my work is rather narrow. I work in an office environment which means that i can use assistive devices but that this is not the case in a normal environment ...
    .

    I think this could be an important argument to make in your submission to the tribunal.
    And that, apart from a work environment, face to face engagement with other people is very difficult and can't be done to an acceptable standard.
    A tribunal would then need to consider the application of "the majority of the time". I seem to recall that if an activity can't be done at any time during the day, then this should be considered as not able to do it reliably (i.e you cannot necessarily perform the activity to an acceptable standard at a time during the day when the need to do so may arise).
    The fact that you are exhausted after work and unable to engage with others, should also be taken into account.
    I can't off-hand recall any case law around this - but other knowledgeable forumites might.

    I wonder (and I don't mean this disrespectfully) if your work colleagues make adjustments in their face to face interactions with you? If so, and if they would be willing to explain this in a letter to the tribunal panel, this might help at appeal.

    I'd be very interested in hearing the outcome of your appeal, if you would be kind enough to update us.
    Alice Holt Forest situated some 4 miles south of Farnham forms the most northerly gateway to the South Downs National Park.
  • DemeraraDemerara Forumite
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    Alice_Holt wrote: »
    I think this could be an important argument to make in your submission to the tribunal.
    And that, apart from a work environment, face to face engagement with other people is very difficult and can't be done to an acceptable standard.
    A tribunal would then need to consider the application of "the majority of the time". I seem to recall that if an activity can't be done at any time during the day, then this should be considered as not able to do it reliably (i.e you cannot necessarily perform the activity to an acceptable standard at a time during the day when the need to do so may arise).
    The fact that you are exhausted after work and unable to engage with others, should also be taken into account.
    I can't off-hand recall any case law around this - but other knowledgeable forumites might.

    I wonder (and I don't mean this disrespectfully) if your work colleagues make adjustments in their face to face interactions with you? If so, and if they would be willing to explain this in a letter to the tribunal panel, this might help at appeal.

    I'd be very interested in hearing the outcome of your appeal, if you would be kind enough to update us.

    Thanks for the info around acceptable standards, I did see that somewhere too but did not include in my MR request so will need to come back to the thread when I am completing my appeal form.

    I only started disclosing my disability about 1.5 years ago when I felt I could no longer manage by myself. At work, I am very good at "masking" when I am not coping and over the years have developed a number of strategies so I can manage. But I think the one colleague I work the most with and has seen me struggle the most would not refuse writing a letter for the appeal.

    I will update on the outcome as I believe in reciprocity! Got help from the forum and in turn, if my situation could help others, that'd be great!
  • edited 19 September 2019 at 12:17PM
    MuttleythefrogMuttleythefrog Forumite
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    edited 19 September 2019 at 12:17PM
    Demerara wrote: »
    I will update on the outcome as I believe in reciprocity! Got help from the forum and in turn, if my situation could help others, that'd be great!
    Please do... I've not posted in the thread... you've had great advice. But I have read and it will be interesting to see how it plays out at appeal. I certainly get the 'masking illness' at work.. eventually I fell short. And it sounds to me like you've engineered circumstances at work to fit with your difficulties... I used to just drive everyone out of my way (or sack them)! But I never have made a claim when working and also get ESA... and I always feared working again would cause the difficulty faced by you. There is so much superficiality and wild extrapolation (like in my case using the fact I went to University a generation ago and mainstream school) involved often in assessing that I am not surprised you face this problem described. You know your circumstances best and hopefully you will successfully get tribunal to see the finer detail of work circumstances and how actually they might impress upon them your difficulties in relation to the relevant activity and how you work around them rather than shortcut to the idea you don't have any. Sometimes perhaps is the idea that turning your ship to face a wave is the safest way to navigate it... it's a strategy I've employed in ESA and DLA/PIP claims... that where real events could be indicate of lacking disability I've used them to actually show what disability is presenting.

    Good luck! And of course well done for working given your difficulties.
    "Do not attribute to conspiracy what can adequately be explained by incompetence" - rogerblack
  • DemeraraDemerara Forumite
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    Please do... I've not posted in the thread... you've had great advice. But I have read and it will be interesting to see how it plays out at appeal. I certainly get the 'masking illness' at work.. eventually I fell short. And it sounds to me like you've engineered circumstances at work to fit with your difficulties... I used to just drive everyone out of my way (or sack them)! But I never have made a claim when working and also get ESA... and I always feared working again would cause the difficulty faced by you. There is so much superficiality and wild extrapolation (like in my case using the fact I went to University a generation ago and mainstream school) involved often in assessing that I am not surprised you face this problem described. You know your circumstances best and hopefully you will successfully get tribunal to see the finer detail of work circumstances and how actually they might impress upon them your difficulties in relation to the relevant activity and how you work around them rather than shortcut to the idea you don't have any. Sometimes perhaps is the idea that turning your ship to face a wave is the safest way to navigate it... it's a strategy I've employed in ESA and DLA/PIP claims... that where real events could be indicate of lacking disability I've used them to actually show what disability is presenting.

    Good luck! And of course well done for working given your difficulties.

    Thank you :)

    I do quite like the "engineered circumstances" turn of phrase, it is an accurate reflection of my experience!

    I have to admit your post has got me intrigued and I am wondering what you have experienced ... I am starting to question whether "masking" my difficulties has been more of a disservice to myself ... working does give me a sense of "normality", that I am still capable. Should I stop work, I believe I would fall into depression and would be totally cut off from the world. At the same time, it is becoming harder and harder to maintain that facade - there is only so much stress one can take.

    I find it idiotic/shocking that assessors are allowed to make assumptions (based on education and employment history) that are clearly prejudiced (and I bet against the values and principles of quite a few of the professions they represent) ... just because someone can do something does not mean that they are not impacted by their disability.
  • speedfreek1000speedfreek1000 Forumite
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    Alice_Holt wrote: »
    Often a tribunal will ask a claimant about GP and other professional appointments, interactions in shops, etc.

    No the DWP tried that one on with DLA but was it Judge Jacobs or Jefferies? Ruled that often people with mental health problems will throw everything and some into going to those professional appointments causing themselves harm so it would not pass the test.

    As for shopping saying hello, please and thank you to a shop assistant is not classed and never has been as social engagement - the DWP lost that argument too at a DLA upper tribunal. There's also PIP case law on this (recent as well) as somebody won 8 points arguing that going to the fish n chip shop and pub daily did not amount to social engagement.

    So... DWP are just rehashing old lost DLA arguments until they loose at Upper Tribunal again. Which didn't stop them still using said arguments in DLA submissions after the ruling nor will it stop them now!
  • edited 20 September 2019 at 5:59PM
    Alice_HoltAlice_Holt Forumite
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    edited 20 September 2019 at 5:59PM
    No the DWP tried that one on with DLA but was it Judge Jacobs or Jefferies? Ruled that often people with mental health problems will throw everything and some into going to those professional appointments causing themselves harm so it would not pass the test.

    As for shopping saying hello, please and thank you to a shop assistant is not classed and never has been as social engagement...!

    Perhaps I should expand on my comment.

    A tribunal will ask the claimant questions around how they socially engage, if that descriptor has been disputed in the appeal papers, including with professionals such as GP's.
    Because assessments often decide claimants can engage socially because they shop, etc the tribunal needs to ask the claimant about this (if only to establish the assessment decision was flawed).

    Unlike assessors, a tribunal panel will be very thorough. They will have follow on questions about frequency, after effects, in order to gauge whether this is an activity the claimant can do reliably and effectively.
    They will be aware of the UT rulings around the PIP activities.

    You seem to have made the assumption that I was asserting that if a claimant tells the tribunal they can speak to shop assistants, then the tribunal will favour the DWP evidence. If you read my comment more carefully, you will understand that your assumption was incorrect.

    You are probably thinking of Judge Jacobs. Wasn't Judge Jeffreys an infamous C17th hanging judge?

    This is helpful case law on the topic:
    A tribunal should make findings of fact as to the nature or quality of the appellant’s interactions with other people (Upper Tribunal Judge Markus QC in HJ v SSWP (PIP) [2016] UKUT 487 (AAC) at 17).
    Alice Holt Forest situated some 4 miles south of Farnham forms the most northerly gateway to the South Downs National Park.
  • speedfreek1000speedfreek1000 Forumite
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    That's a lot more descriptive :T
  • edited 22 September 2019 at 5:19PM
    MuttleythefrogMuttleythefrog Forumite
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    edited 22 September 2019 at 5:19PM
    Demerara wrote: »
    Thank you :)

    I do quite like the "engineered circumstances" turn of phrase, it is an accurate reflection of my experience!

    I have to admit your post has got me intrigued and I am wondering what you have experienced ... I am starting to question whether "masking" my difficulties has been more of a disservice to myself ... working does give me a sense of "normality", that I am still capable. Should I stop work, I believe I would fall into depression and would be totally cut off from the world. At the same time, it is becoming harder and harder to maintain that facade - there is only so much stress one can take.

    I find it idiotic/shocking that assessors are allowed to make assumptions (based on education and employment history) that are clearly prejudiced (and I bet against the values and principles of quite a few of the professions they represent) ... just because someone can do something does not mean that they are not impacted by their disability.
    You're welcome. I think these things are so person specific it is hard to translate much. For me, working was always a war of environmental control... inherently high stress because I would be filled with self doubt and need to organise the world around me including importantly the people. I was highly manipulative.. and wrecked people's careers even when I respected and liked them. But I would completely burn out.. struggle to eat and sleep.. my health would decline until I had to make my excuses (always fabricated except last job) to leave. My last job was catastrophic.. I got a senior IT position with a large public sector organisation.. I'd not experienced the bureaucracy and lack of ability to control... I was 4 weeks into my job and I still didn't even have a dedicated PC or desk...I was having to fuel increasingly violent fantasies just to get there and cope. Ultimately I tried to walk out of the window to the roundabout below...I was completely out of control. 10 years on from promising myself I'd never put myself through the horrors of work again I consider that judgement my finest even if made in desperate circumstances.

    So I do very much relate to what you're saying... and the thoughts in your mind I might have triggered. Crucially for me amidst a very difficult job market I was cleverly applying for jobs that I felt I'd be able to manage my mental illnesses within... my problem was I was being rejected as overqualified... but I couldn't be honest about any of my health problems and the relevance to work. Really I just wanted a simple job in a simple environment which was simple to get to... but I ended up forced to apply for jobs more suited to my work background and got a top job. That job had so many factors about it liable to create me serious problems that I could not have designed a worse environment for me. Within an hour I knew I was going to end up in deep trouble.... by then I was already using extreme coping strategies just to maintain an appearance of regularity.

    My view is MI is largely manageable if the environment is manageable and cleverly constructed or chosen. And that's why your circumstances are interesting... you've seemingly been clever enough to create the right circumstances for you to persist without engaging the symptoms/disabilities you can face. Someone with no legs could be a top computer game player experiencing and exhibiting no evidence of disability.. the concept translates to physical disability... put someone with no legs onto an athletics track and they are going to be demonstrably disabled and with severe symptom of physical defect. So my advice to you probably would be keep working while you can keep finding or creating the environments you can cope within. Given the greater tolerance and openness of MI in society also possibly the assistance of employers to make it viable. It is entirely possible that without work depression could set in.... which is why generally speaking for mental health people are advised to remain as active and functional in society as they can.

    I agree obviously on your last point. I do find it ironic they expect your supporting evidence to be recent yet they can rely on near 30 year old facts (in my case) to draw important inferences that seem to be loosely related even if the facts were contemporary. My great criticism of ESA and PIP is that they encourage you to focus on maintaining (evidence of) qualification for the benefits rather than making any positive change. There is a fear they will use any concession of capability or activity as a stick to beat you with and conclude zero point scoring descriptors. Crucial I think is imposing into evidence, be it written or oral, the associated difficulties with activities done so as to encourage more thought and accuracy into assessment. Assumption and extrapolation are certainly not confined to benefit assessments of course... I met what was the (quoting my GP here) "most senior psychiatrist in the region" who described in his first report, full of gloriously long words and professional terms, my last job being a menial one in a call centre causing sufferance of my ego... I ended up taking that job description to our last encounter and I politely explained to him that in his lowly position of a bull*****er I would no longer be subjecting myself to being the inspiration for his latest works of fiction. His final report to my GP I got a copy of and made manual corrections to all the errors in it... and sent it to my GP with a comment at the end "Must do better". The great thing about being unemployed is you can get away with insulting idiots who should be...lol
    "Do not attribute to conspiracy what can adequately be explained by incompetence" - rogerblack
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