PIP MR???

DTyaya

calcotti said:

DTyaya said: I will go ahead with the MR as I’ve read the links sent and believe I could stand a good chance even if not successful at this stage but maybe tribunal as the DM mentions nothing about unfamiliar journeys but relates everything in their decision to following journeys as a whole without justification. Although, my report from the assessor noted that I was unable to follow unfamiliar journeys due to anxiety and panic disorder but they believe because I was able to drive a manual car 2-3 times a week up until Nov last year (where the pressure on my legs became to much) that I can do all journeys. The DM also reported that I only made local journeys when I was driving, so I believe I have not been given a fair chance in them assessing what has been said and what evidence has been presented. 

There is a previous tribunal decision regarding the significance of driving when considering the planning a journey descriptors which makes clear that a decision should not be based on driving alone.
https://www.gov.uk/administrative-appeals-tribunal-decisions/sb-v-secretary-of-state-for-work-and-pensions-pip-2019-ukut-274-aac. 

‘I would say that what is required is an overall and holistic assessment encompassing a claimant’s ability to follow the route of a journey through various ways, including driving, travelling on foot and utilising public transport, with neither, of themselves, being determinative.' (paragraph 10)
'... the tribunal should also have considered the possibility that even if the claimant is capable of following part of a route by driving, there might be parts of a journey (I have in mind the starting point and the end point) which will necessarily have to be undertaken by foot.' (paragraph 11)

Also https://www.gov.uk/administrative-appeals-tribunal-decisions/jb-v-secretary-of-state-for-work-and-pensions-pip-2019-ukut-203-aac?utm_source=7c3c6d86-004d-41a7-9ac9-64d35d26deaf&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

Each case will turn upon its individual facts but it is not sufficient to simply say, as did this tribunal, that a claimant is able to follow the route of a journey merely because he is able to follow the bulk of it in his motor car. (paragraph 12)

Thank you calcotti. This is very helpful. 

I understand it’s best to take the approach of how the descriptor applies to me when requesting an MR but would it be worth highlighting the legal points in my MR? Or would it be better to stick to just why it applies?  

calcotti

DTyaya said: I understand it’s best to take the approach of how the descriptor applies to me when requesting an MR but would it be worth highlighting the legal points in my MR? Or would it be better to stick to just why it applies?  

At MR stage I would only make brief reference to the cases at most. Legal precedent is more relevant to a tribunal. 
You can say that the award appears to be based primarily on a consideration of your driving ability and does not take account of your ability when using other modes of travel or consider how you manage when getting from a car to your final destination.

I will be interested in Alice’s comments, she is better versed on these matters than me.

Alice_Holt

calcotti said:

DTyaya said: I will go ahead with the MR as I’ve read the links sent and believe I could stand a good chance even if not successful at this stage but maybe tribunal as the DM mentions nothing about unfamiliar journeys but relates everything in their decision to following journeys as a whole without justification. Although, my report from the assessor noted that I was unable to follow unfamiliar journeys due to anxiety and panic disorder but they believe because I was able to drive a manual car 2-3 times a week up until Nov last year (where the pressure on my legs became to much) that I can do all journeys. The DM also reported that I only made local journeys when I was driving, so I believe I have not been given a fair chance in them assessing what has been said and what evidence has been presented. 

There is a previous tribunal decision regarding the significance of driving when considering the planning a journey descriptors which makes clear that a decision should not be based on driving alone.
https://www.gov.uk/administrative-appeals-tribunal-decisions/sb-v-secretary-of-state-for-work-and-pensions-pip-2019-ukut-274-aac. 

‘I would say that what is required is an overall and holistic assessment encompassing a claimant’s ability to follow the route of a journey through various ways, including driving, travelling on foot and utilising public transport, with neither, of themselves, being determinative.' (paragraph 10)
'... the tribunal should also have considered the possibility that even if the claimant is capable of following part of a route by driving, there might be parts of a journey (I have in mind the starting point and the end point) which will necessarily have to be undertaken by foot.' (paragraph 11)

Also https://www.gov.uk/administrative-appeals-tribunal-decisions/jb-v-secretary-of-state-for-work-and-pensions-pip-2019-ukut-203-aac?utm_source=7c3c6d86-004d-41a7-9ac9-64d35d26deaf&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

Each case will turn upon its individual facts but it is not sufficient to simply say, as did this tribunal, that a claimant is able to follow the route of a journey merely because he is able to follow the bulk of it in his motor car. (paragraph 12)

        Excellent point about the fact that the start and end of a journey by car should be considered, by calcotti.   
If you quote to this in your MR you could use the reference quote CPIP/2614/2018.   ( I would suggest googling it to double check). 

Also   -  CPIP/2477/2018   In which:

"Judge Wikeley highlights how the tribunal’s reliance on the claimant’s ability to drive when assessing the ability to plan and follow a journey did not involve adequate investigation of how the claimant would manage an unfamiliar journey when driving, or whether the claimant needed assistance such as for parts of a journey outside her car. In addition, Judge Wikeley holds that the tribunal fell into error by not assessing the claimant’s ability to use public transport or undertake journeys on foot, saying that -

‘Although the PIP Assessment Guide Part 2: The Assessment Criteria is in no way determinative (see SSWP v IV ((PIP) [2016] UKUT 420 (AAC)), I note that it states that ‘A person should only be considered able to follow an unfamiliar journey if they would be capable of using public transport – the assessment of which should focus on ability rather than choice’ [page 112 of June 2019 update]. By the same token, as part of the overall and holistic assessment, a claimant’s ability to plan and follow a journey on foot must be considered (see MH v SSWP (PIP) [2016] UKUT 531 (AAC); [2018] AACR 12 at paragraphs 37 and 44).’ (paragraph 11)"

(Again  if you google CPIP/2477/2018 you should find more information)

And perhaps CPIP/1347/2015 which concerns the claimants ability to deal with small disruptions or changes along the journey (such as roadworks) ; if this applies to you.
  
      As noted above the assessment guide (although not case law itself) states:
      " A person should only be considered able to follow an unfamiliar journey if they would be capable of using public transport – the assessment of which should focus on ability rather than choice." 
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/918329/pip-assessment-guide-part-2-assessment-criteria.pdf
Page 115.


On balance I think it may be worthwhile referencing the relevant case law / PIP assessment guide on your MR. DWP staff are now finding in the claimants favour at the point when the evidence bundle needs to be prepared for the Tribunal Service. I wonder if this may be because these DWP staff have large workloads, many cases to prepare, and are behind schedule for meeting HMCTS timescales.
So, even if a second DWP decision maker rejects the MR, it is possible that another staff member inundated with Tribunal cases to prepare may decide that your case would succeed at tribunal and change the decision at that point, possibly based on the clarity of a well written MR.     
     
     

       

DTyaya

Alice_Holt said:

calcotti said:

DTyaya said: I will go ahead with the MR as I’ve read the links sent and believe I could stand a good chance even if not successful at this stage but maybe tribunal as the DM mentions nothing about unfamiliar journeys but relates everything in their decision to following journeys as a whole without justification. Although, my report from the assessor noted that I was unable to follow unfamiliar journeys due to anxiety and panic disorder but they believe because I was able to drive a manual car 2-3 times a week up until Nov last year (where the pressure on my legs became to much) that I can do all journeys. The DM also reported that I only made local journeys when I was driving, so I believe I have not been given a fair chance in them assessing what has been said and what evidence has been presented. 

There is a previous tribunal decision regarding the significance of driving when considering the planning a journey descriptors which makes clear that a decision should not be based on driving alone.
https://www.gov.uk/administrative-appeals-tribunal-decisions/sb-v-secretary-of-state-for-work-and-pensions-pip-2019-ukut-274-aac. 

‘I would say that what is required is an overall and holistic assessment encompassing a claimant’s ability to follow the route of a journey through various ways, including driving, travelling on foot and utilising public transport, with neither, of themselves, being determinative.' (paragraph 10)
'... the tribunal should also have considered the possibility that even if the claimant is capable of following part of a route by driving, there might be parts of a journey (I have in mind the starting point and the end point) which will necessarily have to be undertaken by foot.' (paragraph 11)

Also https://www.gov.uk/administrative-appeals-tribunal-decisions/jb-v-secretary-of-state-for-work-and-pensions-pip-2019-ukut-203-aac?utm_source=7c3c6d86-004d-41a7-9ac9-64d35d26deaf&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

Each case will turn upon its individual facts but it is not sufficient to simply say, as did this tribunal, that a claimant is able to follow the route of a journey merely because he is able to follow the bulk of it in his motor car. (paragraph 12)

        Excellent point about the fact that the start and end of a journey by car should be considered, by calcotti.   
If you quote to this in your MR you could use the reference quote CPIP/2614/2018.   ( I would suggest googling it to double check). 

Also   -  CPIP/2477/2018   In which:

"Judge Wikeley highlights how the tribunal’s reliance on the claimant’s ability to drive when assessing the ability to plan and follow a journey did not involve adequate investigation of how the claimant would manage an unfamiliar journey when driving, or whether the claimant needed assistance such as for parts of a journey outside her car. In addition, Judge Wikeley holds that the tribunal fell into error by not assessing the claimant’s ability to use public transport or undertake journeys on foot, saying that -

‘Although the PIP Assessment Guide Part 2: The Assessment Criteria is in no way determinative (see SSWP v IV ((PIP) [2016] UKUT 420 (AAC)), I note that it states that ‘A person should only be considered able to follow an unfamiliar journey if they would be capable of using public transport – the assessment of which should focus on ability rather than choice’ [page 112 of June 2019 update]. By the same token, as part of the overall and holistic assessment, a claimant’s ability to plan and follow a journey on foot must be considered (see MH v SSWP (PIP) [2016] UKUT 531 (AAC); [2018] AACR 12 at paragraphs 37 and 44).’ (paragraph 11)"

(Again  if you google CPIP/2477/2018 you should find more information)

And perhaps CPIP/1347/2015 which concerns the claimants ability to deal with small disruptions or changes along the journey (such as roadworks) ; if this applies to you.
  
      As noted above the assessment guide (although not case law itself) states:
      " A person should only be considered able to follow an unfamiliar journey if they would be capable of using public transport – the assessment of which should focus on ability rather than choice." 
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/918329/pip-assessment-guide-part-2-assessment-criteria.pdf
Page 115.


On balance I think it may be worthwhile referencing the relevant case law / PIP assessment guide on your MR. DWP staff are now finding in the claimants favour at the point when the evidence bundle needs to be prepared for the Tribunal Service. I wonder if this may be because these DWP staff have large workloads, many cases to prepare, and are behind schedule for meeting HMCTS timescales.
So, even if a second DWP decision maker rejects the MR, it is possible that another staff member inundated with Tribunal cases to prepare may decide that your case would succeed at tribunal and change the decision at that point, possibly based on the clarity of a well written MR.     
     
     

       

This is very useful. Thank you for the support in this. I will update and let you all know how I get on with it.