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    • Demerara
    • By Demerara 7th Jul 19, 8:14 PM
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    Demerara
    PIP MR request - Activity 9 - Clarification over case law
    • #1
    • 7th Jul 19, 8:14 PM
    PIP MR request - Activity 9 - Clarification over case law 7th Jul 19 at 8:14 PM
    Hi All,

    I am preparing my MR request as I think I should have been awarded points under Activity 9, engaging with others face to face.

    I have been looking at case law and was reading through CPIP/2685/2016 (SF v The Secretary of State [2016] UKUT 0543 (AAC)). There are some very knowledgeable people on the forum and I was wondering if anyone could confirm whether the judgment definitely stated that under this descriptor, the claimant can only be assessed in social situations and NOT professional ones? I have read through and did not interpret it this way but saw some articles saying so.

    Many thanks.
Page 4
    • Demerara
    • By Demerara 9th Nov 19, 8:05 PM
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    Demerara
    Hi Alice Holt

    I was told to have a look at Secretary of State V Fairey [aka Halliday], 1997. In the Fairey case, the following was stated in the House of Lords:
    “the test ….is whether the attention is reasonably required to enable the severely disabled person, as far as is reasonably possible to lead a normal life…. Social life in the sense of mixing with others, taking part in activities with others, undertaking recreation and cultural activities can be part of normal life”

    This would fit my case but then I am unsure whether I can refer to this. I have found other PIP judgment where the ruling refers to SoS vs Fairey

    https://assets.publishing.service.gov.uk/media/59019c04e5274a06b3000261/CPIP_3622_2016-00.pdf

    So confusing!
    • Alice Holt
    • By Alice Holt 9th Nov 19, 8:22 PM
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    Alice Holt
    I'd definitely cite that PIP judgement.

    This might well apply to you - "TR-vSSWP (PIP) [2015] UKUT 0626 (AAC) is likely to be pertinent. It is in this context that I reiterate his point in CE, set out above. TR establishes that if a claimant is unable to perform an activity for part of a day that day counts towards that period provided that the inability to perform it affects them on that day to more than a trivial extent: in particular see [32-34]...."

    I have just skimmed through the judgement, but it seems very relevant to you. Well found!
    Alice Holt Forest situated some 4 miles south of Farnham forms the most northerly gateway to the South Downs National Park.
    • Demerara
    • By Demerara 9th Nov 19, 8:34 PM
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    Demerara
    Ah yes, silly of me, true that whilst I can't refer to the original ruling, I can refer to the PIP judgment that refers to it!!!

    Thank so much Alice Holt, I think i can see light at the end of the tunnel!!
    • Alice Holt
    • By Alice Holt 9th Nov 19, 8:47 PM
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    Alice Holt
    Also:
    Para 11
    "her appearing to engage satisfactorily with health professionals and with the tribunal, that she would be able to engage with others “whenever reasonably necessary". That is the wrong test."
    Could be helpful if that was included in the DM's reasoning for your decision.

    And this may be worth quoting - "The purpose of PIP, like DLA before it, is to assist those with disabilities to live, as far as possible, the life that they would wish to live, and any mitigating behaviour adopted because of that disability must be disregarded."
    (Disregarded because "being compared with the baseline criteria of a person without a relevant disability who, using activity 7 descriptor a as an example, “can express and understand verbal information unaided”).
    Para 20.

    Because this judgement refers back to a DLA judgement concerning the definition of "reasonably required", which also has relevance in PIP particularly re "The purpose of PIP" - It is a good spot.

    Edit: Had a longer look through the judgement, now.
    Alice Holt Forest situated some 4 miles south of Farnham forms the most northerly gateway to the South Downs National Park.
    • Demerara
    • By Demerara 9th Nov 19, 8:56 PM
    • 154 Posts
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    Demerara
    I am getting excited now lol. Need to get enough head space to write my statement - not easy but at least throwing in case law can potentially support the tribunal to understand my point!
    • Demerara
    • By Demerara 9th Nov 19, 9:07 PM
    • 154 Posts
    • 147 Thanks
    Demerara
    Would it be cheeky to add this?

    SF v The Secretary of State [2016] UKUT 0543 (AAC)
    Assessments of a claimant’s ability to engage with other people may be nuanced and finely balanced, and I cannot exclude the possibility that the tribunal would have assessed the claimant’s ability to engage with other people differently if they had found that he did not in fact take part in any form of work-related activity.
    • Alice Holt
    • By Alice Holt 9th Nov 19, 9:49 PM
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    Alice Holt
    Would it be cheeky to add this?

    SF v The Secretary of State [2016] UKUT 0543 (AAC)
    Assessments of a claimant’s ability to engage with other people may be nuanced and finely balanced, and I cannot exclude the possibility that the tribunal would have assessed the claimant’s ability to engage with other people differently if they had found that he did not in fact take part in any form of work-related activity.
    Originally posted by Demerara
    I'm not sure.

    This judgement would seem to hinge on whether the FTT made an error in law in not carrying out a proper investigation of the claimant’s ability to interact with other people in social situations, They justified their decision not to award points due in part to their acceptance that the claimant socially engaged "at ‘a government group for those out of work’ (the evidence of the nurse assessor). However, the claimant being in the Support Group of ESA did not attend such meetings, and raised this in his statement. The UT have set the decision aside because "The tribunal did not resolve that conflict,"

    At least, that's my reading of the judgement.

    However, this general point at para 6 may be relevant "It would follow that in all cases in which Activity 9 is in issue decision makers should apply the definition of ‘engage socially’ in Schedule 1 and should consider a claimant’s ability to interact with others in a contextually and socially appropriate manner, the claimant’s ability to understand body language, and the claimant’s ability to establish relationships in a social context."

    The underlined phrase might be worth putting in your statement if it applies in your case, but as general PIP point of law, rather than part of a more specific case law point.
    Alice Holt Forest situated some 4 miles south of Farnham forms the most northerly gateway to the South Downs National Park.
    • Demerara
    • By Demerara 9th Nov 19, 9:54 PM
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    Demerara
    Hmm I get your point.

    I take it as implying that when assessing needs at any stage of the PIP process, they should not make assumptions based on activities that the claimant is doing and in effect, not looking at the difficulties the claimant may be experience but completing the activity nonetheless?
    • Alice Holt
    • By Alice Holt 9th Nov 19, 10:12 PM
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    Alice Holt
    I take it as implying that when assessing needs at any stage of the PIP process, they should not make assumptions based on activities that the claimant is doing and in effect, not looking at the difficulties the claimant may be experience but completing the activity nonetheless?
    Originally posted by Demerara
    Would agree with this.

    [I think] if completing the activity nonetheless involves the use of mitigating behaviours (per the earlier judgement), and:
    also if social engagement at work is limited by your disability in a manner that other employees are not (as I think you stated earlier in the thread); and
    the effort of social engagement at work means that you are exhausted after work and can't engage ( again the bit about "unable to perform an activity for part of a day that day counts towards that period provided that the inability to perform it affects them on that day to more than a trivial extent" in that judgement) - which I also think you stated.

    Then - that all builds to the case that you can't do the activity reliably in order that "Social life... can be part of normal life".
    Last edited by Alice Holt; 09-11-2019 at 10:30 PM.
    Alice Holt Forest situated some 4 miles south of Farnham forms the most northerly gateway to the South Downs National Park.
    • Demerara
    • By Demerara 9th Nov 19, 10:14 PM
    • 154 Posts
    • 147 Thanks
    Demerara
    Ah, excellent, i am so lost with all these different rulings, thanks for putting it together for me!
    • Alice Holt
    • By Alice Holt 9th Nov 19, 10:29 PM
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    Alice Holt
    Plus I think you mentioned earlier in the thread that you had workplace adaptions. Explain these in your statement as this would be part of the "mitigating behaviours".

    A letter from your work colleague might illustrate that your social engagement at work is limited by your disability in a manner that other employees aren't (again I recall this was mentioned in the thread?).

    That way, you can build an argument backed up by evidence.

    I would tend to place the emphasis on your personal situation and how you manage (or not) the descriptor reliably, in an acceptable manner, and at all times when required. I.e so that "Social life... can be part of normal life". (or not).
    Last edited by Alice Holt; 09-11-2019 at 10:32 PM.
    Alice Holt Forest situated some 4 miles south of Farnham forms the most northerly gateway to the South Downs National Park.
    • Demerara
    • By Demerara 11th Nov 19, 5:35 PM
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    Demerara
    My written submission (5 pages) and further evidence are now in the post. As mentioned previously, I was contacted and asked to participate in their online decision making pilot and I have agreed.

    I will update once I have the outcome but regardless of what the decision is, thanks so much everyone for your guidance and support, particularly Alice Holt
    • calcotti
    • By calcotti 11th Nov 19, 5:58 PM
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    calcotti
    My written submission (5 pages) and further evidence are now in the post. As mentioned previously, I was contacted and asked to participate in their online decision making pilot and I have agreed.

    I will update once I have the outcome but regardless of what the decision is, thanks so much everyone for your guidance and support, particularly Alice Holt
    Originally posted by Demerara
    If you feel like posting, I (and I expect several other regular posters) would be very interested to hear about your experience of the online decision making process.

    Good luck.
    • Demerara
    • By Demerara 27th Nov 19, 7:41 PM
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    Demerara
    Hi everyone,

    So ... not quite the update I wanted but I have now been notified that my info was reviewed by the tribunal and that they have decided that a hearing is required.

    Wonder if that puts me right at the bottom of the queue for a hearing date?

    Anyway, I think it goes back to people struggling to understand the implications of my disability because I feel I had enough evidence on file.
    • poppy12345
    • By poppy12345 27th Nov 19, 8:40 PM
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    poppy12345
    Hi everyone,

    So ... not quite the update I wanted but I have now been notified that my info was reviewed by the tribunal and that they have decided that a hearing is required.

    Wonder if that puts me right at the bottom of the queue for a hearing date?

    Anyway, I think it goes back to people struggling to understand the implications of my disability because I feel I had enough evidence on file.
    Originally posted by Demerara
    It's rare for anyone to receive a decision without having to appear in person at the Tribunal hearing.


    It doesn't mean they don't understand your disability, it just means they will always prefer you to appear in person, which is why paper based hearings have such a low success rate, which is between 5-8%. Compared to over 70% for those that appear in person.



    Backlogs for hearing dates are huge in most areas and lots are waiting as long as 1 year for a hearing date, so expect a long wait i'm afraid.
    • Demerara
    • By Demerara 27th Nov 19, 8:45 PM
    • 154 Posts
    • 147 Thanks
    Demerara
    Hi poppy12345

    I understand this but I opted in for the online resolution pilot which supposedly meant that they are attempting to resolve appeals online without having recourse to hearings. I did not expect this outcome to be honest, the way I read about the process online would be that if any further clarification is needed, this would be done through the online platform then the virtual tribunal will take a decision. The appellant then has the choice whether to accept the decision or request a hearing. Perhaps I got it wrong? I have to admit I volunteered without being properly informed and when I asked for further details, only got a generic automated style response.
    • calcotti
    • By calcotti 27th Nov 19, 9:19 PM
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    calcotti
    Perhaps they are discovering the limitations of trying to resolve appeals online..
    • Demerara
    • By Demerara 28th Nov 19, 8:08 PM
    • 154 Posts
    • 147 Thanks
    Demerara
    I received an explanatory email today and as calcotti rightly guessed, the panel that reviewed my info felt that a hearing is needed because of "conflicting evidence within the Appeal Bundle". What does that mean?

    The panel also asked me to send in any further medical evidence before the hearing. Does this mean that I have insufficient evidence? Do supporting letters from health professionals need to be explicit about the impact of my condition or is it enough that I have a diagnosis?

    How do I prepare for my hearing when I do not know what the "conflicting evidence" is about?
    Last edited by Demerara; 28-11-2019 at 8:13 PM.
    • poppy12345
    • By poppy12345 28th Nov 19, 8:28 PM
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    poppy12345
    I received an explanatory email today and as calcotti rightly guessed, the panel that reviewed my info felt that a hearing is needed because of "conflicting evidence within the Appeal Bundle". What does that mean?

    The panel also asked me to send in any further medical evidence before the hearing. Does this mean that I have insufficient evidence? Do supporting letters from health professionals need to be explicit about the impact of my condition or is it enough that I have a diagnosis?

    How do I prepare for my hearing when I do not know what the "conflicting evidence" is about?
    Originally posted by Demerara
    Conflicting evidence means there's something that contradicts something else, which is why you should always go through all your evidence with a fine tooth comb.


    The reason they are asking for more evidence is probably because of the contradictions.



    PIP isn't awarded based on a diagnosis, it's how those conditions affect your ability to carry out daily activity based on the PIP descriptors.


    I'm assuming the evidence you sent was copies? this means you must have the originals, so you can check what's already been sent. If you didn't keep copies then you'll need to make sure you double check the bundle when you receive it.


    Face to face advice would be very useful here, once you receive that bundle. Speak to an advice agency near you.
    Last edited by poppy12345; 28-11-2019 at 8:31 PM.
    • Demerara
    • By Demerara 28th Nov 19, 8:36 PM
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    Demerara
    Thanks poppy 12345

    I was aware that a supporting letter could potentially be perceived as contradictory ... a letter which a health professional wrote after I shared a specific situation which I found extremely difficult to deal with at work. The health professional then wrote my manager a letter explaining how difficult it is for me but they wrote it in a generic way, obviously, not referring to that particular situation. Now I am thinking I should have perhaps insisted for another support letter to the drafted specifically in support of my PIP appeal.

    I understand how PIP is awarded according to the descriptors, however, is it necessary to have medical evidence of the IMPACT of the condition? What if I have been discharged by hospital but nonetheless have to deal with the day to day consequences of my disability?
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