Belittled and Humiliated by Tribunal Judge

Hi Christine

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I'm sorry that your client had such a terrible time at the tribunal - even your reduced version sounds terrible.

You can make a complaint about the judge concerned, and the details can be found on the government website:
www.gov.uk/government/organisations/hm-c...complaints-procedure

Regarding how you proceed from this point.

I know you asked for the audio recording and did not receive it, but did you also ask for a Statement of Reasons for the decision? You haven't mentioned it, so I suspect you haven't got it. You could have looked through this and seen whether the Tribunal made an error in law when they came to their decision and appealed to the Upper Tribunal.

Assuming you want to proceed with the paper-based judgement you have asked for - this clearly puts the claimant at a disadvantage because no one gets to hear from them. If you don't have the Statement of Reasons or the Audio Recording it's difficult to get a robust defence and you are left with hoping that you get a more decent judge who understands. I don't know whether you have a copy of the original assessment report (PA4) which tells you the thinking behind the original decision (before the MR). If you don't have that information, it feels like you are fighting with one hand behind your back.

My concern here is that you have asked for a paper-based tribunal. You may get the same answer if you have not had the opportunity to add any information or address the panel's concerns or the original assessor had. (I understand why the choice was made after the client's experience).

Your client has several conditions - but the DWP are not so concerned with the individual conditions but the impact on his daily living or mobility as per the specific PIP criteria. They are fixated on the level of medication that people take and any aids they may need to help them manage. They will always look for contradictions in what people said (though they should certainly not address them in an aggressive and combative manner.

I don't know what your client said about his mobility, but if he said that his mobility was affected or he had difficulty cooking, dressing, washing etc (questions all under daily living), they were clearly going to rebut it with a picture of him holding a perspex screen. I'm not saying this is right, you just need to realise the next judge could do exactly the same thing, so you have to make sure that you have the answers ready to counter this.

Your client could abandon the tribunal and put in for a new claim. If you didn't use our PIP guides in the past you may want to look through them. They are extremely comprehensive in showing what the DWP is looking for and have certainly helped many people increase their chances of getting an award. I would still recommend getting the statement of reasons and audio recording and the old PA4 before putting in for a new claim. The judge sounds appalling, but you still want to avoid any mistakes in the application (if there were any) and try and eliminate the chances of being misinterpreted.

BIS

Hi Christine,
Apologies for the late reply, but I haven't been very well. Presumably you have now had your second tribunal?
I noticed your post, and was somewhat curious. I have made this response, as it may help you to understand the process, and will hopefully also be useful for others who may read this post.

It seems that you have been given a second hearing, which I understand to mean that the original one must have been set aside, which if my assumption is correct, has to mean that it was accepted that an error of law occurred. There is no doubt in my mind that your description of what happened at the first tribunal would constitute an error of law. (First tier decisions can only be set aside on the basis of an error of law - this would include bias apparent or real, procedural irregularity, misapplying the law etc etc. Although the Tribunal has investigative powers, there is a limit to the extent of these. Section 12(8)(a0 Social Security Act 1998 provides that the tribunal need not concern itself with matters not raised within the appeal. Ok, so this still allows some flexibility, but if the tribunal decides to explore areas not already within the scope of the appeal papers, it has to show why it has done so, and that this has been done for proper and judicial reasons. in the case of HI v SSWP [2014] UKUT 0238 (AAC) the tribunal googled a distance that the claimant said she could walk, using Google Maps. That was acceptable, I guess because there was no reason to doubt the maps general accuracy, and the distance between 2 places is an actual fact. Tribunal members are selected on the basis of potential local knowledge, and there is no difference using Google as opposed to a real map. In another case the judge phoned the claimant's GP to verify some documents. JB v SSWP [2009] UKUT 61 (AAC) the judge had overstepped the mark, particularly as he didn't put any of his findings to the claimant, basically the judge had become an investigator and a witness.
Had this judge put the findings of his call to the GP to the claimant it MAY have been sufficient to avoid an error of law. - There is a right to a fair trial -at the court/tribunal hearing, as well as considerations like the judge being non-biased etc. Your post suggests that the judge may well have been biased, making an inappropriate investigation and probably ignoring the actual law relating to PIP.
Clearly the judge was not minded to listen to the reason behind the Facebook photo. However, even if the claimant had been able to lift the perspex on his own, the tribunal would need to consider whether this was a one-off event. The PIP descriptor activities provide points to be awarded on the basis that a claimant can not do the activity for the 'majority of days'. For some, their disability is constant and the descriptor tests are always binary answers- 'I never can' or 'I always can' do this. However, there is a substantial group of people where their abilities vary across the day or week. This often relates to fatigue, but can also include flare ups. So, may your client had a really good day, lifted the perspex sheet and was unable to do anything for the rest of the week. If this was actually the case he would not be precluded from gaining PIP points if 'for the majority of days' he couldn't perform the activity. (This is Regulation 7 PIP Regs. 2013) Additionally, all PIP activities have to be done safely, to an acceptable standard, in a reasonable time (which is twice that of an able bodied person) and repeatedly across the day.
However, as it does appear that the initial tribunal decision was set aside and a second hearing was set up, hopefully these errors will not be made again, and your claimant will receive the correct award. If you receive a lower than expected award, you can consider an appeal to the Upper tribunal. As I have stated if there is an error of law, there is a right of appeal. You would need to write to the Tribunal and ask for the Written Statement of Reasons (WSOR) please also ask for a copy of the record of proceedings, which could be either a video tape, or perhaps a written note. You need to do this within 28 days of the date when the Decision Notice is sent to you. -This may or may not be the actual hearing date.
I am concerned that if your client was frightened off by the treatment he received at the first hearing, and hasn't attended at the second hearing - if the award is lower than he expects, he may have a right to appeal. A similar scenario took place in the case of FJ v SSWP (PIP) [2019] UKUT 27 (AAC) where a poor experience with a previous PIP claim led to him agreeing to a paper hearing. The hearing was adjourned and Mr FJ was directed to attend, but the 2nd tribunal didn't notice this, and had no information about previous awards, hence made the wrong decision. Hence the behaviour of the first tribunal can have an impact as to whether the 2nd tribunal has been fair and made without further errors of law.

You can of course make a fresh PIP claim. This will mean that if awarded PIP will only be grant from the date of claim eg today, no back dating will occur. If the 2nd decision is not favourable, or is too low, then you can ask for the WSOR/ROP with a view to making an appeal to the Upper Tribunal if you can, AS WELL AS making a second claim. whilst this does get complicated, as happened in FJ's case, it does at least mean that you still reserve the possibility of backdating, which if from 2019 is going to be a large payment. The new claim should be processed reasonably quickly, and you can get money from that fairly soon. UT claims do take a while to be dealt with! This should cover all bases!

As stated by BIS, you may wish to make a complaint against the judge in the first hearing.

Let us know how you get on. I apologise again that I was unable to respond sooner.
LL26