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PIP Tribunal
- zadie
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3 days 1 hour ago #314887 by zadie
PIP Tribunal was created by zadie
I’m interested to hear any thoughts about my experience, and what might be the remedy for my dilemma. Having been on PIP since age 14 and now 38 the person I supported was awarded 2 points in total at his review having previously been awarded enhanced daily living and lower rate mobility.
I attended a PIP first tier tribunal where the DWP representative was present. Before we started the judge said that having looked at the case they were going to award x number of points and award the enhanced daily living rate. The judge asked dwp if they agreed and they said yes that they were contesting only the mobility component, it was as if they had already consulted and agreed this between them. That concerned me.
So we were told that the mobility component is what was being considered and the judge set out the procedure for the hearing in which I was told that the dwp may ask questions as well as the panel. I asked if I could ask questions of the DWP and was told no as I was the respondent. I didn’t question this at the time but it seemed odd. I had a strong felt sense if being managed by the judge. In the end they decided “that the very high threshold for overwhelming distress” had not been met and awarded no points for mobility.
My question is, have they made in error in the procedure in disallowing asking DWP questions and how can I check or does anyone on here know what the case law says about overwhelming distress as I think they’ve made the wrong call?
Any advice from someone who knows would be gratefully received. Thanks
I attended a PIP first tier tribunal where the DWP representative was present. Before we started the judge said that having looked at the case they were going to award x number of points and award the enhanced daily living rate. The judge asked dwp if they agreed and they said yes that they were contesting only the mobility component, it was as if they had already consulted and agreed this between them. That concerned me.
So we were told that the mobility component is what was being considered and the judge set out the procedure for the hearing in which I was told that the dwp may ask questions as well as the panel. I asked if I could ask questions of the DWP and was told no as I was the respondent. I didn’t question this at the time but it seemed odd. I had a strong felt sense if being managed by the judge. In the end they decided “that the very high threshold for overwhelming distress” had not been met and awarded no points for mobility.
My question is, have they made in error in the procedure in disallowing asking DWP questions and how can I check or does anyone on here know what the case law says about overwhelming distress as I think they’ve made the wrong call?
Any advice from someone who knows would be gratefully received. Thanks
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- LL26
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3 hours 3 minutes ago #314939 by LL26
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by LL26 on topic PIP Tribunal
Hi zadie,
Firstly please have a look at a recent post I wrote about a possible appeal to Upper Tribunal.
www.benefitsandwork.co.uk/kunena/10-dla-...ed-pip-appeal#314815
Your first steps will be to write in and ask for the written statement of reasons and record of proceedings.
In your specific case there may well have been the appearance of bias.
But I think you may have other areas you may wish to consider where there could be an arguable material error of law.
However please consider the tribunal scenario first.
1. Was the DWP rep (presenting officer) alone with the tribunal? This should not happen. It would amount to a breach of natural justice, and give the impression of bias. It would amount to a serious error of law. The ROP could provide vital clues that could suggest if any DWP/tribunal conversation has occurred. ( Not that any such conversation will be recorded but there might be a comment that refers to this or suggests this.)The ROP generally will give an irrefutable record of everything said during the hearing and this will need to be scrutinized as described in the linked post.
2. What exactly was said about the seemingly done deal in the hearing? (I don't necessarily think that agreeing to proceed only on the basis of mobility is unlawful, since daily living is agreed. It makes common sense and saves valuable tribunal time to concentrate on only the matters that are in contention.) How this happens of course may be open to scrutiny!
3. All the points in the previous linked post about evidence, explanations etc also apply so compare ROP and WSOR when these both arrive.
4. I think that where you might find some real traction in identifying an error of if law is because this is a Supersession case. This is where DWP have reduced/stopped an ongoing award. This appears to have happened here. As a Supersession it is for DWP to to prove on the balance of probability that there has been an actual change of circumstances, so basically health has improved to the extent that reduced or zero points properly apply. Unless such a change of circs can be proved benefit can not legally be revised. Any tribunal determining a Supersession must consider whether DWP has proved the case, and more importantly as with all of their findings, made adequate lawful explanation of their decision.
5. One possible error of law is unfairness - it continues from the theme of breach of natural justice and right to a fair trial. This is enshrined in Art 6 ECHR. Additionally the overriding objective of the tribunal which is Rule 2 - Tribunal Rules (SEC) 2008 is that of fairness. If there are questions of DWP that you wished to make these should have been allowed. The tribunal process is an inquisitorial one, and is not the same as in eg criminal trials where this would not be allowed.
Equally if you were not given a chance to address the tribunal, give evidence, provide closing remarks to add or highlight any matters, this might indicate unfairness.
5. As with the linked post - compare the legal test of Mobility 1 with the purported test used by the tribunal. (I can't really advise whether what's said is correct in abstract - but if you are not clear then you could repost.) - there is also case law that may be relevant but again difficult in abstract.
Compare the evidence presented, to the evidence per ROP relied upon. If you have had a previous award of benefit, and assuming this was correctly awarded, given the supersession it seems very likely that some sort of material error has been made.
If there is one or more material arguable errors of law, then the decision should be set aside.
I hope this helps
LL26
Firstly please have a look at a recent post I wrote about a possible appeal to Upper Tribunal.
www.benefitsandwork.co.uk/kunena/10-dla-...ed-pip-appeal#314815
Your first steps will be to write in and ask for the written statement of reasons and record of proceedings.
In your specific case there may well have been the appearance of bias.
But I think you may have other areas you may wish to consider where there could be an arguable material error of law.
However please consider the tribunal scenario first.
1. Was the DWP rep (presenting officer) alone with the tribunal? This should not happen. It would amount to a breach of natural justice, and give the impression of bias. It would amount to a serious error of law. The ROP could provide vital clues that could suggest if any DWP/tribunal conversation has occurred. ( Not that any such conversation will be recorded but there might be a comment that refers to this or suggests this.)The ROP generally will give an irrefutable record of everything said during the hearing and this will need to be scrutinized as described in the linked post.
2. What exactly was said about the seemingly done deal in the hearing? (I don't necessarily think that agreeing to proceed only on the basis of mobility is unlawful, since daily living is agreed. It makes common sense and saves valuable tribunal time to concentrate on only the matters that are in contention.) How this happens of course may be open to scrutiny!
3. All the points in the previous linked post about evidence, explanations etc also apply so compare ROP and WSOR when these both arrive.
4. I think that where you might find some real traction in identifying an error of if law is because this is a Supersession case. This is where DWP have reduced/stopped an ongoing award. This appears to have happened here. As a Supersession it is for DWP to to prove on the balance of probability that there has been an actual change of circumstances, so basically health has improved to the extent that reduced or zero points properly apply. Unless such a change of circs can be proved benefit can not legally be revised. Any tribunal determining a Supersession must consider whether DWP has proved the case, and more importantly as with all of their findings, made adequate lawful explanation of their decision.
5. One possible error of law is unfairness - it continues from the theme of breach of natural justice and right to a fair trial. This is enshrined in Art 6 ECHR. Additionally the overriding objective of the tribunal which is Rule 2 - Tribunal Rules (SEC) 2008 is that of fairness. If there are questions of DWP that you wished to make these should have been allowed. The tribunal process is an inquisitorial one, and is not the same as in eg criminal trials where this would not be allowed.
Equally if you were not given a chance to address the tribunal, give evidence, provide closing remarks to add or highlight any matters, this might indicate unfairness.
5. As with the linked post - compare the legal test of Mobility 1 with the purported test used by the tribunal. (I can't really advise whether what's said is correct in abstract - but if you are not clear then you could repost.) - there is also case law that may be relevant but again difficult in abstract.
Compare the evidence presented, to the evidence per ROP relied upon. If you have had a previous award of benefit, and assuming this was correctly awarded, given the supersession it seems very likely that some sort of material error has been made.
If there is one or more material arguable errors of law, then the decision should be set aside.
I hope this helps
LL26
Nothing on this board constitutes legal advice - always consult a professional about specific problems
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