Dla upper tribunal appeal- errors in law

Hi everyone

Just wondered if anyone could offer any advice. I lost my Dla appeal in July and lost my mobility. Upon reading the reasons I was shocked to find that the tribunal had totally misunderstood the facts and I feel that they based their decision on these wrong facts. The Citizens advice said nothing more I could do. But it was niggling at me. I have untreated hypothyroidism and CFS / ME and I have muscle weakness and difficulty walking most days. On top of that I started having episodes 2-3 times per month of Hemiplegic migraine which manifests itself in severe weakness/ paralysis of the left side. This leaves me unable to walk for about 10-15 days out of the month. My walking difficulties are variable the rest of the month. When I start to walk I have to slide and drag my legs until they will not walk any further and I will be stuck and exhausted. In the statement of reasons I was shocked to see it stated that I have 2-3 episodes of weakness per month. They have misunderstood and based their decision on this. So it seems rather unfair that they have completely misunderstood the facts as I am virtually unable to walk for most of the time. Would this be an error in law??

Also, when asked about walking to a local shop I stated that under normal circumstances it would take about 10 mins. But with my walking difficulties it would take 30 mins with me having to 'slide' and 'drag' my legs before they came to a stop and I would be exhausted and stuck. My arms also go weak with the act of walking. They seem to have taken my answer of 10 mins and done a calculation to marry the answer to match the Emp report that I could walk 200m. I don't understand how they arrived at this figure as in the record of proceedings it clearly states 10 mins and 30 mins. I even said that it would take me 3 hours to emphasise that I was that slow and would be dragging and sliding my legs. That is recorded in the proceedings too. They don't seem to have taken any notice of the effect, manner and speed of walking. I told them that it is no good me venturing out and not being able to guarantee even making it to the local shop or if I got there I might not make it back. I said to them that if my legs go I cannot lie down in the car park for two hours to rest until I can walk again. My gp wrote that I have problems leaving the house due to physical symptoms of not being able to walk and they had the results of two muscle and nerve tests showing myopathy. They don't seem to have considered any of this preferring to accept the Emps report.

I feel as though I have just been dismissed just to save money and I'm not sure if these factors are classed as errors in law. Surely it must be some kind of error to misunderstand something and make a decision based on these inaccurate facts?

If anyone has any thoughts I'd be grateful as for most of the time I am unable to walk but for short periods I can and I wanted to be honest about this at my tribunal. I feel that this has gone against me. Do you think it's worth appealing to the upper tribunal as I wrote to the tribunal judge and be said it was not an error in law but a question of facts and refused me permission to appeal.
Thankyou
Caroline

Tezzy wrote: Hi everyone

Just wondered if anyone could offer any advice. I lost my Dla appeal in July and lost my mobility. Upon reading the reasons I was shocked to find that the tribunal had totally misunderstood the facts and I feel that they based their decision on these wrong facts. The Citizens advice said nothing more I could do. But it was niggling at me. I have untreated hypothyroidism and CFS / ME and I have muscle weakness and difficulty walking most days. On top of that I started having episodes 2-3 times per month of Hemiplegic migraine which manifests itself in severe weakness/ paralysis of the left side. This leaves me unable to walk for about 10-15 days out of the month. My walking difficulties are variable the rest of the month. When I start to walk I have to slide and drag my legs until they will not walk any further and I will be stuck and exhausted. In the statement of reasons I was shocked to see it stated that I have 2-3 episodes of weakness per month. They have misunderstood and based their decision on this. So it seems rather unfair that they have completely misunderstood the facts as I am virtually unable to walk for most of the time. Would this be an error in law??

Also, when asked about walking to a local shop I stated that under normal circumstances it would take about 10 mins. But with my walking difficulties it would take 30 mins with me having to 'slide' and 'drag' my legs before they came to a stop and I would be exhausted and stuck. My arms also go weak with the act of walking. They seem to have taken my answer of 10 mins and done a calculation to marry the answer to match the Emp report that I could walk 200m. I don't understand how they arrived at this figure as in the record of proceedings it clearly states 10 mins and 30 mins. I even said that it would take me 3 hours to emphasise that I was that slow and would be dragging and sliding my legs. That is recorded in the proceedings too. They don't seem to have taken any notice of the effect, manner and speed of walking. I told them that it is no good me venturing out and not being able to guarantee even making it to the local shop or if I got there I might not make it back. I said to them that if my legs go I cannot lie down in the car park for two hours to rest until I can walk again. My gp wrote that I have problems leaving the house due to physical symptoms of not being able to walk and they had the results of two muscle and nerve tests showing myopathy. They don't seem to have considered any of this preferring to accept the Emps report.

I feel as though I have just been dismissed just to save money and I'm not sure if these factors are classed as errors in law. Surely it must be some kind of error to misunderstand something and make a decision based on these inaccurate facts?

If anyone has any thoughts I'd be grateful as for most of the time I am unable to walk but for short periods I can and I wanted to be honest about this at my tribunal. I feel that this has gone against me. Do you think it's worth appealing to the upper tribunal as I wrote to the tribunal judge and be said it was not an error in law but a question of facts and refused me permission to appeal.
Thankyou
Caroline

Hi T,

May I refer you back to your original query some 4 months ago :

www.benefitsandwork.co.uk/forum?view=top...d=10&id=98644#107393

I believe that you may be out of time to make an appeal to The UT, even if the FTT had erred in law.

You are supposed to request an appeal to The UT one month after receiving the tribunal's statement of reasons.

You would need to gain professional advice on this.

See : Appealing to The Upper Tier, DR UK Factsheet

As it is no longer possible to make new/fresh claims for DLA, you could consider making a claim for PIP.

You should be aware however, that the qualifying criteria for the mobility part of PIP can be more difficult to fulfill.

PIP Claims Guide. (2nd Link on page)

PIP information, including PIP Self Test

PIP Topic Thread in Spotlight Area

bro58

Hi Bro58

Thanks for your reply. Yes it has been some time but when I received the statement of reasons it was incomplete so it had to be resent. I am meeting all my deadlines. I have until 25/12/13 to appeal to the upper tribunal. CAB said I could not go any further but it keeps niggling at me, the fact that the decision seems to be based on inaccurate facts as the tribunal misunderstood the real story so to speak. Surely if this happens we should have some redress? As if they had the accurate facts the outcome could be different.

Also I think that it is wrong that the tribunal stated I said 10 minutes to walk to the shop when it shows in the record of proceedings that I said that it would take me 30 mins. They seem to have twisted this to compare with what the Emp said. Surely this is wrong is it not ? Are they allowed to make up their own facts? I'm so confused.

They did not address any effects of walking or the manner in which I walked or the fact that I told them after sliding along and comming to a stop I would not be able to walk for a couple of hours.

I don't know where to get advice as to whether these are considered errors or not and don't know whether to appeal. It just seems wrong to me that a tribunal can seem to make up their own facts that are contradicted in their own notes.

Thanks for your reply and if anyone knows if a misunderstanding of the accurate facts is an error of law please advise.
Thankyou
Tezzy

See Appealing to the Upper Tribunal against a First-tier Tribunal decision

Also www.benefitsandwork.co.uk/help-for-claim...ppeals-faq#Appeal100

Scroll down to 'What is an Error of Law'

From my experience of DLA Tribunals on which I sat for 10 years, it would appear from what you state, that the Tribunal did make an error(s) of law.

However, as Gordon has stated in his post, you really need 'face to face' advice from a welfare rights/benefits adviser with wide experience of DLA First-tier Tribunals and Upper Tribunals.

Just wanted to say Thankyou for all your replies. I'll update as and when

Tezzy