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PIP appeal about mobility 1
- cyclops
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7 years 3 months ago #205707 by cyclops
PIP appeal about mobility 1 was created by cyclops
I have an appeal pending concerning PIP and one of the issues that has arose is whether or not the DWP has applied the law correctly to the the mobility 1 activity(4 points). The issue I am raising is whether or not to apply to the Tribunal for directions under Rule 5 and tell the DWP to clarify the law they applied to my case. Second whether or not to ask the Tribunal to treat the law to be applied as a preliminary issue to be dealt with first. I have asked the DWP whether they are going to review my case before the hearing and they have said no, it will take months or years for any review to take place. The conclusion is that they won't cooperate over the enormous mess they have made and leave it up to the tribunal to sort my case out and let the presenting officer poke holes in my case at the hearing. I am not asking for information concerning recent events which you don't have. I am asking for help with the procedure. I have tried getting help but the last adviser did not seem to know what the tribunal rules were, draw your own conclusion about his capability. There is only one.
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7 years 3 months ago #205735 by Gordon
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Replied by Gordon on topic PIP appeal about mobility 1
cyclops
I would have expected the DWP to have listed the applicable law as part of their submission.
If the Decision was made on or after 16 March 2017 then it almost certainly used the amended definition for Descriptors (c), (d) and (f) of the Going Out activity.
Here is your problem, as of today (1/2/18), the law that is in place still includes the amendment to the Going Out activity that were made in March of last year, although this has been declared illegal (my choice of words), a Tribunal is required to use the law in force at the time.
So if the matter is not urgent, you hearing is not due, then I would wait until the matter becomes clearer.
As a separate but related topic, If you are relying on the definitions reverting to the old wording then please make sure that you have shown that you meet the criteria, this matter was debated on the forum for some considerable time on the forum before the law was changed and I would say at best that only 1 in 10 of members who thought they met the criteria for "following a route", actually did based on what they were posting.
Gordon
I would have expected the DWP to have listed the applicable law as part of their submission.
If the Decision was made on or after 16 March 2017 then it almost certainly used the amended definition for Descriptors (c), (d) and (f) of the Going Out activity.
Here is your problem, as of today (1/2/18), the law that is in place still includes the amendment to the Going Out activity that were made in March of last year, although this has been declared illegal (my choice of words), a Tribunal is required to use the law in force at the time.
So if the matter is not urgent, you hearing is not due, then I would wait until the matter becomes clearer.
As a separate but related topic, If you are relying on the definitions reverting to the old wording then please make sure that you have shown that you meet the criteria, this matter was debated on the forum for some considerable time on the forum before the law was changed and I would say at best that only 1 in 10 of members who thought they met the criteria for "following a route", actually did based on what they were posting.
Gordon
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7 years 3 months ago #205782 by cyclops
Replied by cyclops on topic PIP appeal about mobility 1
Dear Gordon the only reference to the law in the DWP papers was the PIP Transitional Reg 17(1)b. According to the papers my claim was made in November 2017, a disallowance made in January which was revised and a mandatory review issued in April giving high rate care but no mobility in April 2017. I applied for second MR that was turned down The effective date of decision given in the papers is early February 2017 before the amendment regs came into force.
I don't whether the March 2017 amendment regulations are still enforceable, from what the DWP have said Probably not. This is why I am pondering going to the tribunal for directions on that point and asking the DWP for a submission on which law they have applied to my case. The issue could be dealt with as a preliminary one. This will delay the hearing until things become clearer. I am hoping the tribunal will sort it out.
I don't whether the March 2017 amendment regulations are still enforceable, from what the DWP have said Probably not. This is why I am pondering going to the tribunal for directions on that point and asking the DWP for a submission on which law they have applied to my case. The issue could be dealt with as a preliminary one. This will delay the hearing until things become clearer. I am hoping the tribunal will sort it out.
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7 years 3 months ago #205801 by Gordon
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Replied by Gordon on topic PIP appeal about mobility 1
cyclops
I assume you mean your claim was made in November 2016 and the Decision was made in January 2017.
This being the case then the amended Descriptors do not apply as they have no force prior to 16 March 2017.
The problem with the Decision is that although the UTT Decision is dated 28 November 2016 it was not actually published until sometime in February 2017, and so could not have been applied to your Decision by thee DWP.
Also, even after the Decision was published the DWP did not issue any new guidance to DMs so the guidance that they issued early in 2016, that the effects of physiological distress should not be considered for Descriptors (c), (d) and (e) would still be in effect.
So to summarise, if I have not already confused you already.
The DWP Decision would have been based on the Descriptors as originally drafted but using their guidance that physiological distress should not be considered.
The UTT Decision pre-dates your Decision and should have force.
However, until the update is repealed, the DWP can argue that whilst you should have had a higher award, assuming that you can show that you actually meet the criteria for one, from the date of the Decision, but that you would not qualify after 16 March.
Once the update is repealed your arguments will become a lot easier.
Gordon
I assume you mean your claim was made in November 2016 and the Decision was made in January 2017.
This being the case then the amended Descriptors do not apply as they have no force prior to 16 March 2017.
The problem with the Decision is that although the UTT Decision is dated 28 November 2016 it was not actually published until sometime in February 2017, and so could not have been applied to your Decision by thee DWP.
Also, even after the Decision was published the DWP did not issue any new guidance to DMs so the guidance that they issued early in 2016, that the effects of physiological distress should not be considered for Descriptors (c), (d) and (e) would still be in effect.
So to summarise, if I have not already confused you already.
The DWP Decision would have been based on the Descriptors as originally drafted but using their guidance that physiological distress should not be considered.
The UTT Decision pre-dates your Decision and should have force.
However, until the update is repealed, the DWP can argue that whilst you should have had a higher award, assuming that you can show that you actually meet the criteria for one, from the date of the Decision, but that you would not qualify after 16 March.
Once the update is repealed your arguments will become a lot easier.
Gordon
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7 years 3 months ago #205814 by cyclops
Replied by cyclops on topic PIP appeal about mobility 1
I have just read the judgement in RF; the judge said in para 64; ...and I quash para 2(4) of the Regulations. One of the grounds was that the SS exceeded his powers (ultra vires the statute) in passing Regulation 2(4). In that case the paragraph has never been in force. The implication is that the previous policy was too.
If anything I am even more baffled about what to do; the appeal hearing date will be set before this mess is sorted out, I am not really up to attending the hearing let alone arguing a point of administrative law and if I could I think it unwise to show your brains before a tribunal. Lawyers hate being told what their mistakes are even more than the DWP does, it threatens their mystique. I can't find anyone to represent me, first time I was stood up by one agency, one enterprising gentleman wanted £600 to represent me, or just £600 more like. I am even more suspicious of the DWPs intentions, I suspect that they are going to let chaos reign and then change the legislation.
If anything I am even more baffled about what to do; the appeal hearing date will be set before this mess is sorted out, I am not really up to attending the hearing let alone arguing a point of administrative law and if I could I think it unwise to show your brains before a tribunal. Lawyers hate being told what their mistakes are even more than the DWP does, it threatens their mystique. I can't find anyone to represent me, first time I was stood up by one agency, one enterprising gentleman wanted £600 to represent me, or just £600 more like. I am even more suspicious of the DWPs intentions, I suspect that they are going to let chaos reign and then change the legislation.
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7 years 3 months ago #205840 by Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gordon on topic PIP appeal about mobility 1
cyclops
It strikes me that you might be better looking forward with your appeal that back.
Does it actually matter on what basis the DWP made their Decision? The Appeal pabel are not looking at whether the DWP Decision was correct they are making their own Decision based on the evidence before them.
You should be able to easily argue that the the three Judge Decision on psycoligical Distress is applicable to your Decision, so you can spend your time arguing the you meet Descriptor (f). which I assume is the basis of your appeal.
Gordon
It strikes me that you might be better looking forward with your appeal that back.
Does it actually matter on what basis the DWP made their Decision? The Appeal pabel are not looking at whether the DWP Decision was correct they are making their own Decision based on the evidence before them.
You should be able to easily argue that the the three Judge Decision on psycoligical Distress is applicable to your Decision, so you can spend your time arguing the you meet Descriptor (f). which I assume is the basis of your appeal.
Gordon
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