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PIP Appeal
- Augustus
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10 years 4 months ago - 10 years 4 months ago #127660 by Augustus
PIP Appeal was created by Augustus
I would be grateful for the panel’s feedback on a concern I have about a PIP appeal already submitted.
I was awarded higher rate general and lower rate mobility. I have appealed against the latter. The descriptor in dispute is the vexed one: 11D
The DWP say I have no diagnosed cognitive disorder, therefore this doesn’t apply, even though they agree otherwise that I can’t travel alone.
I my appeal I argued that the effects of my physical symptoms make them the equivalent in effect of such disorder as they inhibit my ability to react out of doors alone.
I also gave the tribunal evidence of a recent practical example of this.
Do you think the rules on cognitive issues for 11D are so clear that this appeal is on shaky ground, and on the balance of probabilities, unlikely to succeed?
Also, are the rules that state that when a tribunal looks at the entire claim on appeal, they are required to warn a claimant if their decision may make them worse off, so that they have an opportunity to withdraw the appeal before such a decision is taken, clearcut?
If not, maybe I should withdraw the appeal.
If they are clearcut, can you please give me the regulation reference which states this – just in case of administrative error or oversight/
Thank you
A
I was awarded higher rate general and lower rate mobility. I have appealed against the latter. The descriptor in dispute is the vexed one: 11D
The DWP say I have no diagnosed cognitive disorder, therefore this doesn’t apply, even though they agree otherwise that I can’t travel alone.
I my appeal I argued that the effects of my physical symptoms make them the equivalent in effect of such disorder as they inhibit my ability to react out of doors alone.
I also gave the tribunal evidence of a recent practical example of this.
Do you think the rules on cognitive issues for 11D are so clear that this appeal is on shaky ground, and on the balance of probabilities, unlikely to succeed?
Also, are the rules that state that when a tribunal looks at the entire claim on appeal, they are required to warn a claimant if their decision may make them worse off, so that they have an opportunity to withdraw the appeal before such a decision is taken, clearcut?
If not, maybe I should withdraw the appeal.
If they are clearcut, can you please give me the regulation reference which states this – just in case of administrative error or oversight/
Thank you
A
Last edit: 10 years 4 months ago by . Reason: Tick.
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10 years 4 months ago - 10 years 4 months ago #127673 by Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gordon on topic PIP Appeal
Augustus
There are two aspects to the operation of the PIP Descriptors, the Descriptor itself which is defined in law and guidance that is issued by the DWP to assessors as to how they view the Descriptors as operating, this is not part of the legal definition. A tribunal must take the legislative definition for their primary understanding of how the Descriptor should operate but they will look at the DWP guidance for additional information.
The Descriptor in questions states
"Cannot follow the route of an unfamiliar journey without another person, assistance dog or
orientation aid."
As you can see there is no reference to the test applying to persons with cognitive issues, certainly the reference to "assistance dog" implies that a claimant can meet the requirement due to a physical problem (e.g. blindness), however, the guidance is quite clear that with the exception of those with sight problems the test is intended for those with cognitive problems, it also specifically states that issues related to the physical execution of the task (e.g. walking) are not included.
All you can do is argue your case, I cannot offer a definitive as to whether you will be successful or not, but can say that where there is a lack of clarity, the panel will tend to follow the available guidance, relying on the Upper Tier Tribunal to provide more detailed guidance.
It is a legal requirement for the Judge of the panel to warn a claimant if, at the start of the hearing they do not believe that the current award would be maintained if the hearing was to continue, this allows the claimant to withdraw the appeal. I do not have a legal reference for you, but will try and find one if I have time.
However, this does not prevent the panel reducing or removing the current award after the appeal is heard.As far as I am aware there is no obligation for them to issue any further warning or to offer the claimant the opportunity to withdraw the appeal during the hearing, unfortunately, the law surrounding Tribunal procedure is vast and is not an area that we normally deal with on the forum.
Gordon
There are two aspects to the operation of the PIP Descriptors, the Descriptor itself which is defined in law and guidance that is issued by the DWP to assessors as to how they view the Descriptors as operating, this is not part of the legal definition. A tribunal must take the legislative definition for their primary understanding of how the Descriptor should operate but they will look at the DWP guidance for additional information.
The Descriptor in questions states
"Cannot follow the route of an unfamiliar journey without another person, assistance dog or
orientation aid."
As you can see there is no reference to the test applying to persons with cognitive issues, certainly the reference to "assistance dog" implies that a claimant can meet the requirement due to a physical problem (e.g. blindness), however, the guidance is quite clear that with the exception of those with sight problems the test is intended for those with cognitive problems, it also specifically states that issues related to the physical execution of the task (e.g. walking) are not included.
All you can do is argue your case, I cannot offer a definitive as to whether you will be successful or not, but can say that where there is a lack of clarity, the panel will tend to follow the available guidance, relying on the Upper Tier Tribunal to provide more detailed guidance.
It is a legal requirement for the Judge of the panel to warn a claimant if, at the start of the hearing they do not believe that the current award would be maintained if the hearing was to continue, this allows the claimant to withdraw the appeal. I do not have a legal reference for you, but will try and find one if I have time.
However, this does not prevent the panel reducing or removing the current award after the appeal is heard.
Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Last edit: 10 years 4 months ago by Gordon.
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10 years 4 months ago #127679 by Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by Gordon on topic PIP Appeal
Augustus
One of my colleagues had the reference to hand (thanks Bro)
The "Warning" with regards to reducing or stopping a current award prior to a Tribunal Hearing is covered at "61A Warning" Page 131 of : The Bench Book.
As found about half way down this page :
www.benefitsandwork.co.uk/help-for-claimants/dla/#dlaappeals
This is an old version of the Bench book, the current one is not available in the Public Domain, but the rule should still apply.
To revise my previous post;
A warning can be given during the hearing and the claimant should be allowed the opportunity to withdraw their appeal, however, it is still possible if the hearing is completed for the current award to be reduced or removed if the panel decide that the evidence presented does not support that award.
Gordon
One of my colleagues had the reference to hand (thanks Bro)
The "Warning" with regards to reducing or stopping a current award prior to a Tribunal Hearing is covered at "61A Warning" Page 131 of : The Bench Book.
As found about half way down this page :
www.benefitsandwork.co.uk/help-for-claimants/dla/#dlaappeals
This is an old version of the Bench book, the current one is not available in the Public Domain, but the rule should still apply.
To revise my previous post;
A warning can be given during the hearing and the claimant should be allowed the opportunity to withdraw their appeal, however, it is still possible if the hearing is completed for the current award to be reduced or removed if the panel decide that the evidence presented does not support that award.
Gordon
Nothing on this board constitutes legal advice - always consult a professional about specific problems
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