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Premission granted for appeal to the Upper Tribunal
- Tony
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1 month 3 weeks ago #295074 by Tony
Premission granted for appeal to the Upper Tribunal was created by Tony
This permission was discretionary as the request was 'late'.
I feel I need to speak to a lawyer. I wondered if there were any suggestions as to who would be suitable?
The Judge of the Upper Tribunal was satisfied that it is arguable with a realistic prospect of success that the First-tier Tribunal erred in law in a way which was material.
[The First-tier Tribunal had 'found' that the claimant never leaves the house in the Decision notice (on the day and incidentally again a week later) and explained in the Reasons for the Decision (a couple of months later) that the claimant can only undertake 'unfamiliar' journies accompanied because the Claimant had gone out and had a panic attack when taking a short trip of a few hundred meters, one time, a couple of years previously in the relatively recent past. And so can.
And so I have case management directions I need to respond to. Where I'm inclined to choose (i).
The Respondent (the DWP) supports the appeal, (with regard to Regulation 7's 50% rule and their submission that the Tribunal made insufficient findings of fact in regard to the appellant's ability to follow the route of a familiar journey); and so I, as the Claimant's representative must request:
(i) say whether there is any objection to the case being dealt with in a short decision with limited reasons or;
(ii) [or do I invite the Judge of the Upper Tribunal] to re-make the decision under section 12(2) of the Tribunals, Courts and Enforcement Act 2007, set out the terms of the proposed decision.
I feel I need to speak to a lawyer. I wondered if there were any suggestions as to who would be suitable?
The Judge of the Upper Tribunal was satisfied that it is arguable with a realistic prospect of success that the First-tier Tribunal erred in law in a way which was material.
[The First-tier Tribunal had 'found' that the claimant never leaves the house in the Decision notice (on the day and incidentally again a week later) and explained in the Reasons for the Decision (a couple of months later) that the claimant can only undertake 'unfamiliar' journies accompanied because the Claimant had gone out and had a panic attack when taking a short trip of a few hundred meters, one time, a couple of years previously in the relatively recent past. And so can.
And so I have case management directions I need to respond to. Where I'm inclined to choose (i).
The Respondent (the DWP) supports the appeal, (with regard to Regulation 7's 50% rule and their submission that the Tribunal made insufficient findings of fact in regard to the appellant's ability to follow the route of a familiar journey); and so I, as the Claimant's representative must request:
(i) say whether there is any objection to the case being dealt with in a short decision with limited reasons or;
(ii) [or do I invite the Judge of the Upper Tribunal] to re-make the decision under section 12(2) of the Tribunals, Courts and Enforcement Act 2007, set out the terms of the proposed decision.
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- LL26
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1 month 3 weeks ago #295077 by LL26
Nothing on this board constitutes legal advice - always consult a professional about specific problems
Replied by LL26 on topic Premission granted for appeal to the Upper Tribunal
Hi Tony,
Well done for getting this to UT.
Firstly to clarify a few things. (These may be things you already know but may not be apparent to other readers of this post)
Your appeal was presumably outside the 1 month period. This means that the UT will only consider the appeal if they believe there was good reason. Hence the discretion. However, it would appear that UT is happy to continue with the appeal.
Regulation 7 PIP Regs 2013 provides that you have to show the disability affects you on only the majority of days. This is vital for people who have fluctuating conditions. Fatigue is an obvious example. Sufferers might be ok to do a few tasks one day and then not the next, then perhaps OK for 2 days and then ill for another week etc. Reg 7 also allows 2 or more activity levels in the descriptor to be aggregated to reach the majority threshold.
From what I understand you are saying the FtT who noted you weren't able to come out for a hearing and on another time a week later, then awarded points for needing to be accompanied on unfamiliar journeys due to a panic attack on one day.
If I understand correctly you are arguing you can not go out at all due to overwhelming psychological distress, OR you need to be accompanied on both familiar as well as unfamiliar journeys.
Firstly there appears to be a contradiction- you can't go out...then FtT saying you could because you went out once a while back but had a panic attack. Clearly there is a confusion here, and this confusion/contradiction renders the decision unclear. (FtT has a legal duty to provide clear reasons.)
Secondly, you went out once on an unfamiliar journey and frankly it didn't go well!
All descriptors require 4 criteria to be fulfilled. All 4.
•Safely
•Repeatedly across rather whole day
•Within reasonable time
•to acceptable standard
Aside from any possible concerns that having a panic attack might take the journey to be longer than the reasonable time ( over twice that of non disabled person), and it might make you 'unsafe'- it will undoubtedly create an non acceptable standard.
Normally people won't panic on a journey, in the same way that healthy people shouldn't get breathless walking 100 yards. Pain, breathlessness, fatigue and panic etc would all suggest not being 'acceptable'.
Now...the FtT has made a finding that you only have a problem with unfamiliar journeys, based on a sample of one! The panic attack started at a few hundred metres. I think there is a very strong argument that (depending where you actually live) someone can normally see 100m or more down the road from where they live, which much be familiar, unless you never look out of the windows etc hence you are actually still on the familiar bit! Anothef reasonable why the FtT is wrong and has made an error of law!
Reg 7 determines that the FtT should look at the majority of days. Instead it has considered a snapshot approach which has been criticised by UT many times.
What happens/happened on all the other days. If I am correct, you haven't gone out at all? If so, why is this? Again if my assumption is correct you are avoiding going out because you don't like the feelings it causes, perhaps it makes you feel anxious, panicky, sweaty, out of breath, afraid...maybe it causes overwhelming psychological distress? After all life is difficult enough...why put yourself in a confronting situation- just stay at home. It' s just like people with arthritis who can't do up buttons, just wear easy fit pull on clothes. Problem Sorted!
But usually can still get points for PIP!
In the case of JT v SSWP [2020] UKUT 186 (AAC) Judge Rowland recognised that there was a vicious circle of avoiding with a similarly worded descriptor 9 - he was talking about overwhelming psychological distress preventing a person from engaging with others.
Para 32
"Distress that has the effect that a claimant cannot engage with other people, having regard to the factors mentioned in regulation 4(2A), must be regarded as being overwhelming..."
(Reg 4(2A) is the 4 criteria above.)
There has been a lot a case law comparing descriptor 9 with mobility descriptor 1. The wording of OPD is the same. I therfore think (and have argued at tribunal successfully) that para 32 of JT case could be reworded as follows
"Distress that has the effect that a claimant cannot follow the route of a familiar and/or unfamiliar journey having regard to the factors mentioned in regulation 4(2A), must be regarded as being overwhelming..."
Going forward
Clearly it depends of the evidence presented at your hearing - both oral and via documents.
If there is substantial evidence you could ask the UT to go and make a new decision based upon the evidence. (You could cite important things - eg if you have a record of proceedings (written or transcript of cd or within WSOR) and these confirm eg you said you have only been out once in 2 years and you said this 14 times, and it caused you to be very distressed etc then mention this to UT.
The UT judge will only make a new decision if he feels there is enough evidence.
In my experience even with strong evidence before FtT and hence UT it is very likely the UT will remit back to FtT for a new hearing with different panel.
However you can ask.(Nothing ventured, nothing gained!)
If the UT can deal with this it will doubtless cause less delay. I suspect there has already been some delay getting to a hearing and then getting the matter to the UT. No doubt more delay if it gets sent back to FtT for another hearing. Having a UT replacement decision albeit in a week or two must be better than waiting several months. But...UT may not agree as stated earlier.
As for the short reason decision, as a matter of practice I always ask for a full written reason from UT.
Often this helps the new FtT by providing guidance, it will help you to understand fully, and crucially since UT judgments are binding may then be helpful in a similar case next time.
Thus to recap...
I would select option 2- if there was sufficient evidence, and verify explain the evidence as set out above. Mention delays etc. Akso state tgst you note DWP agreed that Reg 7 had not been fully dealt with at FtT.
Ask for full written reasons.
Likelihood is case gets sent back to FtT anyway.
I hope this helps.
If you need any further advice please re-post and myself or another Mod will endeavour to help.
LL26
Well done for getting this to UT.
Firstly to clarify a few things. (These may be things you already know but may not be apparent to other readers of this post)
Your appeal was presumably outside the 1 month period. This means that the UT will only consider the appeal if they believe there was good reason. Hence the discretion. However, it would appear that UT is happy to continue with the appeal.
Regulation 7 PIP Regs 2013 provides that you have to show the disability affects you on only the majority of days. This is vital for people who have fluctuating conditions. Fatigue is an obvious example. Sufferers might be ok to do a few tasks one day and then not the next, then perhaps OK for 2 days and then ill for another week etc. Reg 7 also allows 2 or more activity levels in the descriptor to be aggregated to reach the majority threshold.
From what I understand you are saying the FtT who noted you weren't able to come out for a hearing and on another time a week later, then awarded points for needing to be accompanied on unfamiliar journeys due to a panic attack on one day.
If I understand correctly you are arguing you can not go out at all due to overwhelming psychological distress, OR you need to be accompanied on both familiar as well as unfamiliar journeys.
Firstly there appears to be a contradiction- you can't go out...then FtT saying you could because you went out once a while back but had a panic attack. Clearly there is a confusion here, and this confusion/contradiction renders the decision unclear. (FtT has a legal duty to provide clear reasons.)
Secondly, you went out once on an unfamiliar journey and frankly it didn't go well!
All descriptors require 4 criteria to be fulfilled. All 4.
•Safely
•Repeatedly across rather whole day
•Within reasonable time
•to acceptable standard
Aside from any possible concerns that having a panic attack might take the journey to be longer than the reasonable time ( over twice that of non disabled person), and it might make you 'unsafe'- it will undoubtedly create an non acceptable standard.
Normally people won't panic on a journey, in the same way that healthy people shouldn't get breathless walking 100 yards. Pain, breathlessness, fatigue and panic etc would all suggest not being 'acceptable'.
Now...the FtT has made a finding that you only have a problem with unfamiliar journeys, based on a sample of one! The panic attack started at a few hundred metres. I think there is a very strong argument that (depending where you actually live) someone can normally see 100m or more down the road from where they live, which much be familiar, unless you never look out of the windows etc hence you are actually still on the familiar bit! Anothef reasonable why the FtT is wrong and has made an error of law!
Reg 7 determines that the FtT should look at the majority of days. Instead it has considered a snapshot approach which has been criticised by UT many times.
What happens/happened on all the other days. If I am correct, you haven't gone out at all? If so, why is this? Again if my assumption is correct you are avoiding going out because you don't like the feelings it causes, perhaps it makes you feel anxious, panicky, sweaty, out of breath, afraid...maybe it causes overwhelming psychological distress? After all life is difficult enough...why put yourself in a confronting situation- just stay at home. It' s just like people with arthritis who can't do up buttons, just wear easy fit pull on clothes. Problem Sorted!
But usually can still get points for PIP!
In the case of JT v SSWP [2020] UKUT 186 (AAC) Judge Rowland recognised that there was a vicious circle of avoiding with a similarly worded descriptor 9 - he was talking about overwhelming psychological distress preventing a person from engaging with others.
Para 32
"Distress that has the effect that a claimant cannot engage with other people, having regard to the factors mentioned in regulation 4(2A), must be regarded as being overwhelming..."
(Reg 4(2A) is the 4 criteria above.)
There has been a lot a case law comparing descriptor 9 with mobility descriptor 1. The wording of OPD is the same. I therfore think (and have argued at tribunal successfully) that para 32 of JT case could be reworded as follows
"Distress that has the effect that a claimant cannot follow the route of a familiar and/or unfamiliar journey having regard to the factors mentioned in regulation 4(2A), must be regarded as being overwhelming..."
Going forward
Clearly it depends of the evidence presented at your hearing - both oral and via documents.
If there is substantial evidence you could ask the UT to go and make a new decision based upon the evidence. (You could cite important things - eg if you have a record of proceedings (written or transcript of cd or within WSOR) and these confirm eg you said you have only been out once in 2 years and you said this 14 times, and it caused you to be very distressed etc then mention this to UT.
The UT judge will only make a new decision if he feels there is enough evidence.
In my experience even with strong evidence before FtT and hence UT it is very likely the UT will remit back to FtT for a new hearing with different panel.
However you can ask.(Nothing ventured, nothing gained!)
If the UT can deal with this it will doubtless cause less delay. I suspect there has already been some delay getting to a hearing and then getting the matter to the UT. No doubt more delay if it gets sent back to FtT for another hearing. Having a UT replacement decision albeit in a week or two must be better than waiting several months. But...UT may not agree as stated earlier.
As for the short reason decision, as a matter of practice I always ask for a full written reason from UT.
Often this helps the new FtT by providing guidance, it will help you to understand fully, and crucially since UT judgments are binding may then be helpful in a similar case next time.
Thus to recap...
I would select option 2- if there was sufficient evidence, and verify explain the evidence as set out above. Mention delays etc. Akso state tgst you note DWP agreed that Reg 7 had not been fully dealt with at FtT.
Ask for full written reasons.
Likelihood is case gets sent back to FtT anyway.
I hope this helps.
If you need any further advice please re-post and myself or another Mod will endeavour to help.
LL26
Nothing on this board constitutes legal advice - always consult a professional about specific problems
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