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Thread: LEAP Administrative PIP exercise

  1. #11
    Senior Member nukecad's Avatar
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    I wouldn't comment on the dates of your tribunal rulings, that's for someone with more legal knowledge.
    It would have to be between when the DWP changed the descriptor/HCP guidance and when they had to change it back again following those rulings.

    There should be no reason why the tribunal shouldn't allow a 4 year old challenge if it was official error, which MH and RJ both were.
    (The IB-ESA reviews were for an official error 10 to 12 years old, most were caught/covered by a LEAP excercise but some had to ask for a specific review).

    I'd try putting your postcode in here to see if there is someone local to you who may be able to help: https://advicelocal.uk/find-an-adviser

    If there is no one suitable local, or if you want to go for bigger guns, then you might try contacting a national law firm - Leigh Day are well known for championing benefit issues, in fact they are one of the major players behind Judicial Reviews.
    I've contacted Leigh Day myself in the past, they are quite friendly.

    I know that a guy called Ryan Bradshaw is currently working on this PIP LEAP for Leigh Day, you may be interested in this Rightsnet thread which has his contact details.
    Although as a claimant, not an advisor, you may want to contact them as a general enquiry rather than going to Ryan directly he is asking there for 'service user' details so is interested in contacting claimants. Your choice. (But personally I'd go for a direct contact with a succinctly worded email).
    If anyone has a service user who has had their review result recently, it is negative and you think it is wrong we have angles to work beyond simply challenging the review outcome here.

    We need to challenge this appalling attempt to circumvent the law or it will continue to happen time and time again.
    https://www.rightsnet.org.uk/forums/viewthread/17103/

    As you've probably noticed I have little regard for what a DWP phone jockey might tell anyone.
    They are told/trained to never admit that they 'don't know' so will make a guess, tell you something else, or even just make things up when they don't know the correct answer.
    And the 'first line' PIP enquiry phone jockeys don't even work for the DWP - they are contracted out. (I think it's Capita, who coincidentaly also do assessments).
    Last edited by nukecad; 17-04-21 at 08:19.
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  2. #12
    I did see that rightsnet thread, in fact that's the reason I knew they had started up again lol

  3. #13
    I had this reply from an organisation that helps with benefit issues:-

    For the purpose of the exercise, the MH case was implemented into the tribunal service as was an Upper Tier decision and thus bound the lower courts from the day it went to court, so any hearings in 2017 would have included consideration of this. In fact, we ourselves were using the caselaw for both of these cases a few days after each was decided

    Sadly this is a policy with DWP and there is little you can do.

    With regards to appealing the decision through the court, this route would only be open if the timelines were adhered to, you have 1 months to ask for written reasons after the hearing, obviously this was 4 years ago so you would be out of time.


    That's why I'm asking, the 1st part in particular seems bizarre to me.

  4. #14
    Senior Member nukecad's Avatar
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    The first part is simply saying that as soon as the rulings were made they became law, so any PIP decisions made after the ruling date(s) should have considered them, and any First Tier (or Upper Tier) tribunal held after the date(s) should also have considered them as part of their judgment.
    So you can't use the rulings to challenge decisions made after the dates of the rulings.

    You can only challenge decisions made between the DWP changing the criteria and the courts ruling those changes were unlawful.

    The last bit is only partly correct.
    You normally have 1 month to start appeal proceedings, but that can sometimes be extended up to 13 months for a 'late appeal'.

    BUT- You are not at this stage appealing to the tribunal court against the 4 year old decision, you are asking the DWP for a 'revision' of that old decision in light of the MH and RJ rulings (or whichever one of the two applies).

    The LEAP excercise is all about 'revision' of the decisions by the DWP, the tribunals are not involved unless you then want to challenge that revision.

    For 'official error' where the DWP got the law wrong you can ask for an 'any time revision', ie. there is no time limit.
    The DWP should then look at your case again and make a new/revised decision, revising (or not) the old decision and re-applying it from the time the old decision was made.

    Whatever the outcome of that 'any time revision', or if they refuse to do one, you then have a month to ask for MR of that new decision and then appeal if necessary.
    https://www.citizensadvice.org.uk/be...n-by-revision/

    It's probably best to say 'Any time Revision' rather than saying 'appeal' when talking about this to the DWP or advisors.
    That way it's clearer what you are asking for.

    If I was you I'd contact Leigh Day and ask for their opinion/help, they know what it's all about.
    https://www.leighday.co.uk/contact-us/
    Last edited by nukecad; 18-04-21 at 11:49.
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  5. #15
    Yes I might just do that, it seems it becomes more complex the more I look at it! Thanks for your thoughts as always

  6. #16
    Senior Member nukecad's Avatar
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    As you have been looking at it on Rightsnet you may be interested in this from today:
    https://www.rightsnet.org.uk/forums/...d/16532/#81729
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  7. #17
    I submitted an appeal to the Tribunal Service at the start of the week so just waiting for that to process at the moment. I did contact Leigh Day but they declined to help. Doesn't matter really if I am granted a tribunal hearing, I'd only be needing help if for whatever reason I can't appeal.

  8. #18
    Senior Member nukecad's Avatar
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    As said above, unless you have already asked for and had a review, or been refused a review then you are not at the stage of appealing to the tribunal yet.

    Unless I'm misunderstanding what you have said then you should ask the DWP for a any time review outside of the LEAP; and get the results of that any time review before going to the tribunal.

    The only thing you seem to have at the moment is a decision not to include you in the LEAP - which is correct because of the dates.
    If you appeal that then the tribunal can only agree with the DWP that you are outside of the range of dates to be included in the LEAP.

    The tribunal can't direct the DWP to include you in the LEAP.
    If they are in the mood could possibly advise (not direct) the DWP to do an any time review of your case outside of LEAP.
    And you can ask for that any time revision yourself anyway, without going to tribunal.

    You need an actual any time review decision, or a refusal to do an any time review, to be able to appeal that review decision.
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  9. #19
    Here is the letter I got on 14th April:-

    In reference to your request for immediate review on your Personal Independence Payment decision under the upper tribunal judgements. Below is the information on how you can proceed to have the decision of 2/8/2016 looked at which was decided at appeal on 27 June 2017 (which is actually incorrect this was the Feb tribunal). We are unable to review the decision effective from 2 August 2016 as this decision was made at tribunal.

    Where previous decisions were made by First Tier Tribunal the Department does not have the legal powers to override tribunal decisions. We are unable to review these cases as part of this exercise. It is decisions made by the Department that are being reviewed as part of the exercise. We have looked at your case and there are no DWP decisions that need reviewing. We are unable to review the period decided by Tribunal.

    For that to happen you will need to seek 'leave to appeal' to the Upper Tribunal. There are set timescales for doing this, although the Tribunal Service can consider an out-of-time appeal. This is entirely a matter for the Tribunal Service, so it cannot be guaranteed that they will consider the application.


    It then goes on to say how to appeal but curiously it is not signed off with any name or department, it simply says Office Manager, so in that respect I don't know how valid this letter is.
    Last edited by grrrrrowl; 25-04-21 at 09:44.

  10. #20
    Senior Member nukecad's Avatar
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    I see.

    The DWP have refused to do an any time review.
    You could appeal that decision to refuse a review. But that would be an appeal to the First Tier Tribunal about the refusal to review your case, and if the FTT found in your favour they could only tell the DWP to do a review anyway. Which leaves you back at square one.
    The FTT couldn't change the FTT decision made in 2017.

    However the part about the Upper Tier Tribunal is an interesting indication of how the DWP are seeing things.

    They are saying that you should go to Upper Tier Tribunal to get the 2017 First Tier Tribunal decision overturned. The UTT can overturn the 2017 FTT decision.
    The legal grounds for that would seem to be that the First Tier Tribunal at the time may have been working to rules that were later found to be unlawful by MH/RJ so they may have technically made an error in law.
    I'm not a lawyer so am not sure how/if that would work as the FTT at the time had no way of knowing that MH/JR would come along later.

    That UTT route actually cuts out the steps of a new DWP review and then a possible new appeal to the FTT, jumping those and going straight to UTT about the 2017 FTT ruling.

    I've not heard of anyone going that route but it should work if the UTT accepts (if they can accept) that the FTT did, unknowingly, make an error.

    So as it stands the DWP are simply denying that they have a responsibility to review your case; and have basically said "Tell it to the Judge".

    It will be interesting to see what the UTT make of this. (I assume it is the UTT that you have now appealed to).

    ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
    TBH though this is basically just the DWP being awkward, again - we saw the same with PIP extensions.
    Legally there is nothing whatsoever to stop the DWP reviewing and increasing (or extending) an award that was made at tribunal, that could happen at any time with changes of circumstances and deteriorating conditions, - but the DWP can't decrease (or shorten) a tribunal award.

    When there were complaints about the extensions they did if only for a while extend PIP awards that had been made at tribunal, proving that they can indeed increase/extend awards that were made at tribunal if they want to.

    The DWP are increasingly using 'it was a tribunal award so we can't change it' as an excuse not to do anything.
    It seems to be simply pique on the DWP's part because they don't like how often the courts tell them that they are wrong, but in cases like yours it could also actually be the best way to go.
    Last edited by nukecad; 25-04-21 at 11:58.
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