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Thread: Advice needed please.

  1. #1
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    Advice needed please.

    Hi..I do appreciate that every single case can be different in its own way,but what are the real chances of an Appeal Tribunal ruling in favour of the DWP and actually reducing a person's monies upon appeal?..

    I have an appeal hearing coming up early next month and i am worried as to what to do.Here are my set of circumstances regarding this PIP claim..

    1.My last claim ran out in January of this year...I was receiving Enhanced Daily Living Allowance and Zero Mobility Allowance at that time.

    2.The above award was set by a Tribunal some 3 years ago or so...Incidentally,on the morning of that Tribunal i was phoned by the Court and told not to attend the Tribunal as they had looked at my case and decided that i was entitled to an upgrade to Enhanced Daily Living Allowance (i was happy with that.)

    3.This time round (despite things having deteriorated markedly and my having contracted a new life changing illness) i was awarded the lower rate of Daily Living Allowance and Zero Mobility allowance (zero points).

    4.I put in a MR and strangely enough,i was awarded 10 points for Mobility but i still remained on the Lower Rate for Daily Living Allowance (10 points).this resulted in an increase in monies..

    5.I appealed this decision on the basis that i should definitely be on Enhanced Daily Living Allowance (as this was previously set by the Tribunal,and since then i have deteriorated markedly)..I also went on to say,maybe foolishly,that i should be getting less than 10 pts for Mobility(was trying to be reasonable).

    6.i have been told by a CAB advisor that i should just accept what i have been offered as people can and do get marked down at a Tribunal.

    7.Twice in the past the CAB have told me not to not to go to a Tribunal but twice i have won.

    ----------------------------------------------------------------------------------------------------------------------

    The question i ask is this...How common is total defeat (loss of everything) at a Tribunal for somebody with a similar set of circumstances to mine??..Has anybody out there gone through something similar to me and lost everything?

    Thanks.
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  2. #2
    Senior Member nukecad's Avatar
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    I think that points 6 & 7 say it for you.

    (Many people have lost trust in CAB since they took DWP money for 'Help to Claim UC'. I have noticed a deterioration in some of the advice they give now, I think their training has changed.
    It's a shame because it's National CAB who took that money, not Local CAB, and many of their front line workers do still give good advice).

    As for a tribunal reducing an award:

    Yes there is always a chance that the tribunal could give a lower award than the DWP have already given you.

    But it's pretty rare for that to happen, and if they think their findings may mean reduced points / a reduced award then previous case law makes it clear that they must warn you beforehand so that you can give more evidence to address their concerns. (or withdraw the appeal, even though they don't usually say that specifically they may hint heavily).
    If they don't warn you and then reduce your award case law says that's an error in law and you can appeal it to the UTT.

    https://pipinfo.net/issues/less-favourable-awards
    Upper Tribunal judges have repeatedly drawn attention to the pitfalls of tribunals making decisions which are less favourable to a claimant than the decision under appeal. In [2015] UKUT 155 (AAC) a tribunal’s failure to invite a claimant to put her case on issues it later relied on to reduce her award, amounted to an error of law. While there is no protected right to points awarded by a decision-maker, the First-tier Tribunal should nevertheless advise the appellant if it has misgivings about the points in order that he or she has the opportunity to make his or her case [2015] UKUT 275 (AAC).
    We have seen discussion of that warning being given on this forum, but it's a few years back and I can't find it now- like I say it's pretty rare.
    EDIT- See post #6
    Last edited by nukecad; 15-07-21 at 11:43.
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  3. #3
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    Quote Originally Posted by nukecad View Post
    I think that points 6 & 7 say it for you.

    (Many people have lost trust in CAB since they took DWP money for 'Help to Claim UC'. I have noticed a deterioration in some of the advice they give now, I think their training has changed.
    It's a shame because it's National CAB who took that money, not Local CAB, and many of their front line workers do still give good advice).

    As for a tribunal reducing an award:

    Yes there is always a chance that the tribunal could give a lower award than the DWP have already given you.

    But it's pretty rare for that to happen, and if they think their findings may mean reduced points / a reduced award then previous case law makes it clear that they must warn you beforehand so that you can give more evidence to address their concerns. (or withdraw the appeal, even though they don't usually say that specifically they may hint heavily).
    If they don't warn you and then reduce your award case law says that's an error in law and you can appeal it to the UTT.

    https://pipinfo.net/issues/less-favourable-awards


    We have seen discussion of that warning being given on this forum, but it's a few years back and I can't find it now- like I say it's pretty rare.
    Thanks for the reply,Nukecad.I will be apx £20 a week better off if i am on Higher Rate Daily Living Allowance.You say that the Tribunal may warn me beforehand about a reduced rate in payments-will they have looked at my papers already??..

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    Hope this isn't too controversial,but i feel that the CAB are now mired in Political Ideaology.Their default setting always seems to be that of following "The Path Of Least Resistance"...I also see this in other walks of life-for example, teachers who deal with bullying by sending the bullied kids away to other schools,while the bullies themselves get all the help they need....and the police,who seem to have adopted a culture of appeasement these days.

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    PS,i have no doubt whatsover that the DWP will argue that they have already raised my monies once after considering my MR...Will the Tribunal be taken in by this argument??..If they do argue this point,i feel that it is a bit of a dirty tactic to pull to be honest.

    Cheers.

  6. #6
    Senior Member nukecad's Avatar
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    Quote Originally Posted by jw68 View Post
    You say that the Tribunal may warn me beforehand about a reduced rate in payments-will they have looked at my papers already??..
    Yes, that's how they will know that there may be something that should be reconsidered and that reconsideration means it may be reduced.

    Remember that they have to/should reconsider everything that the evidence concerns, even if it's not actually been raised at appeal by you or the DWP.

    It took some searching (about an hour but I wanted to find it for my own reference) but I have now found the post where a member on here got such a warning from the tribunal.
    It's from way back in 2015, which just goes to show how rarely it happens:

    https://youreable.livingmadeeasy.org...-and-withdrawl

    My rep was called in 10 minutes before the start of the hearing was given fair warning that should we proceed, my current entitlement of lower rate mobility would be at risk, due to the fact that I have no medical supporting evidence.
    I was given the opportunity to withdraw my appeal before stepping foot in the tribunal room.

    Given that a lenient judge was giving us fair warning, we decided that the lack of medical evidence would go strongly against me and I could end up with nothing, so I withdrew. The welfare officer told me that in all the cases he has been to, no one has walked into a tribunal after having been given fair warning and come out better than they went in. The likelihood was, and is, that if you are given a warning before tribunal, you will likely lose points.
    Last edited by nukecad; 15-07-21 at 11:53.
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    Thanks nukecad..I will bear all that in mind if my allowance is lost at Tribunal...which incidentally,is being conducted over the phone...does that put claimants at a disadvantage at all??..

  8. #8
    Senior Member nukecad's Avatar
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    Sorry I don't know the procedures for tribunals held by telephone.

    I should imagine it's very similar though, espicially if it's a multi'person call.
    It may be different if it's one to one with a judge, which I believe is also done now.

    They are fairly new and I don't think we"ve had one on here yet.
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    Quote Originally Posted by nukecad View Post
    Sorry I don't know the procedures for tribunals held by telephone.

    I should imagine it's very similar though, espicially if it's a multi'person call.
    It may be different if it's one to one with a judge, which I believe is also done now.

    They are fairly new and I don't think we"ve had one on here yet.
    Thanks.One last question,nuke..The CAB advisor seems to think that my admitting that i maybe should not be receiving the Mobility Component of PIP weighs heavily against me,and he has now decided that he cannot help me any more.Hence,he has told me to drop my appeal..Does what he is saying make sense to you please?..He seems to think that there is a slim possibility i may lose everything,and it may not be worth the risk appealing just for another £22 a week or so.

    I know its possibly the wrong thing to do,but i just wanted to appear that i was not being greedy and after every single penny possible.I was kind of bargaining with them i guess,but maybe i can be forgiven for acting that way,after going up from 0 pts to 10pts (for Mobility) in one fell swoop,yet at the same time not getting the 12pts needed (and well deserved IMO) for Daily Living !

    PS,will the TRibunal take note that my advisor has dropped out of the skirmish..and hold that against me?

    Cheers.
    Last edited by jw68; 18-07-21 at 08:35.

  10. #10
    Senior Member nukecad's Avatar
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    I don't know just what's going on at CAB these days, they seem to be acting pretty strangely at times?
    (Maybe he's simply been told they don't have the time or money and to make some excuse? but see the possible outcomes below)

    There is no reason why you shouldn't say that you don't think that you should have qualified for Mobility.

    That's your opinion, many people think they wouldn't/shouldn't qualify for something when in fact they do.

    (An example of that was the cajoling we had to do on here to get some to go through with the IR-ESA cockup review - quite a few who thought they didn't qualify and weren't going to bother ended up with over £10,000 in backpay apiece; once we'd persuaded them to do it).

    The tribunal will be looking at it and deciding for themselves, no matter what you or the DWP think.

    As you know there is always a chance of losing the lot, but it's slim and you usually get a warning if it might happen.

    I doubt the tribunal will take note of him dropping out, unless maybe he was listed as going to court with you?
    Many people get advice but still go to court on their own.
    (And TBH they've probably also noticed CAB being strange these days).

    What you need to concentrate on is where you think you should have got the extra 2 points needed for Enhanced Daily Living.
    ie. Where did the previous tribunal find/award the points that gave you Enhanced DL? What descriptor was it for?
    You need to convince this tribunal that you should still have those points for that descriptor.

    I'm sure that you have worked out the possible outcomes, but to clarify just what you are arguing for:

    £ 83.70 Std DL + Std Mob - The award that you currently have from the DWP.
    £ 86.90 En DL only - The award that you think you should have.

    £113.30 En DL + Std Mob - If the tribunal thinks so.
    £ 60.00 Std DL only - If the tribunal doesn't increase DL and takes away Std Mob. (They would have to knock 3 points off your current 10 for Mobility).

    £122.55 En DL + En Mob - If the tribunal has a brainstorm and gives you the lot.
    £ 0.00 No PIP - If the tribunal has a brainstorm and takes everything away. (They would have to knock 3 points each off your current 10 for each)

    So if you get what you think you should have, Enhanced DL and no Mobility, then you are arguing for a £3.20/week increase.

    You could get more, but you could also end up with less, and I'm guessing that the CAB guy sees that as too big a risk for just £3.20/week.

    Personally I think you'll probably either get the same as now, or Enhanced DL with Std Mobility.
    However any of the other options are possible, but they should give you that warning if they are thinking of reducing what you currently have, so you can withdraw and walk away.
    Last edited by nukecad; 18-07-21 at 10:50.
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