Challenging a PIP tribunal decision

It took the best part of 2 years but Mary eventually got the right award. At the claim stage, she had 8 points and 4 for mobility. The tribunal in Southampton allowed her appeal but Mary still had only the standard rate of both components so we challenged the tribunal’s decision on a point of law and the local judge gave us permission to appeal to the Upper Tribunal. They allowed her appeal, set aside the Southampton tribunal’s decision and directed that her appeal be re-heard by a different panel. We were delighted when this tribunal allowed Mary’s appeal and awarded her the enhanced rate of both components with arrears of about £6,200. More importantly, this gave her access to the Motability Scheme which will sort out the adapted car that she needs to get around.

Let us look at the process of challenging a tribunal’s decision. You will need the appeal papers so do not through these away in temper (we have known it to happen). You have one month from the date the tribunal’s decision was given or sent to you in which to request a statement of the tribunal’s reasons for their decision and I recommend that you also request a copy of the record of proceedings, the note of the evidence made by the judge. With an appeal heard by conference call, you will be sent a form to use to request a copy of the recording.

You were able to challenge the first decision and that made at the reconsideration stage just by saying that you disagree with it. The focus changes from these matters of fact to matters of law when it comes to challenging a tribunal’s decision. You need to find one or more errors of law in the statement of reasons. A short statement might be four pages and the longest we have seen was 19 pages. We will look at what can amount to an error of law and we have included paragraphs from current files to give you an idea of how we do it.

Any of these can amount to an error of law:

• If the statement shows that the tribunal has misunderstood the legislation, overlooks relevant case law or uses the wrong legislation.
• They must explain their decision, explaining how the evidence established the facts that they found and why those facts made it apply the law in the way that it did.
• The tribunal must decide what the facts are and must not take into account irrelevant facts.
• If the tribunal makes a decision that is not supported by the evidence, this can be an error of law, so it must not ignore or overlook evidence. The statement might show that they have misinterpreted evidence or that they took into account irrelevant evidence. The decision should follow logically from the evidence before them.
• A ‘perverse’ decision could be an error of law. This may initially seem an attractive option but bear in mind the legal meaning of the word. It would apply if the tribunal acted irrationally and in a way that no reasonable tribunal with the evidence it had before it and given the relevant law, could have come to this decision. 
• A breach of the rules of natural justice could also be an error of law. I would say that this does not apply too often; I don’t think I have either used it or seen it in an Upper Tribunal decision. A failure to follow procedure would be included, as would a failure to give the parties notice that it intended to take into account something not included in the appeal papers or raised during the hearing. It could include bias or not allowing a party to speak. Yes, we regularly hear this from clients but it is usually because a witness was not allowed to interrupt while the appellant was giving evidence. That would be normal and not an error of law, as long as the witness was given an opportunity to say what they wanted before the hearing ended.

It is not unusual for a tribunal to focus on the date of the decision and depending on how this is set out in the statement of reasons, this can be an error of law. This is how we expressed this in a current file:

2. The tribunal state that they must consider the appellant’s conditions and functioning at 7/11/2019, being the date of the DWP decision, and told her that this would be their approach (paragraph 26). They applied this reasoning at paragraphs 19 and 23 with their finding that the appellant had no diagnosed mental health condition at the time of the decision. Regulation 7(3) of the 2013 Regulations defines the ‘required period’ where entitlement falls to be determined, being a period of three months ending with the prescribed date together with the period of 9 months following this. We submit that the tribunal was in error of law in concentrating on the time of the decision in reaching its own decision on the appeal (paragraphs 25 and 26 of Upper Tribunal Judge Mark’s decision in PR v SSWP [2015] UKUT 0584 (AAC)), since they either misunderstood the legislation or overlooked relevant case law.

25. The required period is defined by regulation 7(3) where entitlement to PIP falls to be determined, the period of three months ending with the prescribed date together with, for present purposes, the period of 9 months beginning with the date after the prescribed date.    The prescribed date is defined by regulation 14 as it applies to the present case as the date of the claim or, if later, the earliest date in relation to which, if C had been assessed in relation to her ability to carry out daily living activities at every time in the previous 3 months it is likely that the Secretary of State would have determined that the Secretary of State would have determined at that time that she had limited ability or severely limited ability to carry out those activities.

26. It can be seen that in the present case the tribunal had to consider the position over any 12 months period commencing between 3 months before the date of the claim, i.e. 17 October 2013) and 3 months before the date of the decision (i.e. 5 May 2014).  The tribunal was therefore in error of law in concentrating on the time of the decision in reaching its own decision on the appeal.

Look also for what the tribunal do not say, what they did not consider:

The appellant described her walking as “very slow” (page 52), while the HCP described her pace as “slow” (page 72). The tribunal accepted that her walking was slow (paragraph 49) but made no finding on whether that slow pace would allow her to achieve any distance within a “reasonable time period”, as defined in regulation 4(4)(c). The tribunal relied on the appellant’s statement to the HCP that she could walk for one minute before needing to stop for a few minutes (Page 72) but made no attempt to see if the appellant was aware of how long a minute was. Average walking speed is considered to be 1.4m/sec. A person would cover 84 metres if walking for one minute at such a pace, whereas the tribunal reasoned that walking “slowly”, the appellant would walk “in the region of 40m”. We submit that this is further evidence of the tribunal not having considered what distance the appellant could achieve “within a reasonable time period”. We submit that the tribunal erred in giving inadequate reasons for their decision or in not making appropriate findings of fact.

An example from a different file:

When considering entitlement under Preparing food at paragraphs 25-29, the tribunal rely in part on the claimant’s ability to take a bus into town to buy food on most days and his evidence that he could make a meal from scratch on two or three days a week. We say that the tribunal erred in taking into account irrelevant evidence in inferring that, on most days, he would be able to cook himself a meal or have given inadequate reasons. In the alternative, we say that the tribunal have failed to apply or have misunderstood the “on over 50% of days” provision set out in regulation 7(1)(c).

There is no need to use the same language but I hope that these examples help by showing at least one way of doing it; it can be daunting to know where to begin when you look at a blank page. You will be able to see the regulations and the cases you see here by putting them into your browser.

The tribunal concluded that the claimant needs prompting to be able to engage with other people and did not dispute the 2 points for 9(b), awarded at the reconsideration stage (paragraph 43). The accepted that he finds mixing with other people very difficult and that it causes him considerable distress, leading to him not talking to people that he does not know (paragraph 44). The tribunal’s reasons for concluding that he does not need social support, so does not instead score 4 points for 9(c) are set out at paragraph 47. Most of the paragraphs following this appear to justify their decision not to award points for 9(d). We respectfully refer to the Supreme Court decision in SSWP v MM where the “qualitative issue” to be considered when deciding whether 9(b) or 9(c) applies in a particular case is discussed from paragraph 28. The Court said that it is not merely about where the prompting is to come from but that the seriousness of a claimant’s difficulties and limitations are to be considered in deciding whether the support needs to come from someone trained or experienced in assisting people to engage in social situations. Given the evidence that the tribunal had accepted and the clinical psychologist’s conclusions in the 2014 report (page 52), we say that the tribunal’s reasons for concluding that prompting would be sufficient are inadequate and that they have misunderstood the legislation or have overlooked relevant case law.

You have been through the statement of reasons and have found at least one something that you consider to be an error of law. Send this in or with a letter to the office that issued the tribunal decision, either by post or by email. A few weeks may pass but your application for permission to appeal to the Upper Tribunal will be considered by a judge. This will be done without a hearing so what you write needs to be clear and to stand on its own as you will not be there to explain further. 

That judge can make one of three decisions:

• You could have made such a good argument that the judge sees no need to send it to the Upper Tribunal. Instead, the law allows them to set aside the tribunal’s decision and direct that your appeal be re-heard by a different panel. 
• The judge could agree that arguably there is an error of law in the statement of reasons. They would give you permission to appeal to the Upper Tribunal (UT) and along with that grant of permission, you would get a form UT1 on which to formally appeal to the UT. 
• They may not accept that there is an error law in the statement of reasons, so they would refuse permission to appeal. That decision would also come with a form UT1 because this form can also be used to apply to the UT for permission to appeal. Yes, they too can grant this. 

If the first bullet point applies, then there will be a re-hearing so that you can put in additional evidence and legal argument. Remember that this second tribunal can make any decision it sees fit, which includes taking any or all points away, leaving things as they are or giving you exactly what you wanted. It will only take points away if it feels that the evidence points that way. It is not common for a tribunal to think that way but it happens. If it does feel that some or all points are in doubt, it must warn you and will often adjourn, either for a few minutes or to another day, so that you have the option of withdrawing your appeal and walking away with the points awarded at that point. 

Having permission to appeal (the second bullet above) does not mean that you must succeed with your appeal to the Upper Tribunal but it is a very good start. The Upper Tribunal will copy your permission request and the decision granting you permission to the DWP and require them to respond. That submission will say whether or not they support your appeal and more often than not, they do give that support. The Upper Tribunal judge does not have to agree with you or with what is included in the submission put in on behalf of the Secretary of State. That submission will be copied to you with a form on which you can comment. 

It is not all unusual for the local judge to refuse permission (the last bullet point) and you should not be downhearted about this. A judge will often use standard wording but if they have commented on the grounds that you used, you can make adjustments when you use the form UT1 provided to renew your application for permission, directly to the Upper Tribunal. The Upper Tribunal judge does on to give permission to appeal in the majority of my applications like this. I do not know whether what the UT judge says when granting permission gets fed back to the local judge who refused permission, but I doubt it. Once the Secretary of State’s submission and your comment form (on which you can just say that you have no observations to make), then your UT appeal waits for your judge to decide it. The UT1 gives you the option to request an oral hearing but I doubt that these are happening during the current COVID restrictions. The vast majority of Upper Tribunal appeals are decided on the papers, without the parties being present. In my 22 years, I have done only two oral hearings before the Upper Tribunal. I asked for the first one, many years ago with a client who suffered with OCD. It had taken he and I 14 hours to complete his DLA claim form. I thought that there was a legal point to be decided that would have wider application to others and it came down to whether the brain was an organ, for benefit purposes. Even if you ask for an oral hearing, one will only be granted if they agree that it is appropriate. I did find that oral hearing in London daunting. Upper Tribunal hearings are about matters of law, rather than matters of fact so the client was not present and the Secretary of State is represented by either a solicitor or a barrister. We lost that appeal but I read years later that the decision on whether the brain was an organ for benefit purposes was decided the other way, so the law changed, which happens. So, the client and I were on the right track but either I did not have the skills or evidence to persuade the judge or it was down to the judge.

The only other oral hearing was not because we asked for it but because the Upper Tribunal judge insisted on it, because he considered that there was a point of wider application. That hearing was in Cardiff and because of the unusual nature of the point on an ESA appeal, that the judge wanted the client there too. That appeal was allowed and the client went on to win when her appeal was re-heard by a different panel. Just now and then the Upper Tribunal judge will be able to substitute their decision for that of the first local tribunal because there is no need for further evidence to be given, but most successful Upper Tribunal appeals result in the first local tribunal decision being set aside with a direction that the appeal be re-heard by a different panel. That new panel can make what decision they like; they do not have to allow the appeal when the focus changes back to matters of fact. One current client, David, had this experience and, unusually, the Upper Tribunal has given permission to appeal a second time, so if that goes well, we are probably headed for a third hearing.