Section I: The PIP appeal process and alleviating your stress levels
You can do this on your own, but the statistics say that your chances of success will be higher with the services of a competent representative. Let us say that, for whatever reason, you are going to tackle your PIP appeal on your own. Where do you start?
You will need the DWP’s reconsideration notice before you can put in the appeal. If you are having trouble with getting hold of one of these, talk to us as this is outside the scope of this article. You have a choice of how to put in the appeal; you can fill in a paper form, the SSCS1, or, providing you live in England or Wales, you can put in the appeal online. You will find the SSCS1 form online, BUT you will need to print the form and post it, along with one copy of the Mandatory Reconsideration Notices (MRN), which is why they send you two copies. Use the Bradford address at the end of the form. Please do not make the mistake of thinking that you can save the online appeal form; it might tell you that you can, but I have always lost it and have had to begin again, so please print the completed form before you do anything else with it. The alternative is to lodge the appeal online using https://www.appeal-benefit-decision.service.gov.uk/benefit-type
The same information is needed for both methods, but online, you need only put in the date from the MRN and the number that appears after ‘Personal Independence Payment’ in the address on the first page of that Notice; eg. PIP 2 or 6, etc.
Before you write the appeal
It is tempting to whack something down on the appeal form and get it done, especially when you are probably steamed up about the decision, but I advise against that. Better to be clear about what should have happened; which parts of the test you should have scored points for, which Activities (Preparing food, Taking nutrition, etc) you should have scored additional points for, which scores you agree with, and what award of each component (daily living and mobility) you should have been awarded. Don’t forget that you can challenge the length of the award too; in fact, the law says that your appeal can be just about the length of the award.
To be clear about what award you should have had, begin by going through the PIP test itself. Some of you will have done that, but not too many, I suspect. Go to https://www.legislation.gov.uk/ukdsi/2013/9780111532072/schedule/1
You should not be tempted to skip past the Interpretation section just because it looks boring. The tribunal will know what the words and phrases mean, so you need to know too. Without this, you could easily get the assessment of what you should have been awarded wrong, and so be unrealistic about what can be achieved on appeal. The Interpretation section in Schedule 1, Part 1 does not tell the whole story though. The Upper Tribunal decides appeals from the local tribunals, but only on points of law, rather than fact. When the UT decides that words and phrases have particular meanings, they cannot ignore what is in the Interpretation section, but what they do say is then binding on decision makers and First-tier tribunals, the sort that you are going to appeal to. An important example of the power and influence of the Upper Tribunal is the decision in MH v SSWP. That shorthand just means that the case was brought by someone with the initials MH (this appeal covered three appeals on the same issues, which were heard together, but the lead case was MH and that is what the case is known as). The “v” is short for versus (against) and SSWP is just short for Secretary of State for Work & Pensions. MH v SSWP is how the case would be described in the appeal papers produced by PIP and if that wording is put into a search engine, then you will find the decision in full. MH is important because it broke new ground, especially for claimants with mental health problems. The full decision is 18 pages long and is not an easy read. The cases were heard by three Upper Tribunal judges, so that it carries even more weight. It is about the two mobility activities, Planning & following journeys, and Moving around. Scroll down to paragraph 48 on page 16 and you will see that the Judges said that, “Only if a claimant is suffering from overwhelming psychological distress will anxiety be a cause of the claimant being unable to follow the route of a journey…..The threshold is a very high one.” The Government had not intended that people suffering with even severe anxiety should be able to score 10 points for Mobility 1(d), or 12 points for 1(f), so they changed the law in an attempt to undo the effect of the decision in MH. Happily, the High Court struck down the Government’s change, saying that it was clearly discriminatory. The result is that the expansion of entitlement brought about by the decision in MH stands. The DWP eventually embarked on a trawl of cases to identify those that had been wrongly decided; this is called ‘Leap’. One can only guess how effective that trawl is. The point is that you will not find this in the test itself, or in the Interpretation section. The appeal papers that will be put together by PIP as a response to your appeal will set out the law, including case law, as they see it. Let us just say that I do not always agree with the interpretation set out in those appeal bundles, written for the benefit of tribunals and claimants.
So where could you look for helpful caselaw? £61.00 is quite a lot of money for a book, but set against the value of the arrears that you stand to get from a successful appeal, it is a small investment. It will buy you a copy of the CPAG (Child Poverty Action Group) Welfare Benefits and Tax Credit Handbook. Go to cpag.org.uk or call them on 020-7837-7979. I have that book on my desk, but I use the same book that is issued to tribunal members, Social Security Legislation, Volume 1: Non-Means Tested Benefits And Employment And Support Allowance, published by Sweet & Maxwell. The cost is about £120 and it can be ordered from CPAG, but it is not as user-friendly.
Writing the appeal
So, you have got your head around the test and have been through it, deciding which of the descriptors should have applied to you, and so, what award you should have had. Now is the time to write your appeal. It can be hard to know what to start with, so you could do worse than copy me. When putting in an appeal online, I am writing as though I am the client, and I always begin with:
“I consider that I should have had awards of (for example) the enhanced rate of both the daily living and mobility components of personal independence payment.
I do not consider that either the Healthcare Professional or the Decision Maker have properly understood how my medical conditions affect me. I consider that I should have scored additional points for (for example) Preparing food, Managing medication, Washing & bathing, Dressing & undressing, Engaging with others, Planning & following journeys and Moving around.
My reasons for identifying the above Activities include (as an example) my epileptic seizures that come without warning, my tendency to lose concentration easily and be distracted from tasks, the lack of motivation that is a symptom of my depression, my inability to cope with my anxiety and need to have someone with me when I go to new places, and the degree to which my walking is limited by severe pain and stiffness, which causes me to stop to recover, and to walk slowly.”
Great, so you have put in your appeal. The tribunal office will confirm receipt and will tell PIP that your appeal has been lodged. The Department then hasa 28 days in which to put together their response to that appeal. Copies will be sent by them to the regional tribunal office, to you and to your representative, if you have one. The first pages of that bundle will be a history of your claim and the decision making so far, the law including the PIP test, the appeal you sent in, the claim form, the assessment report, original decision, your request for a reconsideration and the reconsideration notice. If your papers come unattached, without a staple. I recommend that you put them in a ring binder or attach them with a treasury tag in the top left corner. They will stay in order better and you will be able to get around in them more easily at the hearing. By all means have a good read through the whole thing. Look for evidence that supports what you say about how you should have scored points. Look also for evidence that is against you. Shocking but true, there are appeal tribunal members who will be looking for reasons to refuse your appeal, as opposed to reasons to score you more points.
You need more evidence though, but from where? You could divide it into medical and non-medical. For medical, think about your GP, reports/letters written by other specialist, perhaps for another purpose, the assessment report they left after your occupational assessment (ask for it if one was not left), a hospital discharge form, GP notes. I have seen people sink their appeal by sending in medical (and other) evidence that undermined their case; they only saw the bits that looked good to them, or they just sent it in because it was medical. Please read it as you did with the appeal papers; once for things that support what you are saying, and again for material that could be used against you.
I make extensive use of witness statements, and these can be from anyone who has relevant knowledge about you and how you are affected. Think about neighbours, family, friends, professionals such as a support worker, community psychiatric nurse (CPN), work colleagues or your line manager. Easier perhaps for me to take these as a third party, since I can ask questions around the problem areas or limitations identified. You would probably have to ask these people to simply put their thoughts down on paper, which are sure to include material that has no relevance to the PIP test and activities, which I am able to leave out of the draft statement sent to the witness for amendment or approval. The statement should include the person’s name and address, as well as how they know you (friend, cousin, Manager, etc), how long they have known you and how often they see you. As with anything else, read the statements from both the positive and negative viewpoint, before deciding whether to send it in.
Go through the assessment report; it will have PA4 towards the top. Begin by skipping to the end of the report and see when the Healthcare Professional (HP) last worked on your report, comparing that with date of consultation on page 1 of the report and note any difference. On quite a few reports, the HP completed it a day or two after seeing you; I have also seen gaps in time of 3, 7 and on one occasion, 14 days. You can use any gap in time when it comes to writing your submission for the tribunal. Personally, I use a red pen when marking up the assessment report. It helps my notes to stand out from the text on the page, but you will have your own way of doing this. You are looking for things that the HP misunderstood, those that they got wrong and relevant things that you said to them, but which they failed to write down. Look for things that you would not have said, because they are just plain wrong. Check that the dosage of the medication has been noted correctly. Look back to how something was described earlier in the report; many things are taken from the ‘History of conditions’ at the start, or from the Observations and Mental state sections. Your walking may have been described as “very slow” on one page but as simply “slow” on another – that is contradictory as they cannot both be right. The variability of your symptoms can be very important to an appeal, but mistakes can be made when the same thing is mentioned on a later page. Many is the client who calls and says that the HP lied on the report. I never use such language. You have no way of knowing the mindset of the people who will sit on your tribunal panel. What you do not want is for them to wonder what motive the HP would have for lying. If they conclude that they have nothing to gain by lying, then the obvious conclusion is that you are the one who is lying about whatever it is. The next question for that tribunal member is what else you are lying about? >> Section II