Section II: The PIP appeal process and alleviating your stress levels
The tribunal submission
Having been through the assessment report, you are ready to write a submission for the tribunal. You want them to think about what you are saying in your appeal before you go into the hearing. Tribunals often use my submissions as a plan for the hearing and there is no reason why they cannot do the same with yours. The object is to make it easy for the tribunal to work with your submission. You want them to realise what it is, so give it the title, Submission. Below that, put your full name and National Insurance number. I still get tribunals that ask me what the client and I want at the start of a hearing, so I direct them to the page in the bundle where the submission begins, and just occasionally, the judge gives the impression of never having seen it before, which is worrying, but that is what you can be up against.
Be brief and business-like with the submission; you are writing this to be read by busy people. My own way is to begin by making it clear what award we want, just the rates of each component. In the next paragraph, I explain that we have been through the assessment report and that misunderstandings, omissions and mistakes have been identified. No use of the word lies. If the report was finished on a later date, then this is where I make that point, briefly and factually, giving the page numbers. I then go through the points identified in the report, explaining briefly what was misunderstood, left out, or is mistaken. It is necessary to accept that the assessor is there to form their own opinion. I know they will often reach the wrong conclusion, but they are not there simply to write down and accept what you say you can do. You may have found that the report was completed at a later date, and will surely find that the Healthcare Professional has made factual errors or contradicted themselves by describing something using quite different terms on different pages. Factual errors are helpful to you, since they undermine the ability and competence of the HP. If there are simply loads of them, that would allow you to suggest to the tribunal that yours is not a high quality report and that the opinions expressed should be given less weight, before you go on to set out your suggested descriptors under each of the headings. You may well be thinking about the report in very different terms, but this is another way in which your representative has an advantage; it is their job to be objective and professional, and to see things from the tribunal’s point of view as well.
An experienced representative will have seen very many assessment reports before, just as the tribunal members will. They will spot things that I cannot easily equip you to spot, things that are not there, but should be. Examples would be where memory problems have been identified, but the HP does not include a ‘three object’ memory test in the Mental state section; or where cognitive/thinking problems are part of the claim, but where the ‘serial 7s’ test is not included in the Mental state section, or they were not asked to spell the word ‘WORLD’ backwards. It can be the same in the Musculoskeletal section, where elements or movements are left out, but it is outside the scope of this piece to details these. You have no way of knowing if things were left out by the HP because they were not competent or if they were knowingly skipped to save them time, but neither is acceptable and these things should be brought to the attention of the tribunal, in this section of your submission, again briefly and factually, resisting the temptation to call them names.
I then move onto the ‘Suggested descriptors’ section, in which I explain to the tribunal which parts of the test are relevant to my client, which descriptor applies under that heading, and why it applies. I try to make it easy for the tribunal to find what they need to know. For Preparing food, an example might be:
1(e) Needs supervision or assistance to either prepare or cook a simple meal
My concentration is poor, due to my ADHD. People say that I have no patience, but my reason for cooking everything on full, regardless of what my partner reads off the instructions, is that it saves time. It is not really my fault that I become distracted, so burn food and have ruined pans. We thought about setting alarms, but I either forgot to set them or did not hear them from upstairs, having left the kitchen when something else got my attention. I do not understand the different sorts of dates on foods and cannot work out what the numbers mean anyway. Some things that I have cooked have come out under-cooked and meals have had to be thrown away. I have had to agree not to cook when he is out of the house, but he is almost always there. He either cooks or he watches what I am doing and puts me right. We also have a lot of takeaways delivered to the house.
In practice, I would space things out so that the whole of an Activity (ie, Preparing food) was not split over two pages, again to make the tribunal’s life easier when doing their job. I would go through the other Activities in the same way, but only those where I felt that my client should score points, or score more points under a heading. Include those Activities where you agree with the points awarded. Remember that the law says that where more than one descriptor applies, the highest scoring one should be awarded. For example, just because you need a seat for preparing or cooking food (an aid or appliance – 2 points), because standing is so painful, that does not stop the tribunal agreeing that you should instead score 4 points because you need supervision or assistance. If you have found Upper Tribunal case law that you consider relevant, you should refer to it in the submission. A very well-known case needs only to be referred to by name and you can remind the tribunal of how it is relevant to your appeal. If it was something new or less well known, then I would send a copy of the full decision to the tribunal office with the submission, perhaps referring in the submission to a paragraph number, again to make it easier for the tribunal. This might also make it more likely that the medical and disability panel members (see below) might have read the most relevant part of the decision before the hearing.
Once finished, date the submission at the end, and send it to the tribunal, with the appeal reference (eg. SC185/19/00827), explaining that it is a submission and asking them to add it to the appeal papers and copy it to the parties. Why send it in early; wouldn’t it be better to keep it secret from the DWP until it has to go in? No, I don’t think so; sending it in when you can will mean that it is on the tribunal file and some regional offices have a system of previewing files to identify those where a District Judge (a senior full-time judge) can allow your appeal without a hearing. It is not common, but I have seen it. It cannot happen unless they know what award you want, and it won’t happen unless they know why you say those points should be scored, and the evidence to support your appeal is strong. More common than an intervention by a District Judge is the three tribunal panel members meeting on the day of your hearing, discussing the cases in their list at the start of the day and finding that they agree with the award you are after, and that the evidence is strongly supportive of what you have set out in your submission. The result is that you get a call on the morning of the hearing to say that you need not attend because your appeal has been allowed in full. Having it copied early to the DWP makes it more likely that a decision maker will respond to your submission in writing. Some decisions are changed by the Department at that stage, having seen your case set out in the submission and the evidence to support it. Or, they will have to explain why they don’t agree. They may make a good point, giving you the chance to deal with what they have come up with, before the hearing; or, they will make themselves look foolish in their response, by putting forward silly points which the tribunal will see for what they are. >> Section III