Section III: The PIP appeal process and alleviating your stress levels
Because your appeal is going to be decided by a tribunal, rather than a court, evidence can take many forms; it is for the tribunal to decide what weight to give it, but I cannot think offhand of something that you cannot use. If you have some unusual evidence, try not to take the tribunal (or DWP) by surprise; it will irritate the tribunal and very likely result in your hearing not going ahead that day. Just as the Department cannot spring something on you on the day and expect you to carry on without having an opportunity to consider it, and if you want it, take advice on it, so you cannot do so either. The client who described himself as a bit of an inventor and who had made a secret video and sound recording of his ESA assessment had the sense to have a report done to show that the recording had not been tampered with, by him, and told the tribunal that he would want the tribunal to see the recording. He was upset because according to the report, the doctor had carried out a full physical assessment, whereas the recording showed the doctor advancing towards the client, the client making it clear that he would not agree to such an examination, and the doctor backing off. At the hearing in Walsall, the tribunal opted not to see the recording, but instead heard his appeal on the usual evidence, allowing his appeal in full. Job done, but before I left the tribunal room, I made sure that they understood what the recording showed, because it might just influence how they react next time a claimant alleges that something didn’t happen.
You may have a report from an occupational therapy assessment, hospital letters/reports, or something from the GP. All of these can be used, but please, please read everything, from the point of view of someone looking for a reason to turn down your appeal, as well as for what support it offers. I have seen appeals lost because of something the client sent in before I became involved. Don’t think that statements from friends, family, neighbours or work colleagues are not worthwhile; they most certainly are, but for the contents not to be a waste of time for the tribunal, they need to focus on what is relevant to your appeal – what is in your submission. If you have said in your submission that some things reported were not said, or did not happen, or what you did say has not been noted by the HP, then the person who was with you may be able to help by setting down their own recollections. I have the ‘suggested descriptors’ part of the submission in front of me when I ask questions of the witness, to make sure that I cover everything. Don’t worry that many of the witnesses will have no knowledge of how you get up from the toilet, or whether you can get into the bath without help; those topics will just not feature in that person’s statement. Just today, my client at Newport had witness statements from his wife (who was present to support hers), a friend, a work colleague and his manager. The manager’s knowledge of the six parts of the test that we said were relevant to Steve’s appeal was limited to perhaps two, but an independent witness like him, saying things that were consistent with what we and the other witnesses were saying, must help (today’s tribunal decision is being posted out to us). Think creatively, not long ago I had a statement from the shop keeper from the client’s local shop. It was short and only really covered the fact that he did not engage with her when he went in, and that this was not often, but it was from a more independent source and it supported what we were saying, which I feel, lends weight to the other things that we were saying. Anyway, he got what he wanted from the appeal.
There may be better ways, but the format I use for statements is:
- I, Joe Bloggs of 14 Church Road, Lincoln make this statement in connection with the disability benefit appeal made by my wife/friend, etc [your name]. I have known [you] for 6 years and (where they are not living at the same address) at the time that the tribunal has to look at, I was seeing her/him at least three times a week.
Then off you go with the contents. I number the paragraphs to make it easier if I want the tribunal to look at something during the hearing, or if the witness is at the hearing and I want to ask them to comment on something they have said in their statement. Make sure that it is signed and dated. Again, I send all such evidence to the tribunal office once I have them all done.
Not too many GPs will provide a letter that does more than confirm what the diagnosis is, and set out the medication. To be fair, the tribunal needs to decide how you deal with personal tasks, and not many will have any opinion about what you can do in the kitchen, the toilet or bathroom. A letter from any doctor that says, in effect, “he tells me that ….” has no value. It can be well worthwhile requesting medical notes from your surgery, to include incoming letters from specialists. Think about how far back to go, bearing in mind the date of the decision that you are challenging, but also when things happened to you. If you have to go back 6 or 12 months further to capture information in your notes about a failed operation or the results of an MRI, then do so. Trust me, I know how much fun it is to wade through 250 or 500 pages of medical notes, but it has to be done. Standard rules apply – look for support and negative things, then you can make a decision on whether you submit what you have. If the notes have numbered pages, you are asking for trouble trying to leave some of those pages out; the tribunal is very likely to ask to see the missing ones, and if you make up some excuse, your credibility will be quite badly damaged. It is the same when you have a two-page medical letter and send in just page one.
The hearing date has arrived
You have your hearing date, but you still have preparation to do. I probably have three hours work to do at this point, before the hearing itself. Make sure that you know where the venue is and you have a plan for getting there, allowing time for problems along the way, whether it is traffic hold ups or parking issues. Think about a trial run to the venue, preferably during office hours. At some venues, they will let you into the building’s car park if you are there on official business, which you will be. Go and press the button on the car park barrier’s intercom – you might be pleasantly surprised. If not, then look at your other options. If you are claiming points for having limited walking ability, the tribunal is likely to ask how you got there that day. If you have walked from a car park, then no matter how painful that was for you, the tribunal are likely to draw negative conclusions, so think about getting yourself dropped off near the door of the building. You cannot get anywhere near some venues with a car, as bonkers as that sounds, so consider alternatives. Maybe you will explain to the tribunal that you had to borrow/hire a wheelchair because your trial run showed that you would not be able to walk it. The solution will be up to you; just don’t get caught out.
Think about the start time of your hearing. I like to be fed, but not overfed, so a hearing at lunchtime can be tricky. Today’s venue had a water machine, but not all have this, so have a drink with you. With the appeal papers, I will have a list of the pages, such as medical evidence, that I may want to find during the hearing. You are likely to be nervous and you want to make it easy to find what you want, even under pressure. Anyone can glaze over faced with a page of text, even though you know that there is something important in there somewhere. Up to you how you mark it up – highlighter, underling in another colour, notes in the margin, just so long as you can find that bit when you need to. You do not want to come out of the hearing wishing you could have pointed something out, if only you had been able to find it. One of my aids is a ‘We want’ sheet, which might begin something like this:
Preparing food 1(e) 4 points Supervision/assistance
- Hands – lack of sensation and weakness – cutting self
- Memory and concentration – near misses and accidents
- Left leg gives way without warning – falls/stumbles - accidents
- Underlying claim to 2 points for 2(b) Aid – seat - lower back pain cos of standing
A decent tribunal will ask about these things, because you included them in your submission, so as the hearing progresses, you will hopefully be able to tick off whole paragraphs because they have been covered, and there is no need for you fill in the gaps when it is your turn. You will be asked if there is anything you want to add after they have all finished questioning you, and you need some way of collecting your thoughts at such a moment. If you do not know what you are going to say, the hearing is over and you are out of the door, wishing you had been better prepared. >> Section IV