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PIP - appeal to upper tribunal

jgordon5jgordon5 Posts: 8Member Listener
edited April 2018 in PIP, DLA and AA
Hello
I wonder if you can help me, please.  I have brittle T1 diabetes, with impaired hypo awareness and I was on DLA but was just too young :smiley: (by 1 year) for it to continue, so I applied for PIP. The assessment was awful and full of errors and the HCP had no idea of T1 diabetes at all.  In her report she wrote that "insulin helps her symptoms"!!  
Mandatory reconsideration was turned down, the decision was mostly cut and pasted from the original medical report, including all the errors.

I waited ten months, without money obviously, for an appeal and my appeal was rejected.  The DLA helped me to fund a continuous glucose monitor and to pay for mobility therapy.  I need both in order to be relatively safe.  I have just requested permission to appeal to the upper tribunal and that has been refused so I am now trying to fill in the form to ask directly for an appeal to the upper tribunal.  I have had advice from CAB and a local voluntary disability service and they both believe that the CGM falls under the description of an Aid or Appliance as stated in the Disability Rights Handbook.  The tribunal failed to recognise that.  They also failed to respond to the case law ruling on assessing unpredictable and fluctuating diseases; and the case law which says that the claimant's evidence should be given equal value to that of medical evidence.  I did actually submit medical evidence too but that also was ignored.

Sorry this is so long, but my question is...... we thought that all of these points were errors of law, in that they failed to address them and that the medical expert on the 1st tier panel had no knowledge of brittle T1 diabetes - are they errors of law and will they be sufficient to list on the UT1, please.

Replies

  • kevin888kevin888 Posts: 53Member Courageous
    I did not know about brittle T1 till I just looked it up. WHY don't the HPs? do this!!
    Obviously you need the CGM but they think that as an aid it helps you so it goes against you in the PIP thinking. Anything that helps you counts against you, like a walk in shower instead of a bath. As you failed the Tribunal it may be worth re applying from the start again, maybe someone else can advise on this or CAB they helped in my appeal. Good luck. There should have been a doctor with knowledge of the facts on the panel, if not why not?
  • yingtongyingtong Posts: 31Member Courageous
    Hi,I am a Type 1 diabetic for 57 years and I have no 'hypo' awareness and my hospital funds my CGM,I suggest you look at the NICE guidelines for funding for CGMs and quote them to your Consultant and hospital.I hope this helps a little.
  • spencerspencer Posts: 1Member Listener
    I appealed last jan 2017 but September gone I phoned them to ask why I had waited for so long and they said we don't even know who are so I went to and seen someone at merton house bootle Stanley rd and they asked for a new appeal coz my paper works was lost and they said they would take the appeal on and now its march 2018 still no date I have lost my right leg and also have mental health problems and my hips and back are bad ,   im getting sick of waiting when people that put their appeal after mine have been seen and got it just for metal health and I have around 12 things wrong with me,  im starting to feel like this as been lost 2nd time around so its just under 1 an half years have waited with the problems I was only on 89 a month for my leg and that was for 15 years so how as this happened and what do I do thanks
  • jgordon5jgordon5 Posts: 8Member Listener
    Thanks, unfortunately I can't apply again because the upper age limit is 64.  That's why the situation is so crazy!  
    We explained that even with the CGM I can't perform their daily activities or mobility on the majority of days - the CGM warns me before I pass out usually but I still have a couple of hypos a day usually.
    I'll just have to do the form and hope the upper tribunal is a bit more thorough and actually reads what I've said.
     :) 
  • jgordon5jgordon5 Posts: 8Member Listener
    yingtong said:
    Hi,I am a Type 1 diabetic for 57 years and I have no 'hypo' awareness and my hospital funds my CGM...

    Thanks, the hospital are looking into that and it would be a great help but with no DLA and no PIP, I am really struggling to manage.
  • jgordon5jgordon5 Posts: 8Member Listener
    spencer said:
    I appealed last jan 2017 but September gone I phoned them to ask why I had waited for so long and they said we don't even know who are so I went to and seen someone at merton house bootle Stanley rd and they asked for a new appeal coz my paper works was lost and they said they would take the appeal on and now its march 2018 still no date I have lost my right leg and also have mental health problems and my hips and back are bad ,   im getting sick of waiting when people that put their appeal after mine have been seen and got it just for metal health and I have around 12 things wrong with me,  im starting to feel like this as been lost 2nd time around so its just under 1 an half years have waited with the problems I was only on 89 a month for my leg and that was for 15 years so how as this happened and what do I do thanks
    That's awful, I don't know what you can do except that there are solicitors who will represent claimants for free but most of them are in big cities.  Citizens Advice should be able to give you a list of them and perhaps you can get some help that way.  I hope so.
  • mikehughescqmikehughescq Posts: 3,368Member - under moderation Disability Gamechanger
    Mixed advice so far so let’s see if we can sort through it. 

    1) I do not believe it is clear cut at all that a CGM is either an aid, appliance or assists with therapy especially when you say that hypos can happen regardless. 

    2) There is no case law which says that the evidence of a claimant should be given equal weight to other evidence, medical or otherwise. All evidence should be weighed according to its credibility. I very much doubt your medical evidence was ignored. More likely it was given little weight, rightly or wrongly. 

    3) @kevin888 is incorrect in saying that use of an aid goes against you for PIP. That was true for DLA but the exact opposite is true for PIP. A quick glance at the descriptors show that aids and appliances explicitly score points. 

    4) It is sadly not unusual for applications for leave to appeal to be refused by the regional office. Direct applications with substance usually stand a better chance of success but if that fails your only option is judicial review so you urgently need good quality advice before submitting what is your last throw if the dice give  your age.

    5) Which points do you think you should score for daily living? Even if a CGM were an aid it may not be for all activities and I’m struggling to see how, by itself, it would get you to 8 points. What do you think the points should be? If you don’t know that at this stage then your appeal to first tier was likely lacking in focus and likely to fail. Were you represented on the day? Do you have a local authority welfare rights service in your area or a law centre?
  • jgordon5jgordon5 Posts: 8Member Listener
    Thanks, @mikehughescq for taking so much trouble.

    1)  The CGM enables me to carry out daily living activities at least some of the time and the point or benefit of it for me is that although I still have hypos , the CGM warns me in time so that I do not usually lose consciousness and require hospitalisation and third party intervention. In that way, I believe it fits the Disability Rights Handbook definition, "Aid or appliance means any device that improves, provides or replaces your impaired physical or mental function...."

    2)  I think you will find in CPIP/2651/2015 that it was decided that "Expert evidence not inherently of more value than a claimant’s own / tribunal must explain why an appellant’s evidence is rejected."

    3)  Good, that helps if aids score points!

    4)  We did have very substantial arguments and we did quote case law.  One of my daughters did much of the research and sent very detailed documents.  I do not think they were even read.  There is one man at the local CAB who has made a study of PIP appeals and I will try to get advice and help from him before sending in my UT1.  The disability organisation is so overstretched with the number of people in difficulties and needing advice, they do not really have the time to give to each individual case, sadly.

    5)  In the mandatory reconsideration I went through each component in Daily Living and Mobility and explained why I should have scored points in detail.  As a generalisation, I cannot do any of the daily activities repeatedly, reliably and safely because hypos and hypers completely incapacitate me for some time.  So I may be able to get myself some food at some point but I could not say that I can reliably do that at regular mealtimes every day.  It took a few pages to go through every activity, so I won't repeat that here but CAB and Disability Solutions both checked what I was sending and were pretty taken aback that it had no result at all.  It's a strange system in any case because obviously the disabilities representative and the 'medical expert' are paid by DWP or HMCTS to attend and there must be some tendency for them to find against otherwise they would not be asked again and would not be paid?  Perhaps that is an assumption on my part but both Disability Solutions and CAB knew the people in question and both had reputations for turning appellants down.

    Thanks for your help.


  • mikehughescqmikehughescq Posts: 3,368Member - under moderation Disability Gamechanger
    1) A CGM is a monitoring device. What’s the impaired physical function you think it replaces? As I say, it’s a long way from clear cut.  For what it’s worth I’m pretty clear it would score 1 point at best as an aid under the therapy activity. 

    2) You have misunderstood the decision you cite. The fact that expert evidence is not inherently of more value is not the same as saying it must therefore be of equal value. That’s nonsense. In some circumstances the claimants evidence will be more credible than that of a HCP. In others it will be incomplete, incoherent, contradictory or plain nonsense. Ditto evidence from specialists etc. An argument about legal interpretation of a specific word or phrase will benefit from case law. A strong case would never need to rely on an argument about the weighting of evidence. The credibility of evidence is usually self-evident. That suggests to me that the way the case was presented was a belt and braces approach which assumed the tribunal were stupid and would need everything explaining. The fact your daughter sent “detailed documents” adds to that impression. Most times with tribunals less is more. More detail; more case law and so on can often undo a case. A few pages per activity is, to be blunt, wholly unnecessary. 

    3) Nothing to add.

    4) I can assure you that all documents in an appeal bundle are previewed at home by the panel and again in brief on the day. That you didn’t get the decision you wanted may have led you to a different conclusion but it’s almost unheard of for tribunals to overlook documents. They may have weighted them incorrectly, or different to how you wanted them to view them, but you could not possibly conclude from that that they weren’t read and it’s a non-starter as an argument for UT. 

    5) It sounds like you will have lost credibility for trying to argue points on every daily living activity. To then incorrectly cite case law telling a tribunal how they should treat your evidence as equal to the HCP will not have put you in good odour with the panel.

    I see no clear cut points at all for anything other than activities 2, 3 and 4. Explain for example how you’d score on prepping food? Only 1e could apply. Do you have evidence of hypos when preparing food or is the need for supervision hypothetical? Similar issues with dressing. Please bear in mind I’m playing devil’s advocate. It sounds very much like over anxiety about the outcome has led to an over-prepared case trying to somehow guarantee success by trying to dot the i’s and cross the t’s.
  • jgordon5jgordon5 Posts: 8Member Listener
    1) A CGM replaces to some an extent a functioning pancreas because it allows 24 hour knowledge of the state of my blood glucose levels.  Without it, I have to finger **** so often, it makes ordinary daily living extremely difficult and it gives no warning of impending episodes of either hypoglycaemia or hyperglycaemia.

    Without going through everything again, I obviously do not like the decision but that is not my reason for appealing.  On DLA I was on the higher daily living allowance and the lower mobility allowance.  Between one day and another, it was decided that I had none of the problems I was getting DLA for, which enabled me to buy my CGM supplies, attend a mobility therapist and various other things which have helped me to be able to live independently.

    With regard to the papers, I suspect that at least up until the 1st tier tribunal, documents were not read because nothing was answered at all, just the original medical report was cut and pasted as a reply.  The consultant's medical evidence was not in the appeal bundle although it was submitted at mandatory reconsideration stage and, therefore should have been in the documents bundle.  

    I understand what you have said about the case law but I think, without going over it all now, that I just quoted rather than saying what I implied to you.  I appreciate that you are playing devil's advocate .... but so far, disability advisers and CAB have advised that the continuous glucose monitor comes under the descriptors of an aid or appliance;  that it is an error of law that the incorrect medical assumptions made in the face to face assessment have not been addressed but have been used to justify the decision;  that the ruling on unpredictable and fluctuating conditions was not applied in this case, is also an error of law.  T1 diabetes and epilepsy were both mentioned in that ruling.

    The government statement for the purpose of PIP is to assist those with disabilities and chronic diseases to lead an independent life by assisting with the extra financial burden of living with them.  This was what DLA enabled.

    So, I really appreciate your help but are you saying don't go on with the appeal or what?  I know PIP is not means tested but I am on pension credits and without any DLA or PIP, I am surviving on handouts and that is having a really negative impact on both my physical and mental health.
  • mikehughescqmikehughescq Posts: 3,368Member - under moderation Disability Gamechanger
    Not saying don’t appeal as it would be reckless and stupid to say that in any case where the full details are not known. What I am saying is that the case re: the CGM is weaker and less straight forward than you’ve been led to believe. A CGM is defined as a monitoring device. Aids help perform a function. Appliances replace a function. A CGM as defined doesn’t appear to do either. It does fit with monitoring though. Thus my suggestion of 1 point. If you want to get a different outcome to that then arguing that it replaces “to some extent” is not a winning argument. It either fully replaces or it doesn’t. That’s a big problem right there. Your views on documents being ignored are irrelevant at this point. What you suspect is a distraction and nothing to the point. It’s a weak argument also to say now that the consultants report was with DWP for the MR but then didn’t appear in the appeal bundle. As soon as you receive the bundle you identify that and get a copy yourself from the consultant and submit it to HMCTS. No error or grounds for set aside there if you or your reps have not acted. It’s also a mistake to assume medical evidence is the decisive factor. The consultants report may in fact have told them zilch about your daily living needs. Any incorrect assumptions in the HCP report were for you to challenge at appeal. It’s not automatically an error of law to hear your evidence and decide differently though and I note that you haven’t picked up on my point re: arguing for points on every activity; whether you had any real world examples abd how that approach may have damaged your credibility. This may well be a case of too much detail and a lack of focus on what matters. I stand by my point that pages per activity is OTT and likely detrimental. The case law on fluctuating and unpredictable conditions is not something a panel have to address in every case. Almost all conditions fluctuate. It does not sound to me that it was decisive to the tribunal decision. If, for example, you decide that there’s no points for prepping food or reading then that’s the end of it. There’s no additional duty to go further and state specifically that even with huge variations you wouldn’t qualify. It would be enough to say that 1e didn’t apply because there was insufficient evidence that it did or that the HCP evidence was accepted ahead of other evidence as long as it’s explained why. I appreciate your reasons for appealing. They are absolutely valid. My point is that the errors of law you’re looking at are closer to arguments as to errors of fact. They’re not the same thing and they likely won’t get you leave unless the arguments are sharpened up. I have said on here previously that almost all FTT decisions do contain an error of law. That’s likely to be true in your case too but I’m not convinced the arguments you’re leading with amount to an error of law and even if they did, based solely on what you’ve posted thus far, the case for PIP isn’t being made out. I presume when you requested the statement of reasons post appeal that you also requested the record of proceedings by the way?
  • jgordon5jgordon5 Posts: 8Member Listener
    Thanks, that's very helpful.  This whole process has reignited a long battle with depression, anxiety and confusion, which I was managing to cope with quite well.  I couldn't even put the document bundle in order, let alone make sense of it until one of my daughters went through it with me and labelled everything for me.  But my daughter has a full time job and is very busy and so hasn't had a chance to help me compare the statement of reasons, written record of proceedings and the outcome ..... I will try to get on to it.

    I maybe did suggest that there were pages of explanation on each point but that wasn't what I meant to imply.  There was a brief detailed reason for each point, so several points covered on one page!  In the case of prepping food for instance, I cannot do that safely, reliably and repeatedly for the majority of the time.  I have neuropathy and keep dropping things. After hypos, my hands shake badly and I can't focus. 

    Anyway, without going into everything, you've given me a lot to think about and helpful suggestions on how to complete the UT1.  Thanks very much @mikehughescq ;   :)


  • mikehughescqmikehughescq Posts: 3,368Member - under moderation Disability Gamechanger
    Aha, neuropathy would be a clearer argument for numerous activities such as prepping food; therapy; dressing etc. I would say though that you’ve now twice referred to implying things to me when you actually said them outright. It’s not something I’d normally pick up on but the lack of precision with language does further reinforce the impression that the tribunal may have had issues with the credibility of your evidence. 

    Anyway, happy to help. Hope you get leave to appeal and then another chance to do this at FTT. 
  • jgordon5jgordon5 Posts: 8Member Listener
    Sorry about that, I am far too imprecise, can't remember things and often haven't the energy to go back and check. That's one of the difficulties many of us face in attempting to claim benefits. Sorry.  :(
    That's why I get my daughter to write for me. She's very precise. 
    Thanks again. 
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