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Decision reached without Tribunal hearing - can we appeal?

TamsinTamsin Posts: 17Member Connected
edited November 2018 in PIP, DLA and AA
Hi All, I have been supporting my mum with her PIP appeal. We requested a tribunal hearing following an unsuccessful mandatory reconsideration. However, today she has received a letter stating that the tribunal decided they could decide this appeal without a hearing. She has been awarded enhanced mobility but has lost her daily living component, they have scored her only 6 points for this.  My question is can we appeal this decision and if so what is the process? Would their current decision be put on hold until a hearing occurred? Many Thanks

Replies

  • CockneyRebelCockneyRebel Posts: 5,250Community champion Disability Gamechanger
    You can only appeal a tribunal decision if an error in law has been made

    What is an Error of Law?

    When appealing a Tribunal Decision to the Upper Tribunal, you need to show that there has been an Error of Law.

    Commissioners Decision R(A)1/72 states that there is an error of law if:

    1. The decision contains a false statement about the law e.g. they got the law wrong or misinterpreted it. 
    2. The decision made is supported by no evidence 
    3. The facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination in question (a perverse decision).
    4. There has been a breach of natural justice, i.e. the procedure followed leads to unfairness.
    5. The tribunal did not give proper findings of fact or provide adequate reasons for its decision. There must be sufficient reasons so that you can see why it reached the decision it did.

    “The minimum requirement must at least be that the claimant, looking at the decision, should be able to discern on the face of it why the evidence has failed to satisfy the authority”

    See also R(I)14/75 which states that a decision would be wrong in law if it was in breach of the requirements of natural justice or failed to state adequate reasons.


    Be all you can be, make  every day count. Namaste
  • BenefitsTrainingCoBenefitsTrainingCo Posts: 2,679Member Pioneering
    Hi @Tamsin A case can be heard either by an oral hearing or a paper hearing.  If the latter is requested then the claimant is not notified of the hearing, the first you would know is when the decision is sent.  Only when an oral hearing has been requested are the parties notified of the hearing date.  It is worth checking if you requested a paper hearing or an oral hearing when you completed the form SSCS1 requesting the appeal.  If you have requested a paper hearing, then I am afraid only if there is an error in law can you challenge it as outlined by @CockneyRebel above.  However, if you requested an oral hearing and were not sent a date, then you could request  a set aside of the tribunal's decision.  This is usually given where it is in the interests of natural justice to do so and there is some sort of procedural irregularity (such as not being notified of the hearing/not getting the documents etc).  If you are to do this, you must request it in writing no more than 1 month from the date you received the decision notice.  A decision will be made on whether to set aside the decision and if it is agreed, a fresh hearing would be arranged as if the first never happened.
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  • mikehughescqmikehughescq Posts: 3,451Member - under moderation Disability Gamechanger
    There is now clear case law that even if you elected for a paper hearing the tribunal have to consider whether an oral hearing would still be the better option. Obtaining a statement of reasons and record of proceedings will help you see whether they even considered the point. If they didn’t then you have a fairly straightforward appeal to upper tribunal although some district judges will just set aside.
  • TamsinTamsin Posts: 17Member Connected
    Thank you all for replying. We requested an oral hearing, the decision was made without a tribunal date being sent. If we now request a set aside what happens next? Could we be waiting over a year for a date? My mum is really struggling financially, she's pretty much been housebound since losing pip as she can't afford the taxis she needs to get out, she has severe mobility issues. We know she should have been awarded the daily component too but I'm concerned about requesting a set aside and having her without any pip at all for another year. Can we take further medical evidence to the oral hearing once it happens or can no further evidence be given at this point?
    Thanks again.

  • poppy123456poppy123456 Posts: 15,173Community champion Disability Gamechanger
    She needs to ask for the statement of reasons and record of proceedings before she can attempt to take it any further and she has 28 days to request this.

    Backdated payments can take 6 weeks or more. If an error in law is found and you decide to appeal this then she'll continue to receive the payments for the award she has.
  • TamsinTamsin Posts: 17Member Connected
  • justg72justg72 Posts: 173Member Pioneering
    Hi Tasmin
    So sorry to hear about your Mum. I have had the same thing happen to me they had given me high mobility and no care. I know why they have done this because they are saving money because they dont have to pay the severe disability benefit in my ESA which saves them £75 a week.  I am waiting for a tribunal date and I have been told off the tribunal service the waiting time for a hearing is 54 weeks. I am in for a long wait. I went to see a benefit advisor about my tribunal and he looked at my tribunal paperwork he said that I have a really strong case and he wouldnt be surprised that I might get a phone call from DWP before my tribunal with an offer for my daily care as this is happening more now. I do not know what to think I have lost all faith with the DWP. They just leave people destitute and hope people give up. Do you have to wait for a date now? Anyway good luck and I hope you get some good news.
  • TamsinTamsin Posts: 17Member Connected
     Justg72, sorry to hear you're in the same situation. I hope that you do get an offer and the wait isn't too long.

    We applied to have the decision set aside, how long does it take to recieve a response as to whether they will agree to set aside the decision?

    My mum had a message today saying that DWP have tried to call her about her claim. I'll call them tomorrow, I do hope its not more bad news!
     
  • mikehughescqmikehughescq Posts: 3,451Member - under moderation Disability Gamechanger
    No time scale.
  • YadnadYadnad Posts: 2,862Member - under moderation Disability Gamechanger
    Tamsin said:
     Justg72, sorry to hear you're in the same situation. I hope that you do get an offer and the wait isn't too long.

    We applied to have the decision set aside, how long does it take to recieve a response as to whether they will agree to set aside the decision?

    My mum had a message today saying that DWP have tried to call her about her claim. I'll call them tomorrow, I do hope its not more bad news!
     
    Why oh why do the DWP try to discuss matters regarding Tribunal matters over the phone. In fact it has absolutely nothing to do with the DWP.

    Decisions relating to appeals are dealt with by the MOJ.

    The trouble with telephone conversations involving the DWP are one thing, proving at a later date what was said is another matter.
    For that reason I refuse to entertain any government department wanting to discuss anything with me - put it in writing!!
  • TamsinTamsin Posts: 17Member Connected
    I spoke to DWP this morning and they said they needed my mum's bank details in order to pay her what the court had ordered ( enhanced mobility). I informed them that we had applied for a set aside of that decision but they said that until the court agrees the set aside and informs them of it, they have to make the payment. They clarified that if the set aside was agreed they would suspend any further payments until the next tribunal decision.
    Has anyone else been in this situation?  I've lost faith in them giving me the correct information!

    Thanks

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