So continuing on from Part 1 of this mini-series, which covered how to navigate the PIP appeal process, here is Many Lemons’ Top 12 tips to read before embarking on the PIP appeal process (yeah, 12 not 10, I’m not conforming).
Number 1: Bear in mind the deadlines of each phase:
REQUEST A MANDATORY RECONSIDERATION:
the DWP must receive your request within one calendar month of the date on the decision letter you received
APPEAL TO THE TRIBUNAL:
the tribunal must receive your request for appeal within 1 month of the date of the Mandatory Reconsideration Notice.
It is possible that you can still appeal past these deadlines but it’ll be a lot harder and you’ll have to argue as to why you missed the deadline. But, if you are in this boat, as always, don’t let this put you off, you can always give it a good go. Go for it.
Number 2: Be aware of and use phrases that apply to you
If it applies to you, be aware of and repeatedly use the phrases:
“most of the time”, “majority of the day”, “more than 50% of the time”
“I can manage this BUT I suffer with pain / fatigue / exhaustion / numbness / tremors / weakness afterwards and have to rest/take pain medication as a result and it affects me afterwards in that <insert your experience here> for the rest of the day / days afterwards”
“I cannot do this safely/reliably/repeatedly/within a reasonable time/whenever I need to”
“I can sometimes do this on a good day, but these days are rare / occasional / happen less than half the week”
“It takes me a long time to do <activity> because I have to keep resting / it causes me pain”
“If I do <activity> repeatedly, I suffer pain / exhaustion / severe discomfort / tremors / numbness / weakness / problems with grip”
This is key if you have a condition that fluctuates by the minute / hour / day / week / month and/or you have invisible symptoms. In 2013 the Countess of Mar and members of Professor Malcolm Harrington’s Fluctuating Conditions Group succeeded in getting the DWP to amend PIP regulations to take into account fluctuating conditions and invisible symptoms. So if it applies to you, use this amendment by using the phrases! Further details of how to explain your condition in PIP-friendly terms will be coming up soon in a future blog post.
Number 3: At any stage of the tribunal appeal process, you can put the brakes on and say ‘stop’!
This is a very handy piece of knowledge to have because it can alleviate the incredibly high anxiety most of us feel about the whole process. Just receiving a DWP letter through the letterbox can fill us with panic, but knowing you can stop at any time, means in your head you can say ‘well, I’m not going to do anything, I’m just going to see how this goes out of curiosity’.
Number 4: PAPER TRAIL PAPER TRAIL PAPER TRAIL!!!
Photocopy any paperwork before you send it off to the DWP or to the tribunal service. Also, make a note of any phone calls you make with the DWP and always follow up with a written, dated and signed letter which details what was discussed along with the date and time it was discussed, and send this letter to the DWP recorded delivery. There have been many cases where the DWP has denied phone calls were made to them and also denied mandatory reconsideration requests by claimants were ever made. Cover yourself.
On the flip side, bear in mind that whatever you say during a phone call could be used later on (it’s very rare to be recorded, bu the assessor may make notes). So it’s worth keeping a pad of paper by the phone in case you get a call. In this way, you can make your own notes of what was said and contest anything later on if needed. If you are not prepared for the call, for example you are feeling very fatigued or in a lot of pain, don’t hesitate to let them know and finish the call, planning one with them at a later date and time. Also, do not feel rushed! Take your time and ask the caller to repeat themselves if you need clarification or some time to absorb the information. Look after yourself guys! It’s your right, your phone, your time.
Number 5: Your current points are not protected
It is important to understand that the appeal of your award can result in you gaining more points, but the tribunal also has the power to take them away. So if you have standard rate and wish to appeal as you believe you should get higher rate, bear in mind that you may end up even worse off after the appeal process. However, it is a power that the tribunal exercise extremely sparingly. Unless a glaring error has been made previously your existing points will usually be safe.
I have a duty to let you know of this possibility, but also I’d like to put it into context. The decision to appeal your award is a very loaded decision for us, because it’s not ‘just’ about the money – there is a lot at stake. The difference between getting higher rate versus standard rate mobility award is the difference between getting access to the motability scheme or not. This is the difference between being able to get out of the house, and not. I mean, if your bus stop is more than 20m away, the distance cut-off for gaining higher rate from the ‘how you get around’ descriptor, you’re kinda screwed. In addition, to automatically qualify for a blue badge, you need to have been awarded points indicating you cannot walk 50m or more. You can still apply for a Blue Badge if you have not qualified for these points, but there’s no guarantee you’ll get a badge.
So you may decide an appeal is essential, or that, given this very small but real chance of losing points, that it’s too risky. To decide, I’d recommend taking a look at whether the points you have so far gained for the PIP activities are sturdy in terms of being accurate or not. Again, ask for advice if you are unsure.
Number 6: Be aware that DWP decisions are being overturned left right and centre!
The success rate of both PIP and ESA appeals has been largely steadily increasing. During the period April-June 2014 when PIP was first introduced, 26% of claimants won their appeals. In the period April – June 2015 claimant wins had climbed to 47%. In January 2016, claimants had a 61% success rate. That’s 3 in 5 claimants overturning the DWP’s decision. Nice odds. And these numbers include claimants who did not have professional representatives, so if you get a representative, your odds will probably be higher. The discrepancy between initial DWP decisions on disability benefits and independent party’s rulings on the same laws is illustrated wonderfully by the fact that 95% of DWP ‘fit for work’ decisions imposed on 200 applicants were overturned by a group of Law students from Bristol. The national average for overturns of this type of benefit ruling during the Law Student’s work in September 2015 was 59%, indicating that when the law is imposed properly by trained representatives, the DwP failings are evident and quite incredible.
So, in my opinion, the default setting if you have a disability which has invisible symptoms and you are not ‘severely disabled’ seems to be to err on the side of the lowest points they can get away with. The government are using a process with ATOS which in effect enforces quotas in the number of people who are ‘allowed’ into the Support Group for ESA. It would not surprise me if a similar process is being used that effectively results in quotas for PIP awards. In addition, the Public Accounts Committee recently concluded that too many PIP and ESA assessments do not meet the required standard, and highlighted specific concerns over the level of service for claimants with fluctuating and mental health conditions. So getting to appeal is, unfortunately, the only way for the law to be applied fairly in a lot of cases.
Number 7: You can get hold of DWP’s records on you
If you decide to appeal, the tribunal service will request a copy of all your PIP records be sent to both them and you. This means you will have full access to the assessor’s notes plus the defence of the points you were awarded by the awarder. From this, you can see and note carefully if anything from the assessment, application form or submitted evidence was either ignored completely or misrepresented by the assessor.
Number 8: 1st Tier Tribunals are relatively informal
In many cases, the DWP does not send a ‘presenting officer’ to attend the hearing. It does depend on the region, and occasionally they do show up, so you should prepare yourself with that possibility, but please do not let this put you off as it is not certain by any means.
The judge is joined by a doctor (usually a GP) and a ‘Disability Qualified Member’ (DQM), and together they will hear your case, each having the opportunity to ask questions. Although formally the tribunal members are of equal status, it is the judge who makes the record of proceedings, advises or directs the others on issues of law, is responsible for writing the statement of reasons if one is required…and is paid the most! In practice It is solely the call of the judge as to whether you should be awarded more (or fewer) points. So, in practice, the judge is by some distance first among equals and the one you most want on your side.
Finally, the hearing will have considerably less formality than a court and often takes place around a table in a simple room (so you can’t pretend you’re in an episode of The Good Wife), but in some places magistrates’ court buildings are used (and then you can!…ish).
Number 9: Get more, specific evidence if you can
If you can get hold of more evidence and more specific evidence, do it do it do it. MS Nurses and/or GP’s can be gold in these situations because they are the people who most likely see, hear and understand how your disability affects you. See if you can have a chat with them about how your disability affects your average day and whether they’d be willing to write a letter summarising this. If you have invisible symptoms, ask your healthcare professional whether they can emphasise these in the letter. Similarly, if you have had any referrals for symptoms or difficulties associated with your disability or mental health, ask your healthcare professional whether they can emphasise these in the letter, including an explanation of why the referrals were requested.
Number 10: Keep it simple
If occasionally, you CAN walk more than 20m without exhaustion (for example), do not offer this information unless asked. In terms of the application, it is inconsequential, because what matters is how you feel for the majority of the time, not occasionally. And it may well affect your assessor or judge subconsciously. I am NOT saying to lie about your condition, in no way am I saying to lie. What I am saying is to bear in mind that your job is to stress what your experience is the majority of the time. I would interpret the questions as meaning ‘the majority of the time’ and make sure you answer in terms of how you are affected the majority of the time, using variations of the example phrases in point 2.
The other point to keeping it simple is, if your condition has not worsened dramatically but you are instead experiencing a normal exacerbation of your symptoms which you considered during your application, do not be tempted to say that your condition has worsened since application. Again, this is down to interpretation – if your fluctuation has already been accounted for in your application, then to all intents and purposes, your condition is the same. If you state that it has worsened, the case will be thrown out and you will be asked to reapply for PIP with your new worsened condition.
Number 11: Do NOT use ‘My Worst Day’ language
There has been an increase of well-meaning but ultimately destructive advice being given, which is to state your symptoms on ‘your worst day’. This is not what PIP is based on and it could, in fact, be used against you. PIP is for how your symptoms affect you the majority of the time.
Most of us play down our bad days, or bad hours, or relapses and recoveries in our heads in order to maintain an optimistic outlook on life. Because of this, you may well need to consider your worse days in order to be more realistic when working on your case. So by all means consider your worst days, hours, or months when working out how your symptoms affect the majority of your time – – but do not centre your whole appeal around your ‘worst day’ – again, consider the majority of your time or 50% of your time.
Number 12: Do not submit conflicting info
Ensure you are not conflicting with any information you have already sent to the DWP or offered during your assessment. Remember, though, that there may be cases where you can offer a different statement in your appeal.
You can offer a different statement in your appeal if, during the assessment, you answered with something that is not true the majority of the time but the answer has been either (i) taken out of context, or (ii) incorrectly assumed to apply for the majority of the time. In this case, it is ok to offer a different statement if your newly-submitted statement does apply the majority of the time. Ensure, though, that you explicitly state that your answer during the assessment applied to something you are able to do occasionally, rarely, or at the least not the majority of the time, or alternatively that your answer was taken out of context.
For further reading
The CAB is my first go-to for brief information and tips on benefits and appeals.
For more detailed guidance, I highly recommend the Benefits and Work website and their guides. The website requires a £19.95 yearly subscription payment to gain access to their guides, but they are absolute gold; so, so detailed. The guides include examples all the way from writing your initial application, to writing letters for mandatory reconsideration, to 50 ways to challenge a PIP medical report. (Hand on heart, I’m not on commission!). From time-to-time they offer a 20% discount so it’s worth keeping your eyes open for that – you can sign up for free to their newsletter which will inform you if there’s a deal.
To submit an appeal to the Tribunals Service, you’ll need to fill out an SSCS1 appeal form. The Tribunal Service also supply a booklet (SSC1A) titled ‘How to Appeal against a decision’. The Tribunal Service website is www.justice.gov.uk.
If I haven’t mentioned any resources that you’ve used during this process and found helpful, please do share. I’d love to hear of more and add these to my Useful Guides Collection (to be created soon!). Different people assimilate information in different ways, so it’s nice to have a selection for all of us to choose from.
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