The Upper Tribunal has recently made an important decision (CPIP/1469/2017) that makes it much easier for claimants to win their PIP appeal. This is a long post but if you want, you can skip down to the ‘What this Means For You’ section for a summary.
The actual issue in this case was about whether the Tribunal had properly considered the claimant’s evidence about cooking, but in allowing that appeal the Upper Tribunal judge took the opportunity to re-state a very important principle of law for Tribunals.
If someone applies to overturn a Government decision (called a judicial review), usually the court doesn’t look at whether the decision was wrong or not. Instead, it asks whether the decision was legally possible and a reasonable one for Government to take on the evidence. The person challenging the decision must prove that Government acted illegally or unreasonably in making the decision. This is much harder than actually proving the decision is ‘wrong’.
Say Government decides to build a road. Local people don’t think the road is needed. They go to court to argue that. But the court says, it doesn’t matter if the road is needed or not. What matters is whether it’s reasonable for Government to decide that it’s needed. The court works on the principle that Government can do what it likes, within the law, as long as it’s acting reasonably.
The issue that arose in the Upper Tribunal case was that the First Tier Tribunal had looked at the DWP’s decision on each descriptor and applied this ‘judicial review’ principle. In other words, the Tribunal panel asked itself the question: ‘was this point score so unreasonable that we ought to change it’. As they didn’t think the scoring was so unreasonable as to need changing, they turned down the appeal. They didn’t ask whether the point score was right, just whether it was so obviously wrong that they should intervene.
WHAT THE UPPER TRIBUNAL RE-STATED
The Upper Tribunal said that the proper role of a Tribunal in a benefits case is to make its OWN, NEW decision about what points are justified on the evidence. In legal terms, this is referred to as a ‘de novo’ decision. The Tribunal is not there to look over the DWP’s shoulder and assess whether the department had acted reasonably. Instead, the Tribunal must start again and make new findings of fact, based on ALL the evidence, and work out the points arising from those findings of fact, as if it was the original decision-maker. The UT went on to say that this had always been the role of Tribunals.
This is a really important point. Say the Tribunal starts out from the idea that the DWP can do what it likes as long as it acts reasonably. It follows that, where there’s any room for a judgement call, the Tribunal is probably going to go with the DWP. It also means that you, as the claimant, have to not just prove that the DWP is wrong, but is ‘unreasonably wrong’.
For example, let’s assume a claimant says they cannot peel vegetables but can do other activities of preparing and cooking a meal. The DWP (advised by an assessor) says an aid will solve that problem and 2 points should be awarded under PIP descriptor 1b. The case goes to Tribunal and the panel asks itself if the DWP acted unreasonably in assuming that an aid is enough. You as the claimant must prove not only that you can’t peel vegetables but that the DWP were unreasonably wrong is saying that you can. The panel decide that it’s reasonable for the DWP to say that, and don’t change the award.
Under the proper approach, the Tribunal should take note of the fact that the DWP awarded two points for preparing and cooking a meal, but not use that as its starting point. Instead, it should look at all the evidence it has about your ability to prepare and cook a meal and decide for itself what points are right. They look at your evidence alongside that of the DWP, giving each set of evidence the value it deserves, and come to an expert decision using the experience of all members. Using this approach, the Tribunal accepts that you cannot peel vegetables and therefore need the help of another person to prepare and cook a meal from fresh, awarding 4 points under PIP descriptor 1e.
The critical importance of this Upper Tribunal statement is that it puts your evidence on the same level as the DWP and assessor’s. The panel is perfectly free to say that they believe your GP, or consultant, or you yourself, rather than the DWP or assessor, because they are making a new (de novo) decision using all the evidence.
WHAT THIS MEANS FOR ME
The Upper Tribunal have said that Tribunals must look at all the evidence and make a fresh new decision on each claim. Tribunals are not just there to say whether the DWP are wrong or not.
This means that your job at the Tribunal is first and most importantly to give the Tribunal the evidence they need to make the right decision. Because the Tribunal will look at your evidence as potentially being just as important and believable as the assessor’s, you don’t have to spend a huge amount of time disproving the assessor or DWP. You should certainly highlight obvious mistakes by the assessor, but mostly you should spend your time providing evidence for the panel to use to give you the right award.
The Upper Tribunal made this decision on 20 October 2017 but it’s a clarification of the law rather than a new definition. This means that this decision applies straightaway to all claims, mandatory reconsiderations and appeals.
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