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  1. #1

    Upper Tribunal Permission to appeal Query UPDATE!!!

    Hi, Long Time since I have been on here, But I am sure someone senior can help!

    I have taken My Sons appeal for PIP, all the way to the upper Tribunal.
    Last Week I received a letter from the Upper Tribunal it is the Notice of Determination of Application for Permission to Appeal.

    It states

    I grant permission to appeal

    1) The appeal below concerned entitlement to a Personal Independence Payment. The grounds of appeal seem to Me arguable.

    2) The secretary of state shall make submissions as to the points raised and generally

    3) I give directions below for the further conduct of the appeal below.

    1) The respondent is directed to provide a response to the appeal within one month of the date upon which this determination is sent to Her.
    2) The response should deal with the matters set out above and the grounds of the appeal.
    3) The appellant may provide a reply to the response within one month after the date on which the response is sent to him/his representative
    4) If the appeal remains contested the parties should indicate whether they wish for an oral hearing.
    5) Following receipt of submissions the matter will be put before Me or another Judge of the upper tribunal for further directions or a decision.

    What are the likely scenarios that may follow!

    Thanks for any imput! This has been a long journey so far of 20 months!
    Last edited by dukedog; 04-11-2019 at 07:24 PM. Reason: CHANGE TO UPDATE ON TITLE

  2. #2
    Senior Member nukecad's Avatar
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    1) to 5) spells it out, but to translate:

    1) The DWP have a month to give the UT their argument / point of view.
    2) The DWP's reponse should only be about the point(s) that you have appealed to UT.
    3) You have a further month to reply to what the DWP say.
    4) If you still disagree then you (or the DWP) say if you want a hearing or if you are happy for the UT to make a decision using the evidence provided.
    5) The UT will then make a decision or schedule a hearing.

    Once the UT make their decision there are 4 possible outcomes:
    • They could decide that they don't have sufficient powers to rule, and kick it up to a higher court. (Unusual but it can happen, and occasionally does).
    • They could agree with the DWP and dismiss your appeal. (But may give you leave to appeal to a higher court).
    • They could agree with you and order that a First Tier Tribunal sits again to consider the case properly.
    • They could agree with you and make an award. This is pretty rare, they usually send it back to FTT. (They may give the DWP leave to appeal to a higher court).

    So you still have at least another 2 months, for evidence from the DWP and then your reply to that, then longer for a hearing/decision to be made.
    (And then maybe another FTT).

    As someone once said "The wheels of Justice grind slowly".

    All you can do is keep plugging away.
    Last edited by nukecad; 06-15-2018 at 01:38 PM.
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  3. #3
    Thanks Nukecad! I kinda thought that's how it would play out, but good to get confirmation.

    The actual letter was dated 14/05/18 so maybe only another month or so before I know what the DWP'S response is.

    Should be interesting as to what they come up with next!,

    So far it has progressed like this

    1) Assessor awarded 9 points and 3 year review
    2) Dwp case Manager changed it to 3 points ( and awarded 2 points for a descriptor that the assessor did not give any points for! )
    3) MR put in and was then awarded 7 points, again different descriptors which had been given points for removed and points given for other descriptors!
    4) Appeal lodged, Tribunal awarded 6 points Again different to other decisions!
    5) Appeal to upper tribunal

    If the 6 people who have looked at My Sons claim were in the same room together, He May well have ended up with 16 points altogether!

    So Who knows where it will go next!

    To be honest the original assessor awarded points where I believe they should have, although I felt He should have got 2 more, but that wouldn't have made any difference to the initial award if it had stood.

    Will let You know what happens!
    Last edited by dukedog; 06-15-2018 at 05:55 PM.

  4. #4
    Update!!!

    I have today received the Secretary of states reply.

    it states that
    1.2 Permission to appeal has been given by the Upper Tribunal Judge. i support this appeal

    1.3 If the UT judge accepts My submissions that the FtT have erred in law. I invite Him to set aside their decision and remit the appeal for rehearing by a differently constituted FtT, with appropriate directions for its determination.

    1.4 If the UT judge accepts My submission in its entirety, I consent to a decision without reasons as provided by Rule 40(3) of the tribunals procedure ( Upper Tribunal) rules 2008.


    Secretary of States Submission

    It is my submission that the FtT Have made insufficient findings of fact and provided inadequate reasons in relation to daily living activity 1. Blah Blah Blah.......

    Now I was arguing amongst other things that regulation 4 had not been applied correctly with regards to descriptors 1, 2 3 4 and 6. as He had been awarded points from the HCP for activities 1, 3, and 4 plus I felt that 2 and 6 applied.

    Obviously they are not accepting that point,

    but if the 2 points are awarded for activity 1, along with the points given by the FtT, for activites 8c, 9b, and 10b, My Son would have 8 points and qualify for Standard daily Living.

    Question!!

    If I accept the full submission and so does the UT judge, Will He award the points the FtT have already made plus the extra 2 points for descriptor 1 without having another tribunal. So giving 8 points and standard award.

    As mentioned before, I agreed with the original report awarding 9 points and could maybe have argued for an extra 2, so the level of award would have been the same.

    I don't really want to put My Son through another tribunal and although I still am perplexed that everyone keeps coming to different conclusions and assumptions, I am happy to just end it now with the standard Daily Living.

    What do You think Nukecad?

  5. #5
    Senior Member nukecad's Avatar
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    Well those 3 paragraphs you quote repeat what I said above.

    1.2 You now have permission to appeal to the UTT.
    1.3 The UTT could agree that the FTT ered in law and order that a different First Tier Tribunal sits to consider the case again.
    1.4 The UTT could agree with your argument and they have permission to make an award themselves without sending it back to the FTT.

    The interesting thing there is that as quoted the SoS seems to be virtually directing the UTT to find in your favour:

    "I support this appeal", "accepts My submissions", "accepts My submission in its entirety", "It is my submission that the FtT Have made insufficient findings of fact".

    Although I'm not familiar with these letters that wording seems quite strong to me.
    (You might want an opinion from a local law centre or similar).

    So it's now up to you to decide if you want to appeal to the UTT.

    Unfortunately that's a decision no-one can make for you.
    We don't know your son and how this might affect him.
    And of course we have no way of knowing just how/what the UTT would rule.

    PS. Does it say anwhere which SoS wrote that?
    ie. Secretary of State for HMCT or something like that.
    Last edited by nukecad; 06-20-2018 at 04:42 PM.
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  6. #6
    Yes, that is the impression I have got, In the Blah Blah parts it goes on to say about the original HCP's report and why was it disregarded, About Why didn't the FtT rely on clinical letters, Why was what wrote in the original questionnaire ignored especially as it had been backed up with Psych reports etc.., 2 pages worth...

    It really does give the Judge everything He needs to make His Own decision based on the evidence provided

    The letter is signed off by Clare Keates on behalf of the secretary of State

  7. #7
    Senior Member nukecad's Avatar
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    I can't find much from my phone, but she seems to be a secretary for various Secretarys of State, if that makes sense?

    I'll look later when I'm on a computer not a phone.

    Edit
    TBH the heading at the top of the letter should give a clue who she is acting on behalf of.
    I'm guessing it says HMCTS, or Her Majestys Courts and Tribunal Service.
    Last edited by nukecad; 06-20-2018 at 06:18 PM.
    I don't know everything. - But I'm good at searching for, and finding, stuff.

    Migration from ESA to Universal Credit- Click here for information.

  8. #8
    The Full Heading is

    Secretary of States Submission to The Upper Appeal Tribunal
    ( Administrative Appeals Chamber )

    Name of Respondent Secretary of State for Works and Pensions

    And the UT Judge is Paula Gray
    Last edited by dukedog; 06-20-2018 at 06:43 PM.

  9. #9
    Senior Member nukecad's Avatar
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    So that's from the SoS Works and Pensions, the 'boss' of the DWP.

    It's the DWPs (the Respondent) argument to the UTT.
    They seem to have replied very quickly, but that may be because they think they have no chance?

    In fact it says that the head of the DWP "supports this appeal" and is saying that the FTT was wrong and that the UTT should rule so.

    I can't see the UTT going against that.

    PS.
    I've has another read and checked out that "Rule 40(3)" and I'm now not too sure about what I said above about the UTT making a decision themselves.
    Rule 40(3) is about whether they have to give a written decision or can give an oral decision.
    Re-reading the SoS's submission he is saying that he agrees to an oral decision if they send it back for another FTT, if they rule something else he wants the decision in writing.

    I would say the most likely outcome now is that the UTT will order that another FTT is heard and will give 'appropriate directions' to that FTT

    Now I was arguing amongst other things that regulation 4 had not been applied correctly with regards to descriptors 1, 2 3 4 and 6. as He had been awarded points from the HCP for activities 1, 3, and 4 plus I felt that 2 and 6 applied.

    Obviously they are not accepting that point,
    The DWP are expecting a new FTT to be ordered and so will be saving any arguments against this for the new FTT
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  10. #10
    Thanks Nukecad,

    I now have to decide to either allow the UT judge to give His decision without reasons, which can speed things up, or ask that the judge give full reasons for His decisions which apparently can take longer.

    I am probably going to ask for the full reasons as I am still mystified about how 6 so called professionals can keep looking at the same evidence and all coming up with different opinions. Pip assessments are supposed to be based on Evidence, A face to Face meeting/Assessment, and applying the regulations, All of which in My Sons case apparently mean different things to the 6 different people who have looked at His claim.

    At Least if I ask the judge to give full reasons on His decisions, it may shed some light as to how all of this has got this far and at least direct the next tribunal as to how to proceed next.

    Well I have waited 20 months, May as well go as far as I can.

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