Tribunal & Legal Challenges - Flawed PIP Assessment

Hi MDBond,
Ok,
This is the time line.
1.Tribunal hearing
2.Decision
3. Within one month of hearing write
and ask for record of proceedings and written statement of reasons.
4. WSOR arrives (may take a while)
5. Within 1 month write in and request set aside
(Stages 3 and 5 and self referral to UT under stage 7c can be made as a late request, up to 13mths late, but you will need to show good cause. More so if very late request , is made.)
6. Tribunal considers
7. Decision
a. Agree to set aside and re-hearing is set up- new panel, totally fresh hearing
b. Agree to set aside but because there is an important point of law or something complex - case is sent to Upper Tribunal for decision
c. Not set aside - but you can then make your own application to Upper Tribunal if there is an error of law - within 1 mth
8.If the case is referred to UT they can either decide the case themselves or send back to First tier tribunal for a completely fresh hearing.

The suggestions made by myself earlier are for possible errors of law - these are about the sort of things that generally could comprise an error of law, and are particular things to look at based on your explanations of what's happened.
The WSOR is the crucial factor here.
Memory can play tricks. We have all been to meetings or had conversations, and you are convinced someone said something or acted in a certain way. Listening to the recording and reading the WSOR will confirm whether your theory is correct, and crucially will provide solid evidence of this.
The WSOR should fully explain the decision- the legal test/s used, what evidence was relied upon, and why.
The legal tests are obviously set down in law so no room for variance, and the requirements are all set down in the members guides.
Evidence has to be identified and explained.
There are various things that could be evidence for the tribunal
a. What you say either orally at the hearing or within claim form or submissions.
b. Evidence from someone else- eg friend at hearing
c. Documents eg medical report from GP.
d. Direct evidence eg a photo or xray
e. Assessment report
f. Observations at hearing - but these have to be explained and you should be allowed to comment- eg saw claimant walk 20 m into hearing room without a limp. Brisk pace.

You don't need corroboration at a tribunal (unlike eg in criminal courts )
However just because you say you have a bad leg doesn't mean it's true. You could be lying, you might be genuinely mistaken or delusional.
The tribunal will consider how you give your evidence and then weigh this. Your GPS report will help to support your evidence, the xray or mri photo will provide stronger proof still.
However, maybe you say you are disabled. The assessment says not.
So the tribunal will have to decide if they believe you, maybe you are exaggerating, lying etc if they feel this is the case then they will have to explain why it is they don't believe you. They might believe part of what you are saying but not all, again they need to explain.
GP report and assessment report conflict.
Both could be wrong or one is right one is wrong? Tribunal can decide either way, but they can't just say 'we accept the assessment report - there are no disabilities', but ignore your GP confirming your problems. And, what about the xray why don't they believe this!
So, eg if every time you answer a question WSOR says disability is exaggerated further the tribunal said 'claimant prone to exaggerate we believe she has done the same with her GP. Therefore GP report appears to overinflate nature of disability. Assessment lasted 2 hours and claimant has not disputed the conclusions this. Therefore we accept assessment report and conclude no disability...' This might not be the conclusion you agree with, but there is a reasonable explanation and hence this is unlikely to be an error of law.
Using the same example, you are sure you don't exaggerate or overinflate with each answer. So you go back to recording. You hear the following.
At 1 min 40 Qu. How far can you walk without being breathless?
A. 35 m
2.57min Qu. Can you confirm your walking ability again?
A. Yes. It's as I said its 35m. Its the distance from the door to the car.
7.15 Qu. So you say you can walk 50 or 60m to the bus stop?
A. No, I never use the bus, I only go as far as the car which is parked about 30 or 35m from the door.
Similar pattern of questions and answers over various topics.

In the example there is no exaggeration, you maintain it's the same distance. Hence whilst the explanation of exaggeration given by the tribunal could be reasonable it is not borne out by the evidence- the tribunal have ignored what has been said. This could comprise an error of law as they have not based their decision on actual evidence.
You just need to look for discrepancies in evidence and WSOR. The paperwork also comprise evidence so cross reference that too.
The recording will also give a clear indication of the manner of the tribunal and vitally your reaction. This could also indicate a perception of bias if brusque condescending or intimidating questioning etc
I hope this helps.
Please don't worry about taking uo our time - we are here to help!
LL26

Hi MDBond,
Just a quick response. (And yes your last post about the hearing process resonates well with my experience.) What I just want to say is this. Rule 2 Tribunal Rules Overriding objective to deal with cases fairly and justly. See here
www.legislation.gov.uk/uksi/2008/2685/made

What more do I need to add?
LL26

Hi MDBond,
After the WSOR arrives and you have identified any error of law you can send in a request to set aside/request for leave to appeal to the Upper Tribunal (mention both). There is every possibility that if there is a strong error of law that the District Judge will accept this. But even if not it doesn't matter because you can fill out the UT1 form and pursue the case at UT. So try not to overthink, take it one step at a time.
LL26