Tribunal & Legal Challenges - Flawed PIP Assessment

Hi,

First time posting on here. Hope I give the correct info and someone can add input/pointers.
Apologies, this is a long post!

I have endometriosis, diagnosed in 2018, but have struggled with overwhelming pain, two major surgeries and depression and anxiety throughout my life. I also have suspected Sjorgens Syndrome, this has not been diagnosed as I only suspected it lately and had no time to report it to my GP. However at the time of application I listed all the separate conditions making this up and have included formal diagnoses/evidence (severe dry eye, flaky dry skin, dermatitis, etc) and any prescribed and non prescribed medications. I also have a scarring alopecia.

I applied for PIP late last year, firstly it was refused outright. I asked for mandatory reconsideration, and I also filed a complaint about the assessment, more about that later. Then this Spring I was awarded PIP for both mobility and daily living at standard rates but no explanation re why standard rates were awarded for both. I believed the assessment was flawed, so decided to go to Tribunal. I asked for the medical report from DWP three times and they didn't send it. I only received the report in the last few weeks and well after I'd sent my Tribunal papers off by the deadline.

Capita acknowledged in their reply to my complaint that their assessment 'let me down' and that 'it didn't meet the DWP standards.'
I asked what these standards are and how it didn't meet them, but they failed to explain. However I have this letter as evidence of a flawed assessment, which I've sent to the Tribunal.

I would like to add comments and more info re grounds for legal challenges for the Tribunal now I have the medical report. I would like some input as to what I should focus on, if anyone else has been in the position where the HP has essentially lied/made things up. The DWP have also said something in their Tribunal papers that I don't understand, all my questions are below.

I've labelled the assessment section so people can skip reading it if it's too much!

Assessment

During telephone assessment, the HP constantly spoke over me/rushed me along and over halfway through, stopped asking questions to tell me to 'hurry up as HP was low on time.' Yet despite allegedly being time poor, HP carried on for another 45 mins.

I also broke down at several points and HP showed no empathy and failed to give me any time to compose myself. My recording of the assessment shows I was teary and distressed more than I'd previously thought, too.

The audio proves the HP has lied about several things on the report, such as:

1. Claiming I don't take pain medication and saying I told the HP this.
This is categorically false. I was never asked this question, and if I had been, I would have told HP the pain medication I take. Also HP had already asked about this medication, so I've no idea where this info has come from, but it certainly wasn't me.

2. Claiming I have no formal treatment for depression and anxiety.
This is false. I submitted paperwork showing I was booked into attending weekly online anxiety webinars, and I told her I attended live when I was well enough to, and tried to catch up on any missed sessions when I was well enough. There is no counselling available in my area for at least 6-12 months which I again told her. I'm also on prescribed medication from GP. She said I 'confirmed my treatment was not at a set time each week'. This is not true again. She never asked me this question. The paperwork I sent contradicts this claim as well.

3. Claiming I treat alopecia (which is permanent) with a shampoo.
This is a lie. I told HP the shampoo was for dermatitis, and it is in no way related to the scarring alopecia (recording backs me up). Scarring alopecia is permanent hair loss and cannot be treated, only disguised etc. Shouldn't the HP know this?

4. The HP mentioned I broke down very briefly & said I was happy and good humoured. I believe this paints a false impression of my mood. I told the HP I was fatigued at the start and we discussed my depression diagnosis. Yet HP hurried me along, constantly talked over me so HP couldn't hear my answers and made me feel stupid for needing time to process and answer their questions. HP also kept laughing throughout which made me feel embarrassed when trying to discuss my conditions and was totally inappropriate/unprofessional. It also made me feel pressured to show good humour at their inappropriate laughing.

Questions

Due to all these things, I plan to argue that the HP's report is so flawed it cannot be relied upon and the Tribunal should dismiss it. I have already stated this in my Tribunal appeal, however at that time I didn't have the medical report to see what had been written. I now plan to focus on this ground to try and get the report dismissed as evidence.
I will point to the audio as evidence backing me up that the HP has fabricated evidence in their report and/or not considered all of the available evidence. I have already sent the audio to the Tribunal as evidence but have yet to add more comments. Are there any other points I should raise/argue, or is this one ground solid enough?

I'm aware I should not use more than 2-3 legal challenges, or only one ground but argue strongly. So I plan to focus on the strongest one to three challenges. I could also say the HP did not give me time to speak, as they constantly interrupt and speak over me throughout, and the HP failed to write down everything I told them.

The DWP have used the PIP Assessment Report as all of their Source. I believe I sent 20-30 sheets of evidence (diagnoses, hospital letters, surgeries) plus my PIP application which was another 20 or so pages of carefully detailed information about how my conditions affect my daily life, when I applied. Yet they appear not to have used any of it as a Source? Should I use this as another ground to show the DWP have based their decision solely on a flawed report? Or is only a GP or Consultant's report considered as evidence? My letters were all confirmation of diagnoses. I had one old GP letter in there that detailed my struggles with a large fibroid I had, which exacerbated all my endo symptoms. Clearly this was ignored.

In their legal papers, the DWP have said: "The Tribunal are respectfully reminded that DWP do not have the legal authority to change decision/s made by the First tier Tribunal based on error of law / official error and therefore the Tribunal should always be mindful of any Upper Tribunal decisions and apply those as appropriate."

Can anyone please tell me what this means?

Once again sorry for the long post and thanks to anyone who has advice to share! I will certainly update when I have any news to share. I don't have a Tribunal date set yet.

Hi BIS

Thank you very much! I really appreciate all the detail in your reply

1. To answer your question, yes I have a copy of the audio recording. I sent the original CD recording - which I received from Capita - to the Tribunal. No I didn't transcribe it, but I will do so ASAP and upload it to the Tribunal page online if I still can. I have gone through the audio and typed as many notes as possible, so making a proper transcription shouldn't take too long.

3. Yes, I fully agree with you re arguing each ground or descriptor on the PIP Form that I fulfil and why, and letting the Tribunal know how I meet the descriptors is important above all. I should have made it clear before, but I've already followed your guidance in how to draft an appeal and submitted it by my appeal deadline.

I had a brief look at this yesterday, only for the planning and following journeys part, which I have always been confused about how to answer, and I believe what I have already sent is fairly good. It could be made a little clearer though. Am I allowed to edit and re-submit this, now I have received the medical report, for example? Can I argue that I want to re-submit now I finally have the HP's report? I'll check the rest of it later today to gauge if I'm happy with it.

7. Thank you for explaining, but I don't fully understand why the DWP have said this. Are they telling the First-tier Tribunal that the Tribunal needs to cite case law for each descriptor to overturn any decision? Or are they recommending that the case needs to go to an Upper Tribunal, after a First-tier?

Once again thank you so much for your help/advice. I will change my focus to make sure I've explained in my appeal how I meet each descriptor, before going on to look at other things. I'm also thinking of looking up case law examples to bolster some of the descriptors.

Many thanks

PS And I will also go through the HP's report and check what they have scored and their reasons why, before going back to my appeal and cross checking with the audio recording to see if I can say "For this descriptor, I explained how my condition impacts on how safely or reliably I can do X, but the HP didn't write it down/didn't listen, etc."

Hi, I just have a brief question unrelated to most of the above.

In your PIP Tribunal Guide and I think when it comes to challenging PIP decisions, you advise to set out the descriptors and points you agree with and make it clear there's no argument about them, before going into the descriptors and points you don't agree with. This is all fine and it's how I've written my challenge document.

However what concerns me is that when going to Tribunal, the whole award is up for reconsideration, apparently, and this is why everyone says there's a big risk of completely losing your basic award.

Does that mean even the descriptors and points I've agreed with will be looked at again by the panel, and will I be penalised for not 'arguing my case' about them in detail as I have with the others? Will I be expected to discuss them at Tribunal?

Also, I know there's a risk the award will be changed, but does anyone know how likely this is to happen in practice? I hear Tribunals are more sympathetic to Claimants than the DWP which is a plus, but it would be good to know if this is really likely to happen or not. Thank you in advance