Department for Work and Pensions (“DWP”) lost First-tier Tribunal (SEC) appeal (of decision not to pay Personal Independence Payment (“PIP”))
By John Brace – Appellant
First publication date: Thursday 7th April 2022, 12:01 (BST).
Previous reports on the prior hearings (both of which were adjourned) in this same appeal held on 14th December 2021 and 28th February 2020 at the same venue can be read at either of these links (which will open a new page).
Appellant: Mr John Brace (unrepresented)
Respondent: Secretary of State for Work and Pensions (“DWP”) represented by Miss Green (Presenting Officer)
Case number: SC062/19/01113
Location: 76 Hamilton St, Birkenhead CH41 5EN (ground floor)
Mode of hearing: Hybrid (face to face/phone)
Date and time of hearing: Tuesday 15th March 2022, 10.00 am
Type: First-tier Tribunal (Social Entitlement Chamber)
First-tier Tribunal Judge: Judge Jenny Frances Lester-Ashworth
First-tier Tribunal Medical Member: Dr Simon Jerome Lundy
First-tier Tribunal Disability Member: Mrs M Walton
As I waited in the waiting area in the corridor before the hearing started, it was shortly after 9.40 am (just over two months) since Leonora had died and I felt upset. Leonora had represented me from the start of the appeal in November 2019 and during the previous two face to face hearings in 2021 and 2020) it was strange to be at this final hearing without her. This was an appeal of a mandatory reconsideration decision not to award PIP made by Jo Brown dated 24th October 2019.
The hearing started with the Tribunal Clerk starting the recording and reading out the case number and who was present.
Judge Jenny Lester-Ashworth introduced herself and who the Tribunal Panel were (First-tier Tribunal Medical Member (Dr Simon Lundy) and First-tier Tribunal Disability Member (Mrs M Walton) as well as Miss Green (who was a Presenting Officer representing the DWP).
Near the start of the hearing, Judge Jenny Lester-Ashworth expressed her condolences at the death of my representative and asked me if I needed an adjournment to secure alternative representation. I indicated that I didn’t (want the case to be adjourned).
The Judge explained what a palantypist did, that a laptop had been provided (which was to my left) so I could view what the palantypist typed, so I’d be able to see what people were saying. A laptop was provided, which I was asked to switch on, log onto my email account and click on the link that I’d been emailed by the Tribunal Clerk.
After I tried to log in to my email account on their laptop, as it was a laptop I hadn’t used before, the two factor authentication meant it would ring my home phone number to confirm it was me using it. After using my own laptop, I managed to log into my email account and click on the link (the link had been emailed to me at 10:23 am by the Tribunal Clerk (the hearing had started at around 10:07 am)). The link was to https://www.streamtext.net/player?event=CLAR15032022.
The plan (before the hearing) had been for the palantypist to join the hearing virtually by phone (rather than being present in the hearing room), however the Tribunal Clerk hadn’t been given the palantypist’s phone number to join the palantypist over the phone to the hearing, so this proved to be impossible and all I got to see was a blank screen with no words appearing on it (I’ve since made a complaint to HMCTS about this).
Alternative ad hoc arrangements (to make up for this) unfortunately had to be made during the hearing which involved the Judge sitting next to me repeating what people said.
The first series of questions were from Dr Simon J Lundy about the weight of objects I could carry, function in both my right and left hands, pain, physiotherapy, painkillers, side effects, how often I used my asthma inhaler and balance issues.
After the break it resumed again at 11.17 am with more questions about migraines, a previous appointment, migraines (again), balance, falls, medical appointments, the wrist injury in 2012, driving, how I had got to the hearing, my public transport pass, whether I needed assistance with planning unfamiliar journeys and how far I could walk in metres.
Dr Lundy asked further questions about the PIP assessment (this assessment was by Ms Faye Meagen (a learning disabilities nurse) on 5th August 2019). The first 90 minutes of the PIP assessment had been recorded on audio tape by Leonora and a transcript was at pages 149-168 in the hearing bundle. There was then a further break, after the break the hearing resumed at 12.20 pm.
Further questions were asked by Dr Lundy about travel by public transport, how often I drove now by car, hearing problems, planning, what sort of stories I covered as a journalist and what my role entailed and whether there were any conditions on my driving licence. He asked further questions in addition to these.
The Judge told Miss Green that they would be looking at three numbered areas (which she specified) of the daily living component and asked if the Presenting Officer wished to say anything?
Miss Green replied.
I confirmed I had problems in all three areas.
After some more comments by Judge Jenny Lester-Ashworth there was a break for lunch at 1.55 pm and the hearing then restarted at 2:44 pm.
Judge Jenny Lester-Ashworth explained that the appeal had been successful, that it had been won and that the daily living element of PIP would be awarded at the enhanced rate from 2nd October 2019 for 5 years (with an end date of 1st October 2024) but that there would be no award for mobility.
She continued that DWP would need to process the decision and would be in touch. Judge Jenny Lester-Ashworth continued saying that if I had not had payment of the back payment owed within 28 days, she suggested that I contact DWP as it could take between four to six weeks for DWP to process.
Judge Jenny Lester-Ashworth then ended the hearing with some closing comments.
The decision notice issued as a result of the hearing stated,
“1. The appeal is allowed.
2. The decision made by the Secretary of State on 02/09/2019 is set aside.
3. J Brace is entitled to the daily living component at the enhanced rate from 02/10/2019 to 01/10/2024.
4. J Brace has severely limited ability to carry out the activities of daily living set out below. They score 12 points….”
At the time of publication (7th April 2022) three and half weeks after the hearing DWP have yet to make any payments of PIP to myself.
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