The Clinic provides advice and representation in welfare benefit cases for which the Department of Work and Pensions (DWP) administers the benefit system
To give a flavour of how extensive the system is, it is worth noting that more than twenty-three million people in the UK claim benefits. In respect of health, disability and care benefits, the ones which the Clinic provides most assistance with, there are approximately three million claimants. These disability benefits are known as Personal Independence Payment (PIP), Disability Living Allowance (DLA) for children under the age of eighteen and Attendance Allowance (AA) for claimants over the age of sixty-five.
The DWP issues millions of decisions on benefit claims each year. Each of these decisions is a ‘legal decision’ which impacts upon the lives of claimants. All too often the decisions are incorrect. Worse still it is no easy matter for claimants to access legal advice. It is nigh on impossible to get legal representation at welfare benefit appeal hearings.
Over the summer the Clinic has continued to focus its limited resources on challenges to PIP and DLA for children. Here are a few of the cases we have dealt with:-
PIP – A Successful Appeal
On the first day of Welcome Week, the Clinic received the outcome of a PIP appeal for a client, Ms F, whom Graham Tegg, solicitor, and Clinic Director, has helped and represented over the summer.
Ms F is in her late twenties. She has multiple health conditions (both physical and mental). In 2018 she first applied for PIP – on the advice of her consultant. After a long delay of almost a year, her PIP claim was turned down. Ms F was unable to find anyone to help with challenging this decision. In July 2022 she made another application for PIP – her consultant and psychiatrist had expressed surprise that she was not already in receipt of this benefit. After completing the long application form and attending a PIP Assessment with a ‘Disability Analyst’ Ms F was again turned down for PIP. On this occasion Citizens’ Advice told her how to request a review. Ms F sought a review and provided detailed evidence in support of her claim. The DWP maintained that its previous decision to reject the claim was correct. Ms F felt this was wrong and unjust. More in hope than expectation, she submitted an appeal.
The Clinic only became involved at this stage. In fact, it remains a mystery as to how Graham’s name was entered as Ms F’s legal representative. Graham learned of this after receiving a 300-page appeal bundle and a notification of the appeal hearing date!
A meeting was hastily arranged for Ms F to meet with Graham. This first meeting is crucial any PIP case. Going through the PIP assessment process is highly intrusive at the best of times. One of Ms F’s conditions manifests itself as having great difficulty in talking to others. She had already endured being asked by total strangers to describe in detail the difficulties she had. Devastatingly, although she had tried to describe her problems, she had not been believed. Ms F was understandably reluctant and suspicious of yet another person asking her question after question.
Having established a rapport, there then followed a series of meetings in which Graham went through all the papers with Ms F; Ms F felt able to describe in detail her care, attention, supervision and mobility needs, and Graham explained the law relating to PIP including what would happen at the tribunal. All of this takes time, patience, and sensitivity. This is where the ‘real’ work occurs – it can make the difference between winning or losing. This may strike you as a ridiculous statement. Surely the success of an appeal is determined at the Appeal Hearing and is decided by the tribunal judges? This is true, but not to be underestimated is the huge role of the client and their lawyer in a PIP appeal. It is by the client being supported and knowing the PIP criteria and understanding how these relate to their conditions that the client is better equipped to answer the tribunal’s questions. PIP appeals, especially like this one online, are stressful and disorientating. Ms F faced a series of questions such as: “How do you feel when you wake up in the morning?” “You can use a microwave, can’t you?”; “Going outside, how do you manage this?” and more intrusive questions.
Ms F was as prepared as she could be for the hearing. She answered the questions superbly. She became distressed on one or two occasions, but we asked for the tribunal to pause for a minute. The Clinic had ensured that Ms F was not alone in her home during the hearing or afterwards; as we were aware that Ms F would have to speak about hospitalisations, overdoses, and severe mental health episodes.
The decision of the tribunal (which we received in Welcome Week) was that Ms F is entitled to the Enhanced Rate of the PIP Mobility Component (£71/week) and the Standard Rate of the Daily Living Component (£68.10/week) for a period of three years or £21,700 in total over this period. Remember that the DWP had previously insisted that Ms F was not entitled to PIP at all!
Talking to Ms F a few days later, after receiving the tribunal decision, she said: “I can’t believe it. I thought it was all pointless. I didn’t tell you this but before you rang me up that first time, I had written to the appeals service to ask them to withdraw my appeal because I just couldn’t face it. Lucky for me I think I sent it to the wrong address.” This underlines the need for people to have legal representation in these cases.
Technology delays disability benefit appeal – Going through the PIP appeals process is stressful enough – even more so when the technology goes wrong. Vivien is helping a client with her PIP appeal after her claim was rejected. Since Covid the courts have increased the use of telephone and video hearings; however, they don’t always work! In July this year, in the middle of a telephone tribunal hearing that Vivien and our client attended, the judge suddenly stopped the proceedings, stating they could not hear our client when she spoke because of interference on the line. Our client had to wait until September for another telephone hearing which lasted well over an hour, and which was stressful and challenging for our client. We await the Tribunal’s decision.
Appeal to the Upper Tribunal – Our client received Disability Living Allowance (DLA) for her disabled child. She recently re-applied (potentially to receive a higher amount) as the child’s condition had worsened. The DWP’s response was to terminate the while of the child’s disability benefit. With Graham’s assistance she appealed, and the DLA was reinstated in part. Graham has made an application to the Upper Tribunal on grounds that the First Tier Tribunal made errors of law when deciding the case. The Upper Tribunal has set aside the first tribunal’s decision, and the client awaits a further hearing in a few weeks’ time.
Client facing multiple legal problems – Graham assisted the parents of a child with severe disabilities get Disability Living Allowance (DLA) – bizarrely the Tribunal awarded the mobility component of DLA – even though the child has no actual mobility problems at all. He nevertheless needed that benefit so that someone else could always be with him; he is a child with a ‘severe mental impairment’ who without someone with him at all times was likely to engage in ‘harmful behaviour’ outdoors. He has been awarded £73 per week- at least until he reaches sixteen.
During the work on this case, Graham found out that the child was not in school, and that the parents had recently lost an appeal to the Special Education Needs and Disability (SEND) Tribunal. For that appeal, the client had had legal aid, and an experienced solicitor and barrister representing, paid for by a large charity. They advised that there were no grounds of further appeal. Graham agreed to look at the detailed Statement of Reasons (and at the client’s 800-page evidence bundle) and identified some potential errors of law. The First-Tier tribunal sternly rejected Graham’s arguments, but the client wishes to pursue her application further – to the Upper Tribunal. Those judges initially rejected the application but invited further written representations. Graham prepared those – and the case is now going to a full hearing. That client has been energised by the experience and is working with her support group on how to help other people who have SEND appeals.