How to avoid having your whole award reviewed at a PIP appeal hearing AKA keeping the existing award safe and asking for more money.
Protecting your existing PIP award when you go to a HMCTS tribunal hearing to contest a DWP decision.
But I've been advised that I could lose what i've already got if I ask for an appeal hearing?
When you go to an appeal hearing to contest a DWP decision in respect of a PIP claim, the generally accepted belief is that the appeal panel will look at the entire decision again and as such the existing award (if one has been made) is at risk of being taken away.
Firstly, you should never be inadvertently at risk of losing your existing award at an appeal hearing because the judge has to tell you if he feels you could lose your existing award and give you the opportunity to withdraw your request for an appeal hearing if you decide you don't want to risk losing what you already have.
Secondly and possibly more significantly, a recent Upper tier Tribunal decision has made it both more difficult for an appeal panel to review the entire award if you do not want them to do so and also, it has made it possible for you to only ask the appeal panel to look at the sections of the award you wish to contest, rather than the whole case.
As we will see, this ruling opens up a new way of approaching your PIP appeal hearing.
A different approach; Taking control of what the appeal panel looks at
The vast majority of appeal cases that are submitted without the aid of an experienced adviser will be submitted without giving the appeal panel any clear direction as to what the claimant is specifically challenging i.e. what descriptors do they dispute and why When this happens, most appeal panels will by default look at the entire award. But lets look at another way of approaching how you manage what the judge and the appeal panel look at.
When you appeal to a Tribunal about a PIP decision, you have the chance to tell the Tribunal the specific things you want them to look at, and those which you aren’t asking them to look at. So you might ask the Tribunal to look at the mobility component of PIP but not daily living, or a particular descriptor.
The DWP responds to every appeal and says what it wants the Tribunal to do. Sometimes it will agree with some things that the claimant (you) says, but usually it disagrees with everything and asks the Tribunal to dismiss the appeal.
The Upper tier Tribunal case (CPIP/1551/2017) was looking at how much freedom the Tribunal has to look at issues that it isn’t specifically asked to look at.
The Upper Tribunal decision said that Tribunals must look at issues ‘raised by the appeal’, that is to say anything specifically raised by the claimant (you) or the DWP.
If the Tribunal wants to look at other issues not specifically raised, then it can do so if it wants to. However, it shouldn’t do so automatically or unthinkingly, but should think about whether it’s right and what reasons there are to do so. In other words, there needs to be a good reason to look at areas not requested by you or the DWP.
What does"good" evidence look like for an appeal hearing? Find out here
How will this work in practice?
No direction provided by the claimant
If you appeal to a Tribunal about PIP and do not say what aspects of your award you would like the Tribunal to look at, the Tribunal will still look at the issues that the DWP ask them to look at, but also at the whole award and make up its own mind on the whole award.
Direction of areas to look at requested by claimant
If you appeal to the Tribunal and only want them to look at one part of your award – for example looking at mobility but not daily living – then the Tribunal must have a good reason to decide to look at the aspects that you’ve said you don’t want them to consider.
This might be because the Tribunal has spotted something important in the evidence, or because the DWP has asked them to look at the issue. But the Tribunal can’t just look at something you or the DWP haven’t highlighted for no reason. If they do, you could get their decision set aside if you do not get the decision you are looking for.
Could providing specific instruction be damaging to your chances of getting the best award possible?
If you fear losing an award they’ve already got when appealing and say to the Tribunal that they are happy with part of your award, or specific descriptors, and state that you do not want the Tribunal to look at those points,the Tribunal will indeed not look at those issues unless they have a good reason to ignore you.
However, what if you have not assessed the existing award thoroughly and missed an opportunity to score more points?
What if the Tribunal thinks you’ve been under-awarded in an area where you’ve said you’re happy?
It is very easy to misunderstand the descriptors, if you don't have detailed knowledge of them or a lot of experience of assessing what the correct descriptor should be.
If you say you don’t want the Tribunal to consider certain issues, then you do run the risk of losing points you didn’t realise you were due.
What should you do to make the most of this strategy for approaching PIP appeals?
We would always recommend that you seek guidance from an experienced benefits adviser if you have any doubt about whether you should be asking a judge to look at all or part of your existing award.
if you approach an adviser and they tell you that the whole award is always reviewed by the appeal panel, ask them about their experience in PIP appeals. If they don't understand or are not aware of what you have just read in this article, maybe consider finding another adviser ;)
Of course if you are appealing a decision not to award PIP at any level, then you may decide that there is nothing to lose and its safest to just let the appeal panel look at the whole award.
Not sure what to expect when you arrive at your appeal hearing or not sure what you will be asked to do? our article that describes what happens at an appeal hearing can be here
Need to remind yourself of what the PIP descriptors are? Take a look at them here
The BASE adviser team will be happy to answer any questions you have on this article or any questions on other benefits that you need help and support with.
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