Question about Disability Benefit
Posted , 17 users are following.
I'm in he process of waiting for a appeal to go to a independant tribunal for Disability Benefit. I've been diagnosed as having severe Cervical Spondylosis - I also have a Myclonic condition [muscle spasms] I'm in pain 24 hours a day - and find it hard to cope with life - The decision makers at the DWP turned me down for Disability Benefit on the grounds that I'm able to walk in their opinion 200 metres before the onset of severe pain.
The question that I would like to ask sufferers of CS is:
Are there any fellow sufferer of Cervical Spondylosis out there that have been [granted] Disability Mobility Allowance?
Reason for the question is: I believe that the DWP dont class this condition as being a disability - Please respond it's very important.
1 like, 262 replies
SES
Posted
Well a DLA doctor is coming to my home on thursday, so watch this space...... lets see what rubbish they say??? anyway thought I would let you all know?
take care everyone
SES
Guest
Posted
Be very careful with the HSP doctor - these people hold the key to you getting the award, If you read the last posting you'll know what I mean.
The very best of luck to you.
AlanX
SES
Posted
Not holding my breath .....
Take care x
Guest
Posted
Sometimes I think that these people put down on their reports what the State want to hear!! They put in little bits for you but not enough for you to get the award.
I've got my fingers crossed for you.
Best of luck Alan X
Guest
Posted
I've got the decision from the Upper Tribunal Service, and as expected they've refused my appeal - but I've got a fantastic document which clearly highlights the biased way that this system works, believe me it's a real eye - opener for future claimants of DLA Mobility.
This was my main reason for taking my case to the absolute limit - The final document is what we all need to read before we attempt to apply for the award I'm going to relay word for word the document onto this site. But it's going to take me several days - so please dont come onto this site until I've finished the results : Alan
This is the first important point made by the Upper Tribunal:
7... I should stress at the outset that the tribunal was concerned with the position as it was on the date that the secretary of state decision maker her decision on the claim ....a date some 9 months before the heaing. This is a clear legal requirement as, in making it's decision, any First -Tier Tribunal must have regard to section 12 (8) (b) of the Social Securites Act 1998. This states that a Tribunal...
This is me talking - please take great note of this next statement:
... \"shall not\" take into account any circumstances not obtaining at the time when the decision appealed against was made\" (emphasis added). This means that the tribunal is always concerned with the claimants circumstances as at the date of the secretary of state original decision, and not the position as at the date of the hearing. So any subsequent deterioration cannot be considered - the remedy for that is to make a
fresh claim
This is me talking - what this means is that - it doesn't matter if you have the meical evidence to back up your claim for DLA after you have done your claim pack - It will not be talken into account at your hearing - (what a system?)
8... I must also bear in mind that there is a right of appeal to the Upper Tribunal from a decision of the First -tier Tribunal but only on a point of law (according to section 11 (1) of the Tribunals Court and Enforcement Act 2007) and not on issues of fact. This means that the right of appeal to the Upper Tribunal is not an oppertunity either to challenge the facts as found by the first Tribunal or to introduce new evidence. This is to misunderstand the purpose of the appeals system. Tribunal judges and members bring various skills to bear in deciding on the facts. I also bear in mind that...
This is me talking - please take note of the next statement.
...the burden of proof is on the applicant. So some error of law must be disclosed before permission to appeal is granted against a First-tier Tribunal decision. I am not satisfied that this Tribunal Statement of Reasons discloses any such error of law in their approach. The tribunal set out their findings and their reasoning concisely and clearly. I will deal with each if the applicants grounds of appeal in turn.
That's all for now - but there's lots more interesting stuff to come, so watch this space folks for the real truth behind the Tribunal appeal system...
AlanX
Guest
Posted
This is the continuation of the Upper Appeal statement:
(1) The tribunal made a procedural error
9...This referred to the applicant's complaint that he had not been given the oppertunity to argue his case orally before the tribunal. In particular,he says that he was not given the chance to read out his closing submission. I have to start with the proposition that the procedure for a tribunal is very much a matter for the discretion and good judgement of the tribunal judge concerned who chairs the panel. The Record of Proceedings concludes with the following: \"CH (judge): Anything else?
APP: have prepared something.Handed it to us.\" This referred to a page 5 document the applicant had prepared for his own purposes as a note for the hearing,described as his \"closing statement\" and now on file. In this document the applicant set out in some detail the varios points on which he took issus with the secretary of state's decision.
10... I return to the point that tribunal procedure is a matter for the tribunal judge. I can quite understand a tribunal judge taking a view that it is not appropriate for either party (wether the claimant or secretary of state) to read out at length a documenet which has been submitted and which the tribunal judge and members are quite able to read by themselves.Tribunals are not like some courts with their formulaic and time consuming procedure with submissions and evidence being \"read on record\". This tribunal had a considerable bundle of evidence which they would have read and previewed beforehand for the hearing. In my experience it would be rare indeed for a tribunal judge to consider it an effective use of time for a clearly argued and typed document prepared by one of the parties to be read out in the course of the hearing.
11. Instead, tribunals take a more pro- active approach, and preview the case before the hearing. Actual case history.
\"Previewing is part of a tribunal's ordinary case management duties to eneble it to deal with an appeal fairy and justly. By identifying. in advance the relevant legal and factual issues which need to be explored, the tribunal is able to direct the parties to the relevant issues and thereby ensure their effective participation at the hearing. In doing so, the tribunal has neither made up it's mind, nor closed down other relevant lines of arguement or enquirey which the parties may wish to raise\"
12. I am satisfied that there is nothing in the ground of appeal - the closing submission was admitted in evidence. it was doubtless considered, but for the reasons the tribunal gave, it was not ultimately persuasive. The applicant may well have felt that the tribunal were firing questions at him. In reality, however, the tribunal woulsd have identified the issues on which it wanted clarification by it's pre-reading and organised its questioning accordingly.
This is me talking: There's loads more of this to come - this is the document that anybody trying to claim DLA Mobility will want to read;
That's all for now - but I'll be back soon.
Alan
PS I discussed it with my GP on Friday, he was not very happy about it!!
Guest
Posted
This is the continuation of the Upper Tribunal Appeal Statement:
13...The applicant also complains about the delay in providing him with a Statement of Reasons for the tribunal's decision and the fact that he was sent a handwritten copy of the Record of Proceedings which he could not read.
14...As to the first point, the Tribunal's decision Notice was dated the same day as the hearing and was presumably prepared at the end of the day and after deliberations on all the outstanding appeals. The applicant applied for a full statement promptly, but was not prepared by the tribunal judge until two months later. That delay may be less than ideal but tribunal's have to manage heavy workloads and files can sometimes take their time in reaching the right destination. This delay is not procedural error.
15...
This is me talking - this next statement is very interesting and would be of interest to Claimants GP's - please take note of what this judge said.
(2) The Tribunal did not have enough evidence to support it's decision
16... This is ultimately a matter of judgement for the First-tier Tribunal. They are the fact - finding tribunal and it's their task to weigh up and evaluate all the material evidence to hand.. They explained why they preferred the evidence of the reports of the DWP doctors for the purposes of incapacity benefit and the DLA rather than the applicants evidence... The applicant complains that those reports were mere opinion, but it is also relevant to note that the GP's evidence was fairly limited, being essentially short answers to the DWP questionaire and the letter listing his patients medical complaints and history.. The GP's evidence did not directly address the specific points which were important for the tribunal (e.g. the criteria for the higher rate mobility) and in any event the weight to be attached was for the First-tier Tribunal. In addition, the DWP reports are based on the combination of actual physical examination, observation without examination of the patient. The Tribunal also did not support the claim, Again, that was a matter for them.
That's all for now - but there's much more to come, and it's all very interesting stuff. I'll be back soon
Alan
Guest
Posted
This is the continuation of the Upper Tribunal statement:
17... The applicant also complained about the Departments reliance on the report for his incapacity benefit claim to decide his quite seperate DLA claim. Certainly in normal circumstances the outcome of an incapacity benefit claim will have no direct bearing on a Disability living allowance claim vice versa. The benefits are designed for different purposes and are subject to different eligibility conditions.
However, that is not to say that evidence relied on in one context is neccessarily irrelevant in another context.
18. The present tribunal followed that approach to the letter and did not commit an error of law.
(3) The tribunal failed to give adequate reasons for it's decision.
19... The basic test for adequacy of reasons in a tribunal decision was set out by Donaldson L J in UCATTT v Brain {1981} IRIR225 where it said that the purpose of a tribunal's reason's \"remains what it has alway's been, which is to tell the parties in broad terms why they lose or, as the case may be win\" Having re-read the tribunal's reasons, and considered the file as a whole, this statement of reasons meets the test. The tribunal focussed on the issues before it - was the applicant entitled to either rate of the mobility component? - and explained why it had decided not. A Tribunal does not have to deal with every single item of evidence in it's reasons.. It needs to explain why they decided which evidence it found persuasive. This Tribunal did that.
This is me talking - There's no point in producing any medical evidence once you have sent in the claim-pack, because they wont acccept anything from the appellant - if you get turned down by the Disability Examiner and have further medical evidence, there is no point in going to a tribunal. The best course of action is to re-apply and do another claim pack.
This is not my advice this is the Upper Tribunal Judge advice - I wasted a whole year in persuing my claim - when all I had to do was apply for another clain form. So dont bother with tribunal's if you have further medical evidence.
20... The applicant is unhappy that he was described as being \"evasive\" by the tribunal. In fact the tribunal took the view that \"at best\" the appellant was genuinely unable to describe what he was able to do, and at worst, he was being deliberately evasive,\" which is not quite the same thing. However, it is trite law that assessments of credibility and reliability are for the First- tier Tribunal and not an appellate tribunal
This is me talking - this means that they can say and do what they please, the appellant has no say in the matter.
That's all for now - the next part is very interesting to us all - so watch this space.
Alan
SES
Posted
The same thing happened to me Alan, I got brushed off I still haven't received their reasons why they refused my claim in the first place from 2006, and after appealing for two years and then submitted two further applications due to misdiagnosis, and my circumstance changed I have been awarded finally what I am entitled to, after three years..... this award is for 4 years.
Good Luck Alan, do not give up mate as you will get there in the end, You are entitled to it!!!!
Take care x
Guest
Posted
Well done for getting what you was entitled to - dont you worry I will not give up, I'm only just getting started on these people. I'm becoming quite an expert on DLA Mobility now that I've finally got all the facts.
Listen to the next part of the Upper Tribunal Statement SES
The continuation:
21... There is, however, one point where I think the Tribunal's reasons are less than ideal. Near the end of the Statement of Reasons is a statement that \" In making its findings and decision, the Tribunal also took into account the expert evidence of the medical member\" In fact, of course, the medical member of the tribunal did not give any \"evidence\" whether expert or otherwise. First it is not usually appropriate barring certain special cases, for Tribunal judges and members to give evidence in cases they are hearing. Second if they do give evidence, then in fairness that evidence has to be seen or heard by the parties, both by the claimant and the secretary of state.
This is me talking - so this is good for me then? they've made a mistake. like hell have they - listen to how they \"wriggle\" out of this one.
22... I am confident, however, that this was merely a \"slip of the pen\" or an inelegant way of saying that in reaching it's decision the tribunal took into account the medical member opinion on the various matters raised by the evidence (just as doubtless the judge views and those of the disability expert member were fed into the process of deliberations) This does not amount to a material error of the law.
This is me talking: Ha-ha- ha- ha-ha -ha Surprise, surprise. So everything is alright then, it was just a \"slip of the pen\"!!!!!!!!!!!!!
23... In any event, the fact that the tribunal's Statement of Reasons might have been improved does not mean that it involves an error of law.
Actual case: Judge Rowland case CIB/4497/1990 (at paragraph 5):
\"It cannot be over emphasised that there is no simple formula for writing reasons for as decision. The minimum requirements are that the unsuccesseful party must know why his or her principle submissions have been rejected and that the process of the tribunal's reasons must be sufficiently cleary outlined to avoid any reasonable suggestion that the tribunal have made an error of law...A statement of reasons may be adequate even though it could have been improved.... What is required by way of reasoning depends very much on the circumstances of the particular case before the tribunal.\"
24... In my judgement this tribunal's Statement of Reasons amply meets the test. There is no error of law on this point.
That's all for now - but there's plenty more to come, so watch this space.
Alan - well done SES X
SES
Posted
it all seems very complicated and maybe if you presented this to a Solicitor he/she may see a way round this, like I said earlier with this benfit it all to do with wording and if you do not answer to these idiots in a particlar way they make their own asumptions..... my theory however, when someon is entitled to this and they do not give in becuase if you do, then you do not need it and so you have to fight for your right so to speak... rubbish system, but its probably all due to spongers and cheats why it is so hard for people that are genuine like you and me.... the system stinks..... and with this new reform I honestly say to save the government money if people have had tests, xrays have consultants and Specialist reports then the government should leave genuine people alone as claiming this is stressful enough, the only people they should be assessing is those that see the doctor now and again for so called depression or a bad back....... We shouldnt have to goto appeals like this and take us three years to get our entitlement...... makes me so mad grrrrr.
Anyway Alan... re-apply and explain what you cannot do ...... You will get there in the end x
Take care x
Guest
Posted
I'm 55 and have had an active life. Unfortunatley go hit by a car when 14 and then again in my 20's, bad luck or what? Also had a couple of motorbike accidents. All od course damaged my neck. Afte years of neck pain I had an x-ray about 15 years ago, degenerative arthritis in upper spine. Various painkillers and physiotherapy over the years but coped with divorce and 2 kids, one with Autism. They are 19 and 21 and live at home with me and my wonderful husband.
2 years ago I was diagnosed with breast cancer. Devestated. Had lump removed, chemo, radiotherapy, and now been taking anti cancer drug Arimidex for a year.
During chemo I developed peripheral neuropathy, pain numbness, tingling in my feet, legs and hands, arthritis got worse. In September 2009 was in a lot of pain, could hardly walk, so as it had been going on for 6 months I put in a claim for DLA. My Autistic son had been getting it at variuos levels since he was 2 so I was no stranger to filling in the forms.
This is where it gets all too familiar to you good folk who comment here. After sending them regular emails since December 2009, I find out in April 2010 after phoning them that they'd sent me a letter in Feb 2010 saying I had been turned down. I obviously didn't receive this letter and was very annoyed that nobody had bothered to let me know as I was still sending them emails asking why I hadn't had a decision.
Anyway I've appealed to Tribunal, this time I'm getting help from the CAB.
It had taken a year but I know have medical evidence that I have peripheral neuropathy and CS with a conclusion that can't be argued with you'd think. Got the results after even more hassle of my Nerve Cunduction Test and MRI. I am seeing the Neurologist in October to get his report. I got the opinion that the Neurologist just saw me as an overweight middle-aged neurotic woman. Overweight cos I put on 3 stone during cancer treatment.
A saw someone last night who is a social worker, although she has problems the system as well.
She put me through the sort of interigation that I can expect on the day of the Tribunal. She said never forget these people are there to stop you getting DLA, and not independant as we are all led to believe.
She is also going to write a report for me and told me to get my GP to amend his report now we have supporting medical evidence and for hubby to amend his and get my non Autistic son to write something. Plus I must write down all the ways my disability affects me from falling, balance, pain. dropping things, you know what it can entail.
Anyway I have been told because of the amount of people going to Tribunal that it won't be before the 1st December.
How do we maintain our sanity through all this? Determination and a bloody good sence of humour
Guest
Posted
Thanks very much SES - I will keep going.
Helenofherts: What a sad story you tell...one thing that I have found out by going to the Upper Tribunal is that- there is no point in producing (new medical evidence) after you have sent in your claim pack, and have been seen by the Disability Examiner. They wont take that into account.
The Upper Tribunal Judge told me that personally - you have to do another claim pack with the new evidence, otherwise you'll be wasting loads of time , like I did. They wont tell you this, because it's in their interest not to.
I was amazed that the Law Centre didn't tell me this - it's like everybody is in the dark about the DLA claim procedure, and the First -tier tribunal system.
I really dont know how - or why I was allowed to go to the Upper Tribunal
court - but the judge did us all a favour by his document. I think that this was the reason why I was allowed to go - it was to find the truth about DLA claims. I was angry at the time but I'm not now, because I've got something to work with, the document that I'm still writing from the Upper Tribunal will give everybody who follows me an understanding of the real system of trying to claim DLA
I was really shocked by the Upper Tribunal judgement answer:
(22) ... merely a \"slip of the pen\" or that it was \"inelegant\"
These are supposed to be \"expert\" people, aren't they?????
I hope that this will help you helenof herts.
Good luck Alan
Guest
Posted
(4) The Tribunal failed to give the apllicant any oppertunity to argue his case orally.
25... This is really the first groung of appeal reformulated, as regards the applicants closing submission, and the ground fails for the same reason. The applicant also complains that the tribunal judge said that they would not look at matters beyond the claim pack (in September 2009) He has prepared his own summary of the exchanges at the tribunal hearing in which he recorded the tribunal judge as saying at the outset. \"we wont be discussing anything past the claim form at the moment but we may come t that latter.\" However, the tribunal judge's note in the Record of Proceedings states \"12/08 Down of date of; intros and indep(endence.\"
26... The applicant told me that although he prepared his account 2 months after the hearing he has good memory. That may be, but I have no hesitation in accepting the tribunal's note in the Record of proceedings as an accurate and contemporary statement of what was actually said. The effective date for the decision is a fundamentaly issue for the tribunal which is well known to all tribunals (see paragraph 7 above.) The note \"12/08 Down to date of \" is simply shorthand for the judge's explanation that the tribunal's powers were limited to considering matters down (to the date of the original decision) in December 2008 (and not only so far as the claim pack)
This is me talking: helenof herts.This is what I've just told you - (The State has told these tribunal's not to accept any further medical evidence once past the claim pack) As the judge said (the tribunal's powers were \"limited\" - It's not the fault of the panel's - their hands have been tied by the State. (Which makes them no-longer independant) They're obviously abiding by the rules set out by the Secretary of State.
So it's pointless going to these tribunal's with further medical evidence
hoping that they will reverse any decision made by the DWP - because it wont happen!!!
That's all for now but there's loads more to come, and it's all very intersting for the people of this country who are thinking about claiming DLA. speak to you soon.
Alan
Guest
Posted
The continuation of the Upper Tribunal Statement:
(5) The tribunal made mistakes in it's Statement of Reasons
27... The fact that the applicant disagrees with the tribunals assessment and conclusions and in particular it's findings of fact does not mean that the tribunal made a mistake in law. In Yeboah V Crofton {2002} IRLR 634, Mummery LJ ( at paragraph 12) set out the constraints that apply where there is an appeal on the point of law.
\"Only the employment tribunal hears all the evidence first hand. The evidence available to the Employment Appeal Tribunal and the Court of Appeal on an appeal in question of law is always seriously and incurably incomplete.
Much as one, or sometimes both, of the parties would like it to be so, an appeal from the Employment Tribunal is not a re-trial of the case. The scope of the appeal is limited to consideration of questions of law, which it is claimed arise on conduct of the proceedings and the decision of the employment tribunal.. The legal points must, of course, be considered in the context of the entirety of the proceedings and the whole of the decision but with an awareness of the limitations on the courts competence to question the evidential basis for findings of fact by the employment tribunal.\"
28... The observations apply equally in the present contex, and so \"First Tier Trbunal\" and \"Upper Tier Tribunal\" can be properly substituted for \"employment tribunal\" and \"employment appeal tribunal\" respectively in the passage above.
This is me talking: I have absolutely no-idea what this means????
The next statement is very important to anybody going to First- tier Tribunals.
29... \"This is an expert tribunal charged with administering a complex area of law in challenging circumstances. To paraphrase a view I have expressed about such expert tribunals in another context, the ordinary courts should approach appeals from them with appropriate degree of caution; It is probable that in understanding and applying the law in their specialised field the tribunal will have got it right: see Cooke V Secretary of State for Social Security {2001}They and they alone are the judges of the facts. It is not enough that their decision on those facts may seem harsh to people who have not heard and read the evidence and arguements which they have heard and read. Their decision should be respected unless it is quite clear that they have misdirected themselves in law. Appelate courts shoud not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently\"
30... There is therefore, limited scope for challenging a First-tier Tribunal's findings of fact on appeal to the Upper tribunal on a point of law, as discussed above in relation to credibility findings. On the basis of the Court of Appeal decision.... such a challengeis sustainable in only four types of case. These are where the tribunal has (i) made perverse or irrational material findings of fact; (ii) failed to take into account and? or resolve; or (iv) made a mistake as to a material fact, which could be established by (objective and uncontentious) evidence, and which results in unfairness.
This is me talking: It's becoming obvious that it's a waste of time challenging a DWP decision by going to a Tribunal - there's more to come. But that will be for another day. I can only take so much of this stuff, it does my brain in!!! but it's very interesting.
Alan