More and more social security claimants are having to rely on appeal tribunals to get what they are entitled to.  But it is not an easy process to cope with.

We have produced a Tribunal Guide  to either help you do your own appeal, or to understand what to expect if you have instructed KDR.  

Tribunals are increasingly taking a tough line on existing awards appeals, with several claimants coming to us having been warned that they would put their whole award at risk if they proceeded.  That is another way of saying, "don't waste any more of our time", but tribunals are not infallible and it appears arguable that warnings may be over-used in an overloaded system.  

Generally, it feels a lot more formal than it was, "back in the day", perhaps an inevitable result of bringing social security into the wider courts system.  This change was coupled with calling tribunal chairs "judges", which makes no sense as the other two members of a three member panel have the same standing, but are not called judges. 

All trends are towards making professional representation more and more important.  We find ourselves increasingly having to ask for help from barristers.  Fortunately we have excellent support from Landmark Chambers, who we find are the leading chambers for social security.  Without them we would have been unable to cope with a recent Three Judge Upper Tribunal hearing regarding the correct approach to mobility activity 1 for mental health based claims, the outcome of which is expected next year.  We will share that when available.  It will help clarify the law for better or worse.  

An interesting development of KDR work over the last few years has been our development of official error corrections of benefits payments. These occur when a mistake by an official acting for the Department for Work and Pensions (DWP) deprives a claimant of their entitlement. The usual process is to apply to the DWP for the error to be corrected and then, if it’s not, to appeal. Unfortunately it is very far from straightforward with some ultimately successful cases being struck out and then reinstated along the way.

The most common kind of Official Error for Personal Independence Payment (PIP )is when an unlawfully harsh interpretation of the PIP scheme is implemented. Such practices can result in the Upper Tribunal ruling a different approach is required in law than the one previously taken by the DWP.

The most striking of these in recent times was the 2017 decision ruling that “safely” as defined in regulation 4(2A) and 4(4) of the Social Security (Personal Independence Payment) Regulations 2013 does not mean something being "more likely than not" but rather the severity of the harm that could occur also has to be taken into account (RJ, GMcL and CS v Secretary of State for Work and Pensions v RJ (PIP) [2017] UKUT 105 (AAC)).

This forced the DWP to launch a reviews program often referred to as "LEAP", standing for Legal Entitlement and Administrative Practices. This has only covered claimants actually awarded PIP and whether they should have been awarded it as a higher rate. However, it may be that people without any award at all should also be benefiting from this program but are not currently. We are keen to hear from epileptic, deaf and severely visually impaired PIP claimants who believe they were unlawfully deprived of PIP prior to 9th of March 2017, perhaps only getting it on a later reclaim or not getting it at all.

Please note that for any application to correct an old claim to be successful there has to be a very clear error of law by officials. A standard refusal of a claim cannot be remedied as a normal appeal would be out of time. If you did appeal at the time and lost then no correction will be possible.

The Upper Tribunal has awarded the higher rate mobility component of Disability Living Allowance (DLA) to a KDR client with severe ADHD with low IQ, speech and language difficulties, behavioural issues, anxiety, low self-esteem and autistic spectrum disorder traits.

The appeal was supported by the Secretary of State for Work and Pensions who had commissioned a specialist medical report to help them decide whether to do so.

The case hinged around whether ADHD could constitute a “state of arrested development or incomplete physical development of the brain” under regulation 12(5) of the Social Security (Disability Living Allowance) Regulations 1991. In this particular case the Upper Tribunal decided that it did.

To get higher rate mobility on this basis any claimant must also have “severe impairment of intelligence and social functioning”.  It’s also only possible to get higher rate mobility via this route if higher rate care is also in payment.

It is likely that this judgement will only benefit children at the most extreme end of the ADHD spectrum. To get higher rate mobility a claimant must not only demonstrate “severe mental impairment”, but also very severe behaviour problems.

You can read the full judgement here.

Proposed changes announced last week by Chancellor of the Exchequer, The Rt. Hon. Rachel Reeves MP, hatched with Secretary of State for Work and Pensions, The Rt. Hon. Liz Kendal MP are unworkable.

They propose that all PIP claimants from some point next year will need at least one four points descriptor to get PIP. This could only conceivably apply to new claimants.

This proposal would have arbitrary and perverse results. This is because many severely disabled people get the daily living rate through aggregating 4 or more 2 points scores. A common combination being needing an aid to cook, wash/bathe, use the toilet and dress / undress. Some wheel-chair users have this combination.

The proposal as announced would therefore appear to be discriminatory against physically disabled people, as opposed to, say, sensory impaired claimants who would be more likely to have at least one four points plus descriptor. For example, a deaf person needing communication support will always have at least one four points descriptor.

Any changes along the lines proposed would likely swamp the DWP with applications for reviews, with mandatory reconsideration waiting times already reaching 15 weeks. The appeals system would likely be similarly even more overwhelmed than it is already. Many appellants are already waiting in excess of 12 months for first-tier hearings.

Accordingly the proposals appear unworkable. They also unfairly penalise disabled people who already struggle with other pressures, such as difficulties accessing services, health-care and employment.

Expect resignations from those responsible for these unfair, unreasonable and unworkable proposals.

Please write to your MP to point out the situation – a template letter can be found here. Sorry it is PDF because our website doesn’t accommodate word documents.

Kester Disability Rights (KDR) regularly has cause to enlist the help of clients' Members of Parliament.

Despite all the negativity in the media, we have found every MP we have ever contacted to be very helpful and supportive.  This covers MPs in many parts of the UK, and indeed MSPs. 

MPs now face risks more acute than ever before with both a Conservative MP (David Amess) and a Labour MP (Jo Cox) having been murdered in the course of their work for their constituents in recent years. 

We have found MPs from all parties to be equally committed to helping their constituents.

KDR will always work positively with MPs as part of our Parliamentary Democracy and supports the work they do in these difficult (and often dangerous) times. 

We are having to increase our fees to 35% because of the business not being financially viable at 30%.  Our hard working and modestly paid staff have had pay cuts in some months. 

But there is no risk to customers because fees only become due if and when we win your case.  If we do not win you pay nothing at all.  And if we win a case with no money in it then there is also nothing to pay.  This is because we only charge people who we know have the money to pay, because we have got it for them.  So everyone still gets at least 65% of a sum they wouldn't have otherwise got.

We remain not for profit and money raised is for running the business.  We have no other income except for fees income.  Unlike many of our competitors we do not have a minimum charge.  We also never demand money up front, or at any other point than when there is a pot to charge against. 

We do not have executive salaries and pensions, unlike many registered charities (particularly national disability charities) who typically pay senior staff as the absolute priority, even when cutting services. 

No customer who has signed a fees agreement at a lower rate is affected.