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Upper tier tribunal re dla....anyone been to one?


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Hi everyone,

 

I have had two Tribunals running concurrently for nearly two years now. One for DLA and one for SEN.

 

I missed the deadline the other day to appeal to the Upper Tier Tribunal because of everything going on. Sons claim was turned down at the first tier tribunal (my son was in hosp so I only had about four hours sleep in 2 days before I went to Appeal).

 

Fighting for schools, looking for schools, paperwork, emails, phone calls, looking for work, being so tired and being dx'd with fibromyalgia.

 

To be honest it has really ALL got on top of me and I forgot about the deadline date.

 

So yesterday I rang the DLA and asked why the Judge had written that Lil Legs will be reviewed in Sept 2010 if his claim is not up for renewal till 2012. The DLA told me to hang on whilst they speak to the team. The man came back and said that I should wait for a decision letter to come through from the Tribunal Service and he said he didn't know what it was about.

 

So today, being impatient, I rang the Tribunal Service and the lady knew of my son straight away - didn't ask for our name - just said ' Oh W*****t, yes the Judge has made a decision and I will find it and get back to you in a couple of hours'.

 

I didn't know what it could be. Could it be that I have missed the deadline - which I know - but why would a judge write to me to tell me I have missed the deadline - they just usually leave the case then? I am worried that they are going to lessen his award too. I was as nervous as hell as I did not know what is going on. I was shaking.

 

I also applied for leave to appeal which was turned down a while ago now, so I am really confused.

 

Later, I spoke to Tribunals and she was very 'kosher' this time. Didn't seem like she wanted to say too much. She then said that the Judge had decided that I should apply directly to the Commissioners (as they can deal with relevant reported cases at a higher level) - which I knew already as they had sent me that decision a month ago??

 

She 'asked' me if I had asked for a review by email - I sent the leave to appeal by email then a copy of his ABAS report to back up what I was saying so I said 'I think so' (thinking it was Leave to appeal)- but I didn't ask for a review. Is leave to appeal the same as a review?

 

She seemed backwards in coming forwards IYSWIM.

 

Why would the DLA be sending me a Decision Letter though....they do not send you letters regarding Commissioners.

 

I then spoke to the DLA and they said the last decision they knew of was March 2009 - but in the next breathe they said they were querying a date (which was on the Appeals Statement of reasons) and were waiting on paperwork from the Tribunal Service.

 

Why did the DLA tell me that they were sending a decision through the post in 7-10 days?

 

My son is autistic but HF. He has had an adaptive functioning test and he scored on the

 

They just listed ludicrous things like he attends a ball pit , has stayed at his aunts house and states 'nowhere in the reports does it say he has severe impairment of intelligence' - surely they should decide that?

 

I now have to apply direct to the UTT.

 

They have reports from top London neuro team, letters from paeds and psychologists that all agree that he should be entitled. I am sick to death of fighting for nearly two years for HRM and SEN.

 

What happens now ......... anyone??!

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Higher rate mobility is possible from age 3, lower from 5.

 

The thing they are looking at is whether your child has needs in excess of the needs of other children the same age. I suspect that the fact your child cannot cross a road is therefore not being taken into account, many 8 year olds cannot cross a road, and many 8 year olds cannot go out on their own, without supervision. Your appeal needs to show how your sons supervision needs when out are in excess of the norm. For instance, does he need a buggy when out? Or do you need two people with him at all times?

 

Your other problem is that you cannot get HRM for a mental impairment, and there is some reluctance to accept autism as a physical problem. That does not mean it cannot be done, there is at least one poster on here who has got it, but it is hard.

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  • 2 months later...

Just an update. We are now heading for the UTT.

 

I noticed that the FTT judge made a slip of the pen and the wrong review dates were applied to the original decision notice.

 

The notice was sent back to the judge and once AGAIN, she made a mess up with the dates. Surley this proves incompetence - if a mistake is pointed out to a judge surely they would have been completely aware not to make the same mistake again? This is getting beyond a joke and is really dragging on.

 

Now the question is, many may I add! Are the following all errs of law:

 

1/ delays - infringement of human rights 6(1). Under regulation 56 for corection of slip of the pen?

 

2/Conflict of panel members...on the day of FTT Appeal, I had only had 4 hours sleep (in 2 days) as my son was taken ill in hosp). I was asked if I wanted to carry on. I said 'yes as I cannot cope with the stress any longer'. The doc present said that I should NOT carry on but the judge said 'let her if she wants to'.I wasn't in my right mind to make that decision - I see that now!

 

3/Not accepting medical evidence - do the tribunal not have to heed this?

 

4/ Discussing the case and relevant case laws when the appellant is not present.....they did not discuss anything on the day together rather they made the decision when I had left and informed me by letter.

 

5/ Made light of material matters and gave weight to immaterial matters.

 

6/ Board did not pay heed to relevant case law - reported or commissioners decisions that I had laid out in the submission.

 

Is it possible to apply for supersession whilst an appeal going on?

 

Any help would be fab - this is taking its toll on me - but I won't give in as I feel my child fits the criteria......

 

Tinks

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Sorry, this is way above the level at which I am able to advise. :-(

 

Not wanting to teach you to suck eggs, but have you asked NAS for help?

 

I wish you the very best, I really wish I could help you.

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My friend was successful in getting DLA for her daughter (under 5 at the time) because her SEN status had already been approved. This may be why you're having problems getting DLA, as I believe they contact the school to find information once a child is of school age. I work in a school and know that our SENCO has often had to complete DLA reports about students; some go on to get the award and some don't.... but having a Statement of SEN seems to go a long way; as does being School Action +.

 

The only suggestion I can make is that you make an appt. with someone who specialises in DLA claims at Citizens Advice and go through everything with them. Don't confuse your issues though. One issue is SEN; the other DLA. Deal with them both, but not together if you can because things seem to be muddy enough as it is and you need to keep a clear head as much as possible. CAB will also accompany you to tribunal hearings which is very useful if you're overly tired; as you've said, or you need to explain a point of law to an intimidating group of "experts".

 

Good luck... :-)

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Hi Bookworm and Priority one.

 

First of all thanks for replying!! Have contacted NAS in the past but unfortunately the Welfare rights guy has passed away since. The SEN is dealt with and my child is now in an independent autism specific school. They had loads of evidence regarding destructive behaviour, lack of awareness of danger, paed reports fully backing my claim for HRM - the evidence they chose to ignore!

 

I have visited citizens advice with my docs and my submissions but unfortunately they said they couldn't have done a better submission themselves - so they was of no help at all =(

 

It has gone past first tier and is now onto second tier tribunal stage - a thinking of trying to get the original decision set aside (if poss) due to errs of law and mistakes etc etc

 

Just not too hot on the legal side of things this end and needed some help on the errs of law:|

 

Thanks again you two!! Tinks =)

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Just an update. We are now heading for the UTT.

 

I noticed that the FTT judge made a slip of the pen and the wrong review dates were applied to the original decision notice.

 

The notice was sent back to the judge and once AGAIN, she made a mess up with the dates. Surley this proves incompetence - if a mistake is pointed out to a judge surely they would have been completely aware not to make the same mistake again? This is getting beyond a joke and is really dragging on.

 

Now the question is, many may I add! Are the following all errs of law:

 

1/ delays - infringement of human rights 6(1). Under regulation 56 for corection of slip of the pen?

 

Possibly, but would be hard to prove.

 

2/Conflict of panel members...on the day of FTT Appeal, I had only had 4 hours sleep (in 2 days) as my son was taken ill in hosp). I was asked if I wanted to carry on. I said 'yes as I cannot cope with the stress any longer'. The doc present said that I should NOT carry on but the judge said 'let her if she wants to'.I wasn't in my right mind to make that decision - I see that now!

 

Unfortunately, the upper tier can only deal with points of law, not points of opinion, and it is only your opinion that this was a conflict and, by your own admission, you agreed to carry on.

 

3/Not accepting medical evidence - do the tribunal not have to heed this?

 

The tribunal do have to consider all of the evidence, but they do not have to agree with any particular part of it.

 

4/ Discussing the case and relevant case laws when the appellant is not present.....they did not discuss anything on the day together rather they made the decision when I had left and informed me by letter.

 

This is usual practice.

 

5/ Made light of material matters and gave weight to immaterial matters.

 

In what way?

 

6/ Board did not pay heed to relevant case law - reported or commissioners decisions that I had laid out in the submission.

 

This is good grounds for appeal to the upper tribunal and the only thing, IMO, that they would be interested in hearing about.

 

Is it possible to apply for supersession whilst an appeal going on?

 

By appealing to the upper tier, that is, in effect, what you are doing.

 

Any help would be fab - this is taking its toll on me - but I won't give in as I feel my child fits the criteria......

 

Tinks

 

I'm sorry if this all reads a little harshly - it isn't meant that way, but it's important to be clear on what the process is and how you need to work within it.

All help is merely my opinion only - please seek legal advice if you need to as I am only qualified in SEN law.

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Sorry, I obviously didn't put it very clearly in my response - hopefully this will make a little more sense as I've put my responses in a different colour:

 

Just an update. We are now heading for the UTT.

 

I noticed that the FTT judge made a slip of the pen and the wrong review dates were applied to the original decision notice.

 

The notice was sent back to the judge and once AGAIN, she made a mess up with the dates. Surley this proves incompetence - if a mistake is pointed out to a judge surely they would have been completely aware not to make the same mistake again? This is getting beyond a joke and is really dragging on.

 

Now the question is, many may I add! Are the following all errs of law:

 

1/ delays - infringement of human rights 6(1). Under regulation 56 for corection of slip of the pen?

 

Possibly, but would be hard to prove.

 

2/Conflict of panel members...on the day of FTT Appeal, I had only had 4 hours sleep (in 2 days) as my son was taken ill in hosp). I was asked if I wanted to carry on. I said 'yes as I cannot cope with the stress any longer'. The doc present said that I should NOT carry on but the judge said 'let her if she wants to'.I wasn't in my right mind to make that decision - I see that now!

 

Unfortunately, the upper tier can only deal with points of law, not points of opinion, and it is only your opinion that this was a conflict and, by your own admission, you agreed to carry on.

 

3/Not accepting medical evidence - do the tribunal not have to heed this?

 

The tribunal do have to consider all of the evidence, but they do not have to agree with any particular part of it.

 

4/ Discussing the case and relevant case laws when the appellant is not present.....they did not discuss anything on the day together rather they made the decision when I had left and informed me by letter.

 

This is usual practice.

 

5/ Made light of material matters and gave weight to immaterial matters.

 

In what way?

 

6/ Board did not pay heed to relevant case law - reported or commissioners decisions that I had laid out in the submission.

 

This is good grounds for appeal to the upper tribunal and the only thing, IMO, that they would be interested in hearing about.

 

Is it possible to apply for supersession whilst an appeal going on?

 

By appealing to the upper tier, that is, in effect, what you are doing.

 

Any help would be fab - this is taking its toll on me - but I won't give in as I feel my child fits the criteria......

 

Tinks.

All help is merely my opinion only - please seek legal advice if you need to as I am only qualified in SEN law.

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Hi Tiglet and thanks for the detailed reply. I did find case law on conflict of panel members - have it on PC somewhere!

 

The material matters were that the judge took important evidence and changed the wording so as it seemed it wasn't significant - where as if the wording was not changed it would have been of impact. ie, xxxxx has some difficulties - whereas it stated in the evidence xxxxx has severe and significant difficulties. They have severe disruptive behaviour and needs adult intervention to avoid danger to self and others....it was written in SOR that xxxxx has some behaviour issues but not extreme and disruptive. There are plenty more like that throughout the SOR.

 

Also laying weight to immaterial matters ie. was able to attend a ball pit (did not mention that it was run by local autistic society and we often had to leave early) so therefore not SMI. Under grounds of reasonableness my son should be entitled to access a normal a life as possible anyway - this does not mean that he has not got SMI.

 

Lots of relevant case laws not heeded as said. I just feel it is so flawed in the SOR - I really cannot make sense of why it was turned down from that - there are no real concrete reasons!

 

Ah I see - so this is by rights a kind of supersession - even it is applying to UTT?

 

Can I not re-apply to DLA. Was going to request a set aside if poss.

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As this is Tribunal rather than a court, you cannot request a set-aside - only take it to the upper tier of the Tribunal.

 

The more case law you can quote, the better. You can drop the case and then reapply for DLA again (outside the proscribed Statutory time-limits) but, IMO, you are better to at least appeal it to the Upper Tribunal. To discuss the difference of opinion may be considered petty (not by me - Tigs dons her tin helmest) and your time would be more productively spent showing that such and such a point within the SOR contravenes such and such a law. You would also be more likely to win your appeal if you show it contravenes relevant statute, rather than case law.

 

You can certainly make your case strongly about material differences (and it may be informally considered and give weight to your case) but the Upper Tribunal will only over-turn the lower tier's on grounds of law.

All help is merely my opinion only - please seek legal advice if you need to as I am only qualified in SEN law.

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Hi Tigs, I will not drop it and reapply for DLA....been at this for nigh on two years now and refuse to do that! Not sure if I could reapply WHILST the appeal is going on though. Getting the facts wrong is an err of law - which they have done plenty of!

 

When you say the statutes Tig, do you mean the Decision Makers Guide - if not, where do I find this??

 

Week by week, I seem to be coming across relevant case laws and am making note of all of the issues within them and my case respectively.

 

My son is now at an independent autism school and they said they fully agree with the HRM side of things. They said they would be willing to write to that effect and to write of the things that have so far happened....the thing is, am I right in saying Tigs that it has gone far too past the stage of further evidence!

 

Thanks forall your help, Tinks

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The Statute law you need to rely on is the Disability Living Allowance and Disability Working Allowance Act 1991.

 

I have just had a quick google and these people may be able to help too (but I think they may have geographical restraints): http://www.dls.org.uk/

All help is merely my opinion only - please seek legal advice if you need to as I am only qualified in SEN law.

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If you get no joy, you can always post up your submission and I will happily have a look/comment on it for you.

All help is merely my opinion only - please seek legal advice if you need to as I am only qualified in SEN law.

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Ah and to add to that, I was speaking to the FTT and was talking about hs statement had come through. The reason why I did not submit it during the application was tat it was at an appeal too! The FTT told me to send it in and they would try to get the decision set aside on the basis of 'not being able to produce a relevant document at the time of appeal panel'. So am not sure what is going to happen now. My sons new school fully backs it too and they said they will write evidence for me but I am not sure if I am able to send this off as 'evidence to back up what I have been saying' all along. Tinks

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  • 1 month later...

Any one on here who does have any ideas why this is all taking so long...2 years and counting is way beyond a joke now. Nobody seems to have any ideas now it has passed the first tier tribunal stage. The claim has gone back to the Appeal judge AGAIN as another mistake was made. This is just beyond the realms of ridiculousness - surely there must be a time limit as all this is just adding to the stresses of everyday life.

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  • 6 months later...

Hi all

 

I have been fighting for over 2 and a half years re dla for my child who is 8.

 

We have been given a C/DLA number and have been sent a date to appear for 'Leave to Appeal' for next week. The first tier turned us down for leave to appeal to UTT but at least the UTT are willing to give us a chance to state our case.

 

I have spoken to my solicitors who have said that I have to attend as the UTT can change the award there and then, send the case back to first tier tribunal with recommendations, send it on to the Commissioners for a full appeal (R/DLA) or just dismiss it.

 

Will I be asked questions...I am going to pieces just thinking about it. My heart is going like the clappers! I thought the representative would be dealing with it.

 

Has anyone here been to one at the UTT that could give me advice please.

 

Thanks, Lou

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All I know (or think I know) is that the upper tier tribunal deal with points of law that have been flouted by the first tribunal.

 

I hope you get the result you need in this time of draconian measures against claimants.

 

- dj

Benefits rules are complex, and although I do try to inform and support people, I may get it wrong because the rules apply to individual claimants and their particular circumstances.

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