Tribunal 'partial victory' placed in WRAG.

[estellyn]

Also re the evidence they have relied on from 2006/7, it sounds as if it was some sort of assessment of your cognitive abilities - unless you can show that there has been some change since, then it is reasonable to use that as an indication of the level of brain injury caused by the accident.

 

 

Was there any other evidence of new issues - maybe caused by depression or deterioration?

[Bazooka Boo]

5) when and in what context did the GP say work and training would help?

It was more ''You should at least think about doing some paid work?'' To which my response was that ''I cannot cope with that, I need to keep my life simple''

to which the GP, who has never met me simply responded with ''well we all do'' Completely ignorant of any issues surrounding brain injury.

(I have the recording on Truecall)

 

4) What reg 35 reasons were given in your submission for not being able to undertake work related activity

''Has problems with irritability, fatigue, disturbed sleep patterns, anxiety, reduced concentration, difficulties multi tasking, poor motivation, depression, poor concentration, poor memory and socially unacceptable behaviour. He has behavioral problems relating to anger relating to anger issues and authorities as mentioned. The cognitive difficulties he now faces would make it impossible for him to return to employment. It needs to be remembered that he has been in the Army since 16 years old, and after his RTA had no opportunity to retrain.

With his cognitive problems learning new skills is going to be extremely problematic and he may not be able to master them fully, this would not be cost effective for any employer as he will need additional supervision and most probably over the longer term, if not indefinitely.

 

Due to the stress this assessment and subsequent appeal has caused his anger and frustration to be heightened and is already having an adverse affect on him and his behaviour, I strongly urge you to look closely at Reg29(2)(b) & Reg35(2)(a) and (b) as there is a risk.

 

3) Are there reasons why you don't have input for your issues any more, as stated in 17, and were any reasons given in your submission.

The comment they have made ''does not appear to have taken this up'' Is in my opinion incorrect, they know perfectly well the difficulties of diagnosing PTSD and a TBI, it appear that the play on words goes alot deeper than ATOS and their HCP's, hence why I have highlighted that particular part.

It is true that the Dr at the Drop-in I attend every month, is greatly concerned that having left Headley Court, I no longer receive any input or care for my injury, his words were ''Who looks after your brain injury now?''

 

re the evidence they have relied on from 2006/7, it sounds as if it was some sort of assessment of your cognitive abilities -

It was an assessment carried out by ''experts'' at the hospital, one of which stated on the very same document that I had ''No SLT needs'' (Speech Language Therapy) which is completely at odds from the 6 months SLT I had a Headley Court, along with the CBT and memory issues that were highlighted, in fact, the ''acute Neuro Team Discharge summary'' that the Hosp completed is not worth the paper it's written on, it got me out of hospital after three months, it was only after I was an in patient at Headley Court, was it then realised just how severe my brain injury was.

[estellyn]

And the activities the SoR stated you do - gym, yoga, pub - are these things you put in the submission or are they from the HCP report, and if so, how far have they been misinterpreted?

 

 

also, did you provide more current evidence from Headly Court about your brain injury and deficits?

[Bazooka Boo]

you do - gym, yoga, pub - are these things you put in the submission or are they from the HCP report, and if so, how far have they been misinterpreted?

 

Gym I do as it helps with my depression, although it really does depend on how I feel when I wake up.

Yoga I've not done for a long while, I possibly wasn't even doing it when I had my HCP & said I was??

Pub, yes, but this is meant to broaden my social circle which was recommended my the OT...

 

Sorry, I feel like your sitting there frustrated and having to tease the answers out of me!

It's at times like this I feel so bloody inadequate and dumb. I don't want to keep being reminded of the person I used to be, I really just want to be left alone,

let me get on with it, I was doing fine until they started rattling my cage and have me justify my injuries, absolute ****....

 

When the FTT asked me for permission to get my GP's notes, I am assuming that they had all of the ones from Headley Court also, however on looking through the notes again there doesn't seem to be anything from them?

[Guest]

Am rooting for you BB.......theres a big difference being in the pub in the way you say, and I can see why it was suggested, and being in there as the life and soul of the party without a care in the world. I will be watching with interest, not having enough knowledge to advise, but I am truly rooting for you.

[Nystagmite]

When you said you went to the pub, gym, etc, did you ever mention things like how often, the problems you have, etc? If you didn't, they could argue that you have no problems doing these activities on a regular basis.

 

I have a TBI too. But don't claim on that basis. Mine doesn't appear to be as severe as yours. (mine is mostly memory issues and it has been suggested it may be why I have depression from time to time)

 

I will have another read of your SoR later and see if I can make any other suggestions.

[estellyn]

Gym I do as it helps with my depression, although it really does depend on how I feel when I wake up.

Yoga I've not done for a long while, I possibly wasn't even doing it when I had my HCP & said I was??

Pub, yes, but this is meant to broaden my social circle which was recommended my the OT...

 

Sorry, I feel like your sitting there frustrated and having to tease the answers out of me!

It's at times like this I feel so bloody inadequate and dumb. I don't want to keep being reminded of the person I used to be, I really just want to be left alone,

let me get on with it, I was doing fine until they started rattling my cage and have me justify my injuries, absolute ****....

 

When the FTT asked me for permission to get my GP's notes, I am assuming that they had all of the ones from Headley Court also, however on looking through the notes again there doesn't seem to be anything from them?

 

 

I understand your frustration and really sympathise. Don't feel bad, conversations pretty much used to go the same way with all my clients - the reason they and you need help is you don't know the info that's important and the stuff that isn't.

 

 

I think there is a small possibility with the procedural issue of not having an oral hearing - making the decision on paper, and the fact that the statement of reasons contradicts your submission and says there is no argument for support group when there was, which means it should have been investigated further at the oral hearing where more info on your capabilities may well have been forthcoming. Normally I would make a stern warning to a client that taking it further could result in a set aside and a new hearing which risks the current award, but as you are not receiving anything you have nothing to lose really.

 

 

As well as requesting permission to appeal to UT and arguing why, I would also be requesting a set aside and new hearing due to your not having the full hearing previously. Not sure on your odds, but I would say slim.

 

 

Another thing you can do, is get together all relevant evidence, get some current info on your capabilities - get some assessments done or see some professionals. Put together a coherent reg 35 argument and then request a supersession from the DWP based on your current capabilities. As you're not actually receiving anything, there is no risk to any benefit in payment - and you have said your condition has worsened due to the stress of the appeal - so if you can get some professional evidence to concur, you may have a chance going this route.

 

 

It's a double pronged attack, but a reg 35 argument is a difficult one to make and has a low rate of success, so it's important to get some professional help - you can't do an UT appeal without it, and it would also help with a supersession.

 

 

But be aware, a professional with all of your info in front of them may see things differently, and decide that you don't have an UT case, so prepare yourself for that possibility.

[id6052]

i am a bit confused as to why people are referring to a paper hearing when earlier posts suggested that you attended an oral hearing

[antone]

i am a bit confused as to why people are referring to a paper hearing when earlier posts suggested that you attended an oral hearing

 

I think what happened is that there was an oral hearing but the Tribunal did not invite BB or his representative to present any oral evidence.

[Bazooka Boo]

I think what happened is that there was an oral hearing but the Tribunal did not invite BB or his representative to present any oral evidence.

 

That is correct yes, I attended the tribunal with my rep, we both went in, sat down, and it was one way traffic with the tribunal Judge stating that there would be no need to question me further, they had already made their decision and partly upheld my complaint, placed me into WRAG, took all of 6 or 7 minutes.

 

Thank you very much for everyone's advice, it really is a great help, apologies to the site team for my faux pa in my earlier post, I was getting frustrated.....

 

Along with the SoR it appears I should have asked for a Record of Proceedings, so I requested the RoP yesterday, but due to the bank holiday weekend I doubt I will hear anything until next week at the very earliest?

 

I have until the 11th of next month to be inside the ''month'' time scale for appeal, which is good as I can go to my local Veterans drop in which will be at the start of next month, and speak with the RBL rep and get their opinion, plus they can view all of the evidence there and then.

 

Many thanks once again....

[Bazooka Boo]

Just a brief update.

 

Had the RBL rep visit last week, and we went through the mountain of paperwork I have collected since this whole farce came about, and she (the Rep) has been on quite a few UT tribunals with Veterans in London, so was able to inform me how it all works, and say's they erred in Law by not asking me any questions at the FTT, simply making a decision on paper and not verbal, as she says that if they had asked me questions it would have been blatantly obvious that 'minor unplanned changes' would have a severe effect on me.

 

Plus the fact that it had been argued by my Headway caseworker, that I should be placed into the support group, due to my cognitive deficits and anger management issues, would put others at serious risk. This is a point which they have ignored totally, even claiming that no such argument was ever put forward by my representatives, a very blatant untruth...

 

So hopefully this year will see the whole debacle put to bed, another 24 month battle with corrupt government departments.

[estellyn]

Glad you've got some experienced help in your corner - though remember that most UT decisions are made on paper, so the paper argument to the UT needs to be comprehensive and thorough.

 

Good luck!

[Nystagmite]

I hope all goes well.

[Bazooka Boo]

Thank you, I will of course let you know the outcome.

[Bazooka Boo]

Thought I would update the current progress on this, or should I say 'lack of progress'.

 

TRBL have now taken this on for me, and have filled out the next lethargic step in getting this whole corrupt decision overturned entirely.

 

The error of law argument was met by the FTT not giving me a verbal fearing, and simply making the decision (to put me in WRAG) simply on paper.

 

In line with this, I have made a formal complaint to the ICE for the maladministration of my case, which the DWP have completely disregarded and totally refute,

only for the ICE to come back to me saying that the DWP haven't given me a final answer yet, although I fail to see how three letters telling me that they do not believe this was malad, but legislation so it does not fit their criteria for their complaints process???

 

I have also made a formal complaint against them for discrimination, again, they have failed to acknowledge this?

 

How can such a dept be so incompetent?

[Bazooka Boo]

Blimey has it really been this long?!?!?

 

The outcome is that the UtT have found that the FtT did err in law, and therefore have set aside their decision.

 

It now seems that I have to go through the whole process again......and by that I mean I have to attend another FtT with a completely new tribunal panel.

 

However, it seems (or it may just be the cynic in me?) that ATOS have already made up their decision as they have sent me a ''questionnaire'' to fill in

named ''Limited Capability for work'', must just be a coincidence, yeah that's what it is, a coincidence they sent it the day before the UtT sent me their findings.....

What a sordid web they weave......

 

I'm still none the wiser as to exactly where I stand with this?

Does this mean that I should still be receiving benefits on the appeal rate? The same rate I was at before they failed to transfer me from IB to ESA?

Or is this a completely new fresh claim?

 

Surely if this was set aside as the FtT made an error in law then, I should be on the same rate before they found me fit for work and stripped me of all state support?

[Lapsed Workaholic]

Hello Bazooka Boo and welcome back.

 

It would be interesting if you could elaborate a bit more on the nature of the error in law by the First Tier Tribunal. Was it as the RBL representative predicted?

 

For example, would the FTT Hearing as it was heard then, with the evidence available then, have gone in your favour if the error had not been made?

 

Did the Judge set down any conditions for the next FTT?

 

Was it explained to you whether or not the new Hearing would be dealing with the same evidence as the old one?

 

If that is so then the question is; why a new questionnaire to fill in? why is ATOS involved again at all? and does filling in the new questionnaire mean a new assessment as well?

 

You ask:

"Surely if this was set aside as the FtT made an error in law then, I should be on the same rate before they found me fit for work and stripped me of all state support?"

 

Conditional on the answers to the above, of course, if your benefits were altered after the FTT Hearing as a result of said Hearing and said Hearing is now set aside as if it never happened, then, as you say, the obvious conclusion would be that your circumstances had not, in fact, changed.

 

It follows therefore, that you should expect that any benefit entitlement you had prior to the Hearing should apply for the whole period since you were 'stripped' of it. Furthermore, any benefits withheld during that period should be repaid.

 

PS: It might be appropriate here to pay tribute to the work that the Royal British Legion continues to do to stand with and support their own.

 

It makes a stark contrast to the lip service that government ministers are always ready to partake in while at the same time stabbing our service men and women in the back. A contrast too to the exploitation by so-called charities of the unemployed, the vulnerable and the elderly for their own gain. They should all be ashamed of themselves.

[estellyn]

The effect of the set aside is to make null and void the previous ftt decision, so in theory yes, you should go back on appeal rate esa while waiting for the next appeal hearing. However, I don't know what's being done in practice. Your best action would be to write a letter to the DWP stating the appeal decision has been set aside and requesting reinstatement of appeal rate esa until the next hearing, enclosing a copy of the set aside decision.

[mikeymack2002]

BB i have just found this thread and would like to ask some personal questions, but unsure if it is appropriate for open forum atm. I wish to send you a PM for a specific reason that i wish to keep private but will aid your position emensly. Can I pm you please?

[Bazooka Boo]

The decision of the first-tier tribunal sitting at ---------- on 27th November 2013 under reference --/-----/------ involved an error of law and is set aside.

 

The appeal is remitted for determination at an 'oral' hearing before a completely differently constituted tribunal.

 

This decision is made under sections 12(1), 12(2)(a), and 12(2)©(b)(i) of the tribunals, courts and enforcement Act 2007.

 

The main crux of the appeal was that they failed to take any oral evidence, and this is why the appeal was upheld by the UtT

''The thrust of the application lodged with the upper tribunal was that the F-tT had erred in failing to take oral evidence from the appellant and in failing to explore his ability to cope with change, different points had been made in an earlier unsuccessful application for permission to appeal which had been refused by a district tribunal judge.

 

I granted permission because I thought it arguable the F-tT had erred in reaching conclusions about the possible applicability of regulation 35 without hearing oral evidence and in failing to adopt the approach to regulation 35 set out in the decision of the Upper Tribunal in IM v Secretary of state for work and pensions (ESA) [2014] UKUT 412 (AAC)

 

Having had a read of this case on the yourable site it starts to become a little clearer, and seems to be a step in the right direction toward the support group...

 

Mikeymack, I would prefer to keep everything on the open forum, just ask the questions, if I don't wish to divulge then I'll let you know...

[**Margaret**]

:Advice Via Private Message:

 

Sorry, CAG discourages advice via the private message facility;

 

Contributors to CAG have a huge knowledge base that we want to share with everyone who searches the forums for help. Also, advice offered can be peer checked (not just by the Site Team) for accuracy.

 

Another reason is that, once an enquirer stops replying to a thread cos of the private help, other contributors to the thread get frustrated as they don't get to find out if their help was useful.

 

Margaret.

 

 

[mikeymack2002]

That's ok BB... Sorry to hear about your TBI.... If my post is not appropriate please ask admin to remove

 

 

Here goes. If the DWP are not aware of the whole affect of your TBI then they will not take in to account the statement/questions below they probably will keep you in the WRAG and not the SUPPORT GROUP where you MAY belong

 

In your original post you stated that you had an "appropriate adult" with you, most "normal people would simply state they had a friend go with them" what are the reasons behind this? To be in the support group you will need to fulfil certain criteria by asking the questions below could help give you an argument against the dwp.

 

 

You have also not made clear is what affect this TBI/ABI has caused you, in as much as your mental/physical state when dealing with new situations/places/people.

 

 

Has your DR/Consultant suggested that you refrain from heavy lifting and the such or not to over exert yourself, so not to cause issues with your condition?

 

 

I can see from a post about your medication that what you have listed is used for a specific reason... Has your DR/Consultant/Psychologist made any recommendations as for your well being?

 

 

Have you reported/suffered any of the following conditions to any of your medical team since the accident

 

 

1. Fatigue
   
2. Confusion
   
3. Inappropriate behaviour
   
4. Inappropriate thoughts
   
5. Have you are or you suffering from the inability to adapt to new situations or places like an "normal" adult would
   
6. Have you now or recent past had aggressive tendencies with members of the public or family
   
7. Since your TBI have you or are you still under a Consultant or Hospital team on a regular basis?
   
8. Do you have trouble doing basic things for yourself around the home or in public or being "safe" at home/public (appropriate adult required)
   
9. Do you now or recently suffer from forgetfulness
   
10. Do you now or recently get over emotional?
    

The reasons behind thes questions are because if the patient that has had a serious TBI/ABI they could and often suffer from these aliments listed without realising them.

 

 

The reason for he questions will see if you have at any time informed anyone from your team and received any form of help or suggestions from them.

 

 

You have also stated that Headway has been involved with you at sometime or may still be. I ask these personal questions not for curiosity but to find out if you can answer them truthfully to yourself your team and then maybe you may find out you actually need more help than you realise?

 

 

I know a lot about ABI/TBI and their affects on the person that suffered either of them. I am a survivor too.

 

 

If ADMIN wish to remove this post as in-appropriate please do so but the questions asked will allow the OP to answer them privately to themselves and not on the forum.

 

 

BB I am NOT asking you to answer the questions on the forum but if you ask yourself and can answer them to yourself HONESTLY then I think you know what you need to do next.

 

 

The 10 questions I have asked are common side effects of a TBI/ABI I am only asking the obvious questions that only you can answer...

 

 

Sorry in advance if I have offended you in any way by asking.

[mikeymack2002]

It was trying to be diplomatic with the question that is all as you can see I have responded in the forum no offence meant by asking that's all

[sillygirl1]

Don't forget to throw in discrimination on the grounds of your disabilities, not something to be normally done but blatantly they have failed to take these into account - could be a powerful argument.

 

For that to really work I think you would need to explain in depth why you could not hold down a normal 9-5 job and why you should not be pushed into the support group.

[**Margaret**]

:Advice Via Private Message:

 

No offence taken. #49 was a reminder, to everyone who uses our forums, of CAG's preference for advice and help to be given openly.

 

#50 is fine. Not least cos it may help someone else who comes along looking for information about the same condition.

 

Margaret.