Hi all,

Just a quick question really. Can a DM use a HCP report from an ESA claim in an appeal against a DLA decision, even if there is an ongoing appeal against the ESA decision?

I think they should be excluded until the ESA appeal is heard as discussing the merits of the report beforehand in a DLA appeal may prejudice the ESA appeal.

What does everyone else think? Has anyone come across this before?

I cannot see or imagine any logical reason why a DM would even consider using a HCP report relating to an ESA claim, primarily as both benefits are entirely different in as much that an ESA report is a report on the ability of a person to work (or alleged ability to work) and anything DLA focused is entirely the opposite, as it relates to a question of fact. With regard to the amount of care attention and assistance a person receives regarding a loss of faculty they may experience.

Suggestion: ask for directions from the District or Duty Judge.

Using ICB reports in DLA cases has been going on for a while and there can be overlap. ESA will continue that. For example, an EMP at the WCA can make a finding that a person can walk over 200 yards. This can have evidential value for a DM/tribunal deciding whether a person is virtually unable to walk.

Unlike the courts there are no technical rules governing the admissibility of evidence in tribunals, including hearsay evidence. It is merely a matter for a tribunal to give the appropriate weight it thinks fit to each piece of evidence and decide the case on the balance of all the evidence available to it. I would be amazed if a legally qualified panel member or tribunal ordered its exclusion unless it was so out of date or there was some wholly and exceptional reason why its evidential value was considered worthless.

Casework team:

That's certainly what I will argue. The two are entirely different although nevips point is what DWP argue-it is evidence of ability to walk etc.

The problem I have is that the ESA is also under appeal and therefore arguments on the merits of the HCP report and how much weight it carries is tantamount to trying the issues together. Not only would I need to argue where and how the client meets the DLA criteria but also why the tribunal should prefer his and other medical evidence over that of the HCP.

Had the ESA appeal already been heard and decided then I agree with nevip that the evidence should be considered and argued accordingly.

Any other views?

I have never dealt with a case like this before but I would not have thought that the fact that the ESA report is being appealed against would mean that the tribunal can exclude it. After all there is no gurantee that the ESA appeal is going to be sucessful.

If the Tribunal is aware that the WCA decision is to be or has been appealed, they will be able to attach the appropriate weight to the findings. It is notable that the DWP NEVER tells the DLA tribunal about the appeal on the PCA/WCA, and the Tribunal has a system whereby it can easily check on the status of that appeal; though it will not be able to find out what points were awarded for what descriptors. However your client should by then have a copy and can take it with them.

It's certainly true that there is a bit of overlap - not just on walking, but also for example on using hands which can affect ability to self care very greately, or on vision which could affect mobility out of doors.

I agree with nevip - there are no rules of evidence other than that it cannot relate to circumstances not obtaining at the date of decision. In fact, Tribunals Service here has listed IB and DLA, or ESA and DLA appeals for the same person on the same session, and seem very keen to do so, where an appellant has two appeals registered with their office. Whilst we are not particularly happy about this, I can't think of a case where we have mounted a challenge on the basis that this practice is implicitly unfair. It certainly isn't the case that ESA or IB medical reports cannot be relevant for DLA and vice versa - what a person does in a typical day, clinical findings, observed behaviour and the like are all potentially relevant to both appeals. Similarly, GP and consultant evidence may be relevant for both. It is all a question of weighing evidence appropriately.

Brian

I would stick with my original response to this thread and challenge any case that relied upon evidence from an ICB or ESA assessment in relation to a DLA case/appeal. To be totally forthright on the issue of HCP's and assessments, i cannot see any justification or legitimate reasoning why an assessment can be considered as medical fact.

We all know that HCP's are not trained to an acceptable level that would provide them with a pan disability perspective to provide a factual and medically correct assessment, they are in post to simply asses a persons ability to work.

And when its admitted as evidence and before a tribunal then that's the first ground on which you might want to concentrate an attack as to it's evidential value.

Just to point out that the use of PCA/WCA medical reports works both ways. We recently represented a client with a traumatic head injury at a DLA appeal. A few months previously she had attended, and 'passed', a PCA medical. We asked for a copy of the report. In it the doctor had noted that our client had poor insight into her condition, and recorded problems with memory, concentration etc. Result: indefinite award of LRCC and LRMC.

Thu 22-Oct-09 08:07 PM by dab

I have just posted this in reply to later topic but also relevant here - have handled many cases where IB85s have been used as evidence to remove, or not award, DLA. Funny how they dont turn up when they would have been supportive unless we request them. Just a point to add. The District Judge in our area has stated to the presenting officer more than once in tribunals that he will not consider an IB85 as evidence unless it is also accomanied by the IB50 which preceded the medical assessment - on the grounds that if the assessment of ie walking ability is in 'disagreement' with the claimant he wants to see what the claimant assessed him or herself as capable of as well. If the IB85 is produced we therefore have 2 options - argue that it is inadmissible on the above grounds or get all paperwork appertaining to that assessment ie the IB50, GP reports, appeal papers etc and hope that they may prove more supportive. We all know how dodgy IB85s can be....I would also argue that if an appeal is pending against that IB85 that appeal should be heard first because it has implications for the DLA decision. I presume same should apply to ESA reports