I'd be interested in any views as I've not come across this before.

I'm helping with IB appeal. Client failed pca, awarded 9 mental health points so, as you may imagine, reasonably confident of success.

Computer-generated IB85 completed 09/06/05 in normal way. However, document contains doctor's hand-written amendment, initialled and dated 16/06/05, changing one of the descriptors. This was done prior to Decision Maker receiving document. Significantly, this had effect of deleting one point, thus reducing award to below threshold.

Question is, can anything be made of this in submission to tribunal or is doctor at liberty to amend, even though a week later? IB85 is recorded as usual on first page as being completed on date exam carried out, ie. 09/06/05.

Thanks.

IMO there is nothing to prevent a professional witness changing his opinion but as the amendment was made a week later it does beg teh question of both credibility and reliability. Why was it changed? Will we ever know? Perhaps he was just correcting a clerical error? MIght be worth contacting hte Dr in question.

why would the doctor have the report a week later and amend at that stage? requires explanation?

not exactly the same circs - (EMP, having completed a standard DLA140 report (that largely concurred with the claimant's own comments on her needs and difficulties), was subsequently asked by SEMA Medical Services to amend the report to remove evidence and opinions supporting the claimant’s claim) - ... but may be worth a look ??

CDLA/4127/2003

What a pity the Tribunal or we can't cross examine these doctors.

You could try asking under the freedom of information Act for:-

1. copies of any corrospondence relating in any way to the IB85 after the original date of completion

2. The specific reasons why the report was altered a week later.

.....seems like a big hammer to crack a seemingly small nut but one never knows what may turn up - they have 20 days to reply or give very good reason why they cannot.

Forgot to mention that I would also point out to them that corrospondence includes Emails, memos etc .......

I also have this nagging question of how an EMP would remember the details of the visit even reasonably clearly after six days....

They can - see CIB/4137/2001, refusal to summons an emp can be an error of law. I think you need to be careful with a witness whose evidence you cannot be sure of - it could make your case worse. There are times however where I think it might be worthwhile, especially because I don't think many EMPs would cope well with examination of their evidence. I have asked a tribunal to summons an EMP to attend on one occasion when I failed to get a response to a written request to explain discrepancies in his evidence. We won without this in the end but I did wonder how much of an influence not wanting to summons the EMP had on them making a favourable decision.

We quite often come across altered reports especially where the dm asks for "clarification", usually this results in a prompt about face by the Medical Assessor and subsequent deductions of points. I havent had to take any to Tribunal as challenging them with the dm seems to result in another "about face" and the re-awarding of points.

Latest one I have had is where the dm asked for clarification on 2 points over a month after the MA had examined my cl. I'm quite looking forward to a tribunal hearing with an altered IB85.

I recently attended an appeal where the IB85 was altered.
There was no date on the alteration, no signature as to who amended it nor was it dated.

The alteration changed a desciptor from an exemption under a non-functional descripor to an award of 8 points.(these were the only points awarded)

I challenged the validity of the report at the tribunal as to the changes. The chair in his wisdom said that the claimant was not disadvantaged by the alteration, how he came to that conclusion I am at a loss.

He said that he would only go on to discuss this issue further if insufficient points could be found from the merits.

Well unsurprisingly sufficient points were found, so the matter did not come up for further discussion.

Willie Sinclair

Thanks for all the helpful comments; I've incorporated some where appropriate into our submission.

I’m reviving this topic because this week I received a submission with an altered IB85. Our client was examined on 19 November 2007 and the doctor awarded her 2 points for descriptor Daily Living (c). He answered ‘Yes’ to the question ‘Is she frequently distressed at some time of day due to fluctuation of mood?’ and added as justification ‘Moderate depression on examination’.

The submission also contains a document (IB60) headed ‘Rejection of medical advice’ which asks the doctor to rework because ‘advice given is not comprehensive, does not clearly explain the medical issues raised’. There is also a handwritten note which reads: ‘Dear Dr X, Would you please like to take a look at the DLc descriptor and either change it or supported (sic) better. Thank you very much for your co-operation.’

On 22 February 2008, more than 2 months after the examination, a supplementary IB85 was issued. This removed the previous text for descriptor DLc and replaced it with: ‘Answer: No. Justification: Does not experience panic attacks. Not anxious on examination. Mild mood swings noted but not significantly disabling.’

I find it interesting that the change of opinion by the doctor is clearly documented. This case will come before a tribunal shortly. I wonder what they will make of it.

I wonder what the tribunal would make of us asking a client's GP to alter their evidence in this way?

think i'd be inclined to ask the DWP to produce the doctor to give evidence and then ask him to explain himself.... but that's the lawyer in me talking LOL

I've had two recent examples of an IB85 being re-worked to clients' detriment by a Medical Services doctor at the request of a DM some 6 weeks after the exmination. Because the doctors could not possibly have remebered the clients, and in the absence of any contemporaneous notes being produced, I have asked the tribunals to disregard the changes. Both clients won their appeals and were awarded points for the desriptors in question.

I was an IBDM in my previous job and the correct job of the DM is read the IB85 and ensure that the evidence matches the descriptors and any other evidence(IB50/IB113), if the DM is not happy they can send the case back for 'rework' and/or discuss with another ATOS doctor by telephone. The aim is that the interview and evidence directly relates to the descriptors along with the opinion of the EMO. This doesn't seem to be done alot in my area now, as we frequently win appeals due to inaccurate evidence on the IB85.

The minute the DM has to go back to the EMO on a specific point/ descriptor then the entire IB85 should be disregarded on the ground of incompetance.
In the interests of fairness under Human Rights legislation are WE allowed to contact the EMO for clarification on any descriptor??