Any guidance on the following will be greatly received. A client has entitlement to NI credits on basis of incapacity for work. He is found fit for work in 2008 following PCA which results in 2 points. An awarding decision of 2003 is therefore superseded. Client appeals 2008 decision. Current appeal papers contain IB 85 from 2005 which awarded 23 points!! No other reference to 2005 IB 85 in appeal bundle. Question - does an IB85 always result in a (outcome) decision? or can an IB 85, which finds 23 points for a client, result in continuing entitlement to credits (+ income support) without the necessity for a new decision by a decision maker?

Alan

In my view if a person has been sent an IB85 then it suggests that he has been subjected to the PCA. If that is so then wether a person falls to be asessed as incapapable of work or not is a matter for a decision maker, which results in a fresh outcome decision.

Have I understood your question?

The decision maker is not bound in any way to endorse the findings of the examining medical practitioner, though of course s/he usually does. However I have seen more than one IB85 sent for rework where a more astute than usual DM has noticed that some of the IB 85 is inconsistent or not adequately justified. Doctors seem to cave in under this! It goes without saying that, as the papers you actually see are the disputed ones that go to appeal, it usually means that the DM has lowered the original score. I don't know how often it happens the other way round (not often enough, if you look at some of the arrant nonsense in some IB85s...)

However a more interesting question, which may be what this query is about, is whether the DM has established that there were grounds to supersede the original award of IB - which is by its nature indefinite - and remove it. This could be only on one of two grounds: that there has been a change of circumstances since the original decision (got better) or that the original decision was just plain wrong. It's vitally important to get not just the claimant's self-assessment of how his condition at the date of this decision compares with his earlier condition, but preferably also some real medical or social work evidence.

The production of a previous IB85 is usually an attempt by the DM to forestall an order from a Tribunal to produce the previous report where the claimant and his advisers suggest there has been no significant improvement. It will then be part of the Tribunal's job to find an explanation for the huge discrepancy which may be down to the level of competence of the two doctors concerned. You will no doubt have your own opinion of the competence of your local medical examiners.

If ther is no previous IB85 produced, the DM runs the risk that the Tribunal will find that the SoS has failed to show that there were grounds for removing the indefinite award. The DM is hoping to avoid this outcome.

In terms of what is happening:
The doctor talks with the claimant, notes his responses and observes certain features of his behaviour (since this is clearly a mental health appeals) What he records about that is findings of fact.
From that he extrapolates to produce answers to the specific questions posed by the mental health assessment. This is his professional opinion.
The Decision Maker considers the doctor's report and. if satisfied with it, translates that into a score. The only thing determined by that score is whether or not the claimant is incapable of work. This is the firt-level decision, but it is not an outcome decision, which is what the claimant is concerned about. It is however the only one the Tribunal can decide.

The final part of the equation is to ensure that the claimant meets all the other criteria for the award of IB or IS on the grounds of incapacity for work, and to work out the rate of benefit. This will be worked out by a different DM once the issue of incapacity has been sorted out. The result of that is the true outcome decision, that the claimant is entitled to benefit at the rate of £x a week.

Thanks ADRIANE2 + NEVIP for the (prompt) replies.

ADRIANE2, In regards to previous IB85's, no IB85 has been produced (so far) for the 2003 decision. Therefore I take the point that the Tribunal may find the SoS has failed to show there were grounds for removing the indefinite award (2003). I will certainly include that line with my tribunal preparation/submission.

Yes NEVIP you have understood the question. However what I am particularly interested in is what happens after the PCA. Does an IB85 always result in an outcome decision? Presumably all IB85s are put in front of a decision maker for consideration. Will the DM's consideration always result in an outcome decision - i.e. a decision which replaces, in this instance, the 2003 decision? If no then the DM may have reviewed the right decision (2003) and the type of argument outlined by ADRIANE2, (paragraph one above), will follow. If the DMs consideration always results in a new decision then the last operative decision will have been made in 2005. Consequently the DM, by superseding the 2003 decision, will have superseded the wrong decision.

Cheers, Alan.

Hi Alan

I had a feeling you were looking at the supersession of the wrong decision. A new IB85 should produce a new outcome decision. However, since the decision in R(IB) 2/04, a tribunal now has the power to supersede the right decision where the DWP have superseded the wrong one and the days of getting the tribunal to throw the case back to the Department to get it right are now gone, I’m afraid, unless the supersession is so inept in substance or has no connection to any legal power as to not amount to a supersession at all.

Regards
Paul

If there is an extant awarding decision & the DM causes C to be examined and that examination confirms that C is incapable of work then surely DM has no grounds to revise or supersede & original decision remains in force.

Philip Boyd

You would think so wouldn't you? But I think that the totally unnecessarily over technical nature of the SSA and the D&A Regs leads (me at least) to confusion.

Because reg 6(2)(g) of the D&A Regs allows the last operative decision to be superseded merely because there has been an incapacity determination on the back of an IB85 (usually against the claimant but is silent on that and on the reverse scenario) then it becomes simply a technical exercise that allows the DM to issue a new outcome decision.

However, in the light of R(IB) 2/04 it makes little practical difference as to the tribunal’s powers to correct as I outlined above.

Thanks for the contributions. After checking R(IB) 2/05 it looks like ",,,little practical difference,,," sums the issue up. Though I will give it further consideration!

Cheers, Alan.