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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

Physiotherapist evidence of no probabtive value in relation to mental health assessment

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Ken Butler
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Just had to post this.

It’s a recent decision that will have you leaping out of your chair, punching the air and shouting Yessssssss …

Or may do only if you’re working in an office that’s 35 degrees with no air conditioning ...

Or it might have done if I’m not spoiling it for you but telling you about it before you get a chance to read it yourself ...

The claimant had mental health problems including serious anger management issues.

Fails WCA following 15 minute medical examination by an Atos health care professional – a physiotherapist.

Claimant writes to tribunal to explain he will not be attending his hearing due to his poor anger management.

Only medical evidence before the tribunal – you’ve guessed it.

Tribunal’s decision – you’ve guessed it.

Then along comes Upper Tribunal Judge Michael (Mikey) Mark –

“Somewhat remarkably, considering that the claimant’s problems were entirely mental ones, the disability analyst in question was … a registered physiotherapist, with no apparent professional expertise in mental health matters beyond what she may have gleaned from whatever training she was provided to become a disability analyst. 

… the only evidence before the tribunal, apart from the evidence of the claimant, was that of the physiotherapist.  I have no doubt that the physiotherapist has received training to ask relevant questions and to make relevant observations.  Subject to any question as to their accuracy, the report on what the claimant stated and on the observations made is clearly relevant evidence.  Where the disability analyst possesses relevant medical expertise, any opinion expressed based on that expertise is also relevant evidence. 

Where, however, the disability analyst is a physiotherapist and the problems she is dealing with are mental health problems the opinion of the physiotherapist as to the conclusions to be drawn have no probative value whatsoever.  This is because the physiotherapist has no professional expertise in mental health matters.  Although the strict rules of evidence do not apply, a tribunal can only take into account evidence that has probative value, so that, for example the decision of another judge as to the facts is simply his or her opinion as to the facts and has no probative value …”

It may have taken over 4 years to get a clear decision that simply seems sensibly to conclude the bleeding obvious but at least its here now.

I can’t see how the DWP can avoid not seeking to appeal against it but for once I don’t fancy its chances of getting this decision dismissed (or perhaps its just me in this heat).

Are you listening Duncan Smith, Hoben, McVey???

Claimant’s with mental health problems should assessed by mental health professionals and for longer than 15 minutes - the revolution starts here.


The decision is CE/883/2012 and its available @ http://www.osscsc.gov.uk/Aspx/view.aspx?id=3830

Mike Hughes
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Senior welfare rights officer - Salford City Council Welfare Rights Service

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Significant cheer from here for sure.

Seems to me that there are several logical consequences of this worth exploring:

- ATOS et al will want to put into evidence the extent of training. It’s the only counter punch they have until an UT judge puts a different slant into play. As I know someone doing that training, who expressed shock at how little these new employees knew i.e. they genuinely had no idea they would be dealing with anything beyond physical disability then this could be hugely entertaining.

- DWP will want to amend their standard submission to claim either that standards are high (good luck with that) or that the process is not about professional expertise.

- I don’t see why this would be exclusive to mental health. Learning disabilities? Sensory impairment and so on.

- It’s also hard to see why it might be exclusive to ESA. Why not PIP?

- in tandem with the recent Equality Act win on the WCA there will be much scope for challenging the assessment process in terms of ‘reasonable adjustments’. Hmm, let’s think now. As a person with LD I’d be wanting an Easy Read version of the ESA 50. As a person with a visual impairment I might want a large print version and so on.

It’s like 1988 all over again if you’re old enough to remember. “Simplification” is not a concept that sits with welfare reform. It leads to a level of complexity that couldn’t even be classified as an “unintended consequence” as anyone, bar the government, could forsee what would happen next.

This will run and run. My best guess is that it’s another nail in the coffin of tribunals.

Nicky
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WOW! Brilliant….. :)

“It is plainly important that questions of mental health should be assessed by a disability analyst with appropriate mental health qualifications if their opinion is to be of any evidential value.”

I can see this being a much used decision for a lot of my clients.

Stevegale
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A common sense success!

Dan_Manville
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Now how to apply that to the 30 odd WCA appeals I’ve got in my drawer all of which arise from a physiotherapist or general nurse.

Shame a UT decision alone won’t found a supersession…

BC Welfare Rights
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From memory this was being appealed by the DWP. Anybody know where we are at with this?

iut044
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DManville - 22 July 2013 01:16 PM

Now how to apply that to the 30 odd WCA appeals I’ve got in my drawer all of which arise from a physiotherapist or general nurse.

Shame a UT decision alone won’t found a supersession…

Although this is a useful case piece of case law.  Whether it can be used to overturn decisions, depends on how much weight the tribunal gives to the evidence of the physiotherapist.

iut044
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iut044 - 08 August 2014 11:38 AM
DManville - 22 July 2013 01:16 PM

Now how to apply that to the 30 odd WCA appeals I’ve got in my drawer all of which arise from a physiotherapist or general nurse.

Shame a UT decision alone won’t found a supersession…

Although this is a useful case piece of case law.  Whether it can be used to overturn tribunal’s decisions, depends on how much weight the tribunal gives to the evidence of the physiotherapist.

nevip
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The contents of ESA85’s rarely concern me.  We all know that in the majority of cases it’s the doctor on the tribunal that makes the decision and if the doctor believes the appellant then the appeal will be allowed no matter what’s in the ESA85.  If the doctor doesn’t believe the appellant then the SOR will then fall back on the ESA85.  If there’s no independent psychiatric evidence in the papers then the judge’s job in writing the SOR becomes easier.

BC Welfare Rights
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nevip - 08 August 2014 11:49 AM

The contents of ESA85’s rarely concern me.  We all know that in the majority of cases it’s the doctor on the tribunal that makes the decision and if the doctor believes the appellant then the appeal will be allowed no matter what’s in the ESA85.  If the doctor doesn’t believe the appellant then the SOR will then fall back on the ESA85.  If there’s no independent psychiatric evidence in the papers then the judge’s job in writing the SOR becomes easier.

I mostly agree with that Nevip, although I have come across more than one doctor who seems incredulous when it is suggested by the claimant that the HCP has recorded things inaccurately on the ESA85, or distorted facts, but client goes on to win the appeal.

Am I right in recalling that this judgement was being appealed does anyone know?

Peter Turville
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From UtT website - cases pending before a three judge panel:

CE/411/2012, CE/3202/2013 and CE/3917/2013
Weight to be given to the observations on mental heath descriptors by a physiotherapist (or an equivalently qualified person). See JH v Secretary of State for Work and Pensions (ESA) [2013] UKUT 269 (AAC).

BC Welfare Rights
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Came across this on all-about-debt forum from moderator Pompeyfaith:

“MM & DM V SSWP [2013] EWCA Civ 1565

The below judgment is for those with Mental Health Problems it is a very important judgment and why I bring it here, there was another hearing on the 7th and 8th July where the Secretary of State for Works and Pensions had to explain to the Court how he was going to address the substantial disadvantage that final judgment will be the end of this long running case and I for one look forward to reading it as this all hinges on my own tribunal that will be heard on 9th September 2014.

Indeed this Judgment is a damming indictment in how the Government treats those with MHP’s

http://www.bailii.org/ew/cases/EWCA/Civ/2013/1565.html

Anyone know anything further about what happened on 7th and 8th July or what the 9th Sept hearing is about?

Dan_Manville
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Billy Durrant - 15 August 2014 10:53 AM

Came across this on all-about-debt forum from moderator Pompeyfaith:

“MM & DM V SSWP [2013] EWCA Civ 1565

The below judgment is for those with Mental Health Problems it is a very important judgment and why I bring it here, there was another hearing on the 7th and 8th July where the Secretary of State for Works and Pensions had to explain to the Court how he was going to address the substantial disadvantage that final judgment will be the end of this long running case and I for one look forward to reading it as this all hinges on my own tribunal that will be heard on 9th September 2014.

Indeed this Judgment is a damming indictment in how the Government treats those with MHP’s

http://www.bailii.org/ew/cases/EWCA/Civ/2013/1565.html

Anyone know anything further about what happened on 7th and 8th July or what the 9th Sept hearing is about?

The Court of Appeal remitted MM & DM back to the UT and they heard it on 7th & 8th July, no decision yet.

The 9th September is Pompeyfaith’s appeal and she’s optimistic if she thinks the decision will be down in MM & DM by then and even so challenging a supersession on Equality grounds would be interesting. I can’t see MM & Dm attracting too many Judges to strike down supersessions and attract the ire of IDS when they can just leave it to the UT on appeal.

Discussion of Mm & DM

[ Edited: 15 Aug 2014 at 02:11 pm by Dan_Manville ]
Graham Summers
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Following on from this, a panel of 3 Upper Tribunal Judges looked at 2 appeals where the argument was the validity of observations on mental health descriptors by a physiotherapist in(1) ST, (2) GF v Secretary of State for Work and Pensions (ESA) [2014] UKUT 0547 (AAC)
The cases were CE/4111/2012 and CE/3202/2013.

its not good news as their conclusion was that a report by a physio about mental health descriptors could have probative value.

detailed descriptions of the selection, training and supervsion of healthcare professionals and in particular physioterapists were given in the form of witness statements by the current and previous chief medical officers of the DWP along with selected bits of the Harrington report which suggested there were no inconsistencies in the outcomes of assessments carried out by different types of medical professional and a statement from the Chartered Institute of Physiotherapists that said that their members often have to treat patienst with menatl health problems. There was a bit about differentiating between what a functional assessment is from the role of a clinician who diagnoses and treats illness. This seemed to convince the panel that in the context of a Limited Capability for Work assessment that a Physio who had been through the ATOS training course was sufficiently qualified to comment on Mental Health Descriptors.

The conclusion the panel came to was that Judge Mark’s comments in CE/3883/2012 That observations on Mental Health descriptors made by physiotherapists could have no probative value whatsoever were invalid as he did not appeal to have before him the evidnce as to the recruitment, training and supervsion of healthcare professionals carrying out assessments for ATOS on behalf of the DWP.

Its worth a look on http://www.osscsc.gov.uk/Aspx/default.aspx

The decision was made on 5th December and added on 30th December

Ros
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Briefcase summaries of CE/4111/2012 and CE/3202/2013 now published - here’s the one for CE/4111/2012 (they’re both the same as was joint decision) -

http://www.rightsnet.org.uk/briefcase/summary/value-of-an-hcp-report-carried-out-by-a-physiotherapist-where-mental-health

In addition to findings on HCP reports, decision is worth checking out for its criticism of tribunal’s approach to claimant’s mental health problems and her evidence, and the knock on effect this had on its findings as to continence and social engagement descriptors.

[ Edited: 14 Jan 2015 at 04:14 pm by Ros ]
Mr Finch
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I think the new decision is right, but still misses the point somewhat. Detailed medical knowledge is probably less important than understanding the criteria correctly.

We have little idea - from the witness statements on the detailed training given to assessors - of how accurate this training is, but there’s abundant evidence (reported and circumstantial) that assessors’ training on the criteria has been at best poor, and at worst deliberately misleading. We also have no way of knowing if the 83% of trainees who are rejected suffer this fate because they refuse to go along with a culture of wrongful findings: perhaps they are rejected because they won’t accept that a person who washes, dresses, and goes to one shop cannot have a significant mental health problem.

The starting point should always be that Atos reports lack credibility in general, but then an assessment of the individual report should proceed from there.

The question of points should also be taken out of the HCP’s hands in my view: their role should be limited to recording primary findings of a person’s situation, with the descriptors left to the decision maker. An HCP’s opinion as to points scored should certainly not in itself carry evidential value.