Judge refusing to hear mental health evidence

Please someone tell me I am not losing the plot…

Tribunal judge refused to hear any evidence on mental health descriptors saying as there was no specific diagnosis of a mental health condition she was unable to look at it (actually there was one but client stopped taking anti-depressants 20 years ago). I argued that there was no need for a diagnosis just a mental impairment or disablement, which could be established by hearing evidence on the mental health activities. She was having none of it, saying I was “putting the horse before the cart” and without a diagnosis no evidence could be heard. She was very specific that there had to be a diagnosis.

She adjourned the hearing to find her law book which was then plonked in front of me with a section highlighted referring to the 2013 Regs about ‘specific disease or… mental disablement’. I argued again and was dismissed again.

The client may have scored enough under the physical descriptors (hearing finished late and decision in the post) but if not this will be a nightmare for him.

Am I right about this or have I spent the last 3 years bumbling along under a misapprehension??

I think you are right Billy. The requirement is for a “specific disease or disablement” etc but there is nothing to suggest that the Tribunal is beholden to a previous doctor’s opinion on what the correct diagnosis is. It is a fact on which the tribunal can reach its own conclusions on the balance of probabilities.

Contra say regs 20(f),25 and 29(1)(a)(i)  - where the relevant question is whether or not a doctor says certain things are true.

In this thread:

http://www.rightsnet.org.uk/forums/viewthread/7420/

.. I blithely asserted that ’“specific” does not have to mean “specified”’. I am not sure now what case I had in mind, it may have just been a reference to this thread:

http://www.rightsnet.org.uk/forums/viewthread/4765/

Diagnosis has never been required. Just an acceptance that the symptoms are not imaginary. Established by, er, talking to the appellant and taking evidence.

Some interesting contradictions in all this. On the one hand HCPs are given guidance saying “don’t take a snapshot”. On the other hand they’re then told that they can only deal with what’s in their medical records and what they see on the day. It’s an approach that seems to be filtering down to appeal tribunals. I have had a vague sense of this happening for a year or so. Tribunals being increasingly reluctant to go beyond what’s already on paper in front of them. I’m wondering out loud here but I suspect that the increasing amount of prescriptive stuff being thrown at medical professionals about what to complete and how, some of whom sit on tribunals, must inevitably enter into conversations between tribunal members and lead to this sort of delusion.

If the drafters of the regulations had required a diagnosis they presumably could have said so in plain words, as they do for the exemption for uncontrolled illness.

JG - [2013] AACR 23 might be helpful here:-

43. There may be appeals, albeit rare we imagine, where the first issue on the appeal is whether the person has a specific disease, or bodily or mental disablement. However, we would make two comments about this type of case.

(i) Firstly, given the nature of the ESA scheme, where entitlement begins simply by the claimant being “signed off” by his or her GP with a medical condition given on the form Med3, they are likely to be rare. It would be for the Secretary of State then first to put in issue whether the claimant has a condition that falls within regulation 19(5) of the ESA Regulations.

(ii) Secondly, if, in the rare cases, the First-tier Tribunal was to raise this as an issue – that is, does the appellant have a disease, illness or disablement that is recognised in medicine – where the Secretary of State even after the ESA85 assessment has not taken it as an issue, then it would need to explain why it was taking this as an issue, why it considered it was or may be an issue, and give the appellant adequate opportunity to address the point. In almost all cases where this step was taken by the First-tier Tribunal we consider an adjournment would be needed to enable the appellant properly to address the issue (most likely by the provision of further medical evidence).

If the SoS has recognised the mental health condition then the onus is clearly on the tribunal to explain why it disagrees.

If the mental health condition is being raised for the first time at the tribunal, then to put the problem into more respectable terms,  I can see that there could be an evidence gap even after the claimant’s account has been heard, but what clearly isn’t enough is to refuse to hear it at all.

Thank you all very much, very useful and reassuring.

Has anyone any thoughts on whether JG v SSWP maintains its relevance given that the 2013 ESA Regs came in shortly afterwards?

Edit
Thinking about it I suppose the change brought about by the 2013 Regs was the separation of the physical and mental activities rather than what is the issue here.