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Defining ‘submit’ for ESA medical assessments
A couple of similar cases have surfaced on Rightsnet recently concerning what is reasonable claimant behavior in relation to ESA medicals. One is CE/62/2016. The claimant attended ESA examination (an IB conversion case). The HP was unhappy when the claimant sought details of the HP’s qualifications and experience. The appellant says they were polite, but HP was defensive /aggressive etc. The HP says claimant was discomforting and intimidating. The medical was abandoned and ESA refused. The FtT decided that the appellant had failed to satisfy regulation 23 (failed to ‘submit’).
From para 34 of CE/62/2016… “…It seems to me that, given my acceptance that, as a matter of law, a person can fail to submit by imposing unreasonable conditions and given the tribunal’s findings it was clearly open to it to conclude that the additional information he was seeking, as a condition of allowing the examination to proceed, was being unreasonably required and did amount to a failure to submit. He already knew he was to be examined by a person whose name he was aware of and he knew that she was qualified as a registered general nurse. He also knew that she was authorised to carry out the examination for the purpose for which it was required. That ought to have been sufficient to reassure him as to any genuine concerns he might have had. It was open to the tribunal to conclude his insistence on more than that, even absent the intimidating behaviour it found him guilty of, amounted to a failure to submit.”
My query is, how does this fit in with the sentiments in CE/4111/2012, where the judge concludes at para 38…“…In assessing the weight to be given to any report addressing the functional impact of any medical condition on a claimant, a First-tier Tribunal should consider (a) the level of the author’s expertise (for example, an HCP or a consultant psychiatrist) and (b) the knowledge of the claimant possessed by the author (for example, knowledge gained from a one-off assessment or that gained as a treating clinician)… “
Knowing someone is a registered nurse might not I suggest tell me if they had sufficient ‘expertise’ in relation to many conditions (for example, Parkinsons, MS, many cancer conditions, many mental health conditions). Yet it now seems that if an appellant requires this information they may now be held not to have submitted to the medical!
i don’t know, but i got the impression in the first case you cite that the claimant was in fact being unreasonable in taking his questions to extremes.
i would like to think that it would be acceptable for someone during an examination, particularly where an unusual/rare/requires specialist knowledge condition is in issue, to ask in a conversational sort of way what experience the HCP has of that condition and make note of any answer for future reference, but i can’t see it being acceptable for someone to go in already assuming that the HCP knows nothing, since that doesn’t follow.
as someone else (i can’t remember who) has said in another thread, there have been amazingly good reports from people you wouldn’t automatically assume to be qualified for the particular condition ... and we all know there are dire ones from people one would think would know better…..