ESA - Health Care Professional’s opinion preferred over expert Consultant

Afternoon,

this may have already been covered on here so I do apologise if that’s the case; just need a quick answer.

I have a client with mental health issues, placed into the WRAG just over 12 mths ago, recently came to me because they realised, too late, that their benefit was due to stop. We managed to persuade JCP to go forward with a MR - they agreed the late request ‘in the interest of natural justice’.

I supplied them with very good supporting evidence from 2 experts in mental health who assessed client around the same time as their LCWA both said not reliable in looking after oneself, stating they have an inability to take care of oneself with regards to showering/dressing etc. They both state client is not fit for ANY work at all. The reports talk about disruptive thoughts around staging own death etc. - they (JCP) do not accept that Reg 35 should apply and they have stated the reason behind this is due to the primary role of a doctor being that to diagnose and treat rather than routinely consider functional restrictions appropriate to the activities and descriptors of the LCWA so have therefore chosen to prefer the report of their HCP (a general nurse) over that of 2 psychiatrists.

Has anyone ever encountered this before?

Obviously, I’ll be appealing but would be happy to hear anyone’s experience such as this.

many thanks in advance.

AW

AW71 - 22 August 2017 02:38 PM

Afternoon,

this may have already been covered on here so I do apologise if that’s the case; just need a quick answer.

I have a client with mental health issues, placed into the WRAG just over 12 mths ago, recently came to me because they realised, too late, that their benefit was due to stop. We managed to persuade JCP to go forward with a MR - they agreed the late request ‘in the interest of natural justice’.

I supplied them with very good supporting evidence from 2 experts in mental health who assessed client around the same time as their LCWA both said not reliable in looking after oneself, stating they have an inability to take care of oneself with regards to showering/dressing etc. They both state client is not fit for ANY work at all. The reports talk about disruptive thoughts around staging own death etc. - they (JCP) do not accept that Reg 35 should apply and they have stated the reason behind this is due to the primary role of a doctor being that to diagnose and treat rather than routinely consider functional restrictions appropriate to the activities and descriptors of the LCWA so have therefore chosen to prefer the report of their HCP (a general nurse) over that of 2 psychiatrists.

Has anyone ever encountered this before?

Obviously, I’ll be appealing but would be happy to hear anyone’s experience such as this.

many thanks in advance.

AW

Sadly this is par for the course in my experience.

Occasionally you get lucky and the DM doing the mandatory reconsideration will engage with further medical evidence that is sent in but in the majority of cases they seem to blindly follow the recommendations of the HCP, using the stock phrase you cite above.

Only thing to do is appeal.

Yep have seen this exact response a number of times word for word - all overturned on appeal with specialist evidence being preferred - if the HCP says the world is flat well it is flat

As above.
Only other thing that has sometimes worked for me is finding someone in the relevant Disputes Resolution Team to look at it, realise that it is a certain loss at tribunal for DWP and overturn the decision before it gets there.

This is generally what happens, and, what happens especially when the person designing a template response has a dictionary to hand. Total sidebar but I was recently fascinated/horrified to learn that no knowledge of sensory impairment is required to register as a GP.

Four things for me:

1) It’s worth re-checking whether, in light of the DWPs knowledge of the person, whether they should have been invited to attend anyway. Too late now but valuable in downgrading the weight to be given to the evidence at an appeal hearing.

2) I am routinely encouraging and assisting claimants to lodge complaints against HCPs as there are a number of professional/ethical concerns with ESA and PIP assessments. They won’t start to get addressed until most people complain.

3) GM Strategic Casework Group have an ESA contact for exactly these kind of bonkers scenarios. I can’t locate his email address at present. Perhaps one of my GM colleagues could help me out.

4) Strictly speaking it’s an accurate statement. In most cases it’s exactly why I don’t request medical evidence. There are, especially with mental health, some obvious exceptions but I think we’re very quick to state our support for the social model of disability and less clear about how to implement it in practice. The practice is getting the client to detail the barriers their impairment imposes for them as opposed to getting a medical opinion which either repeats what the client has said; expresses the classic view of what a claimant with said impairment “ought” to be like or, alternatively, doesn’t add anything.

In this case there is obviously clear value to the medical evidence and you need a contact to fix it asap.