Hello

Would appreciate any thoughts on the following...

I have been advising a client who was appealing the decision to refuse her DLA. Client has v.severe arthritis and can barely walk and requires constant help from her husband with her personal care, day and night. Client was refused benefit despite submitting a highly detailed application.

Having spoken to client and seen the forms she submitted as part of the bundle I was pretty gobsmacked she'd had no award at all - it seemed pretty clear to me my client more than satisfied the criteria for HRC/MRM. Only medical evidence used was a dodgy GP report ( completed by a GP client never usually sees) and some dubious info. from medical services stating how far client "should" be able to walk etc... ( Grrrr). Anyway, we identified this "evidence" as perhaps being the problem and clients regular GP was v.helpful/apologetic and provided a supportive report which she sent to me and also to TAS.

Last saw client a couple of weeks ago, completed TAS1 and I agreed to rep. and have started a submission. Client called me today to say that earlier this week she received letters from TAS and DWP. TAS letter informed her that they have been advised her decision has been revised by the Appeals Officer and as it is more favourable, her Appeal has been cancelled. She then opened the DWP letter and has been awarded HRC/HRM, backdated to date of application etc. Result!! Client thrilled and relieved not to have to go to Appeal.

So it's exactly the right result and quicker too so I'm really pleased, but now I'm just trying to get my head around what happened. Am guessing the Appeals Officer is a DWP person, as surely the only people at TAS who can make decisions are the panel, and case wasn't even listed yet? So how has case and additional evidence ended up back with the DWP when new GP letter sent direct to TAS? Does the Appeals Officer look at all cases with a view to representing the DWP? I have come across cases where a DWP employee preparing the submission feels an award is incorrect/should be made and if this is done the Appeal can be "collapsed" at this point. Also, I've attended Appeals where the panel haven't seen the client and simply made a decision when reviewing the evidence before the hearing, again this was v.strong case. Just can't quite figure out what happened here and would like to understand it. Sorry for lengthy post and obviously the main thing is the fab outcome for the client but does anyone have any thoughts?

Thanks

A victory indeed!!..the simplest answer to what happened may lie in the fact that even though the "new" evidence was sent to the Appeals Service, they would (as is their duty) disclose any new evidence to all parties concerned, including - of course - DWP... the appeals officer (another title for decision maker) then has a duty to consider the evidence in the case before any hearing (though I often suspect that this never happens/or at least happens ineffectively)...in this case s/he clearly saw the error of their (previous) ways. good one!

You sent the new medical evidence to TAS. TAS have to send it to DWP as they are a party in the case. DWP looked at it, accepted that the claimant was entitled and revised their decision in your client's favour. It is no different to a DM revising a decision when preparing an appeal.

It is a bit unusual for this to happen, but it shouldn't be. Whenever new evidence is submitted they should look at it and consider revising. It generally seems however as though either they don't look at the new evidence, or if they do, they simply leave it to the tribunal to sort things out.

My colleagues and I always look at all evidence provided in connection with an appeal with a view to seeing if the decision can be supported or if it can be revised/superseded without the need to have a Tribunal hearing. I am sure that appeals officers all over the country do this. We are decision makers as well as appeals officers so can revise or supersede decisions ourselves. That is why customers and their reps should always send their evidence to the Tribunal Service or the DWP well before the hearing and not produce it 5 minutes before. I have presented at many hearings where the evidence has been produced after the hearing has started and have been quite happy to concede the appeal immediately.( I did this once and was quite taken aback when the Chairman wouldn't let me, insisting on a full hearing!)

The authority for this is in s 9 of the Social Security Act 1999 which allows for revision of decisions by the SoS (in circumstances prescribed by reg 3 of the Claims and Payments Regs) and for any revision following and appeal to cause the appeal to lapse if the revision is in the appellant's favour. This will usually only happen if it is clear that the appellant is getting everything they have asked for or could legally get, obviously the case here.

An appeal can be treated as a request for revision, or the DM can revise off his own bat if appropriate. It's my impression that his is happening more often than it used to and I have certainly come across the situation where a PO concedes at tribunal before evidence is taken.

My comments about new evidence not being considered were mainly directed at DLA. It is certainly my experience that local DWP offices are far more likely to carry out reconsiderations or to concede appeals if evidence is presented at the last minute. DLA however rarely do so, although it does seem to be getting slightly more common.

Thanks for the replies. Seems quite obvious now that the DWP can act after seeing any new evidence and in this case they have - guess I was just a bit taken aback as I've never encountered it before! But snaps to the DWP for doing it and saving my client the ordeal of going to Appeal, which she was really dreading. ( Guess I need to improve my support/reassurance techniques.....)

Interestingly for Keith's point, it's actually been in DLA I've mainly seen this, but that maybe just reflects a very high DLA workload. Maybe it's because it's only recently in our area that POs have been turning up at tribunals on any kind of regular basis.

I have just experienced the same outcome as yourself, client was looking for HRM and LRC of DLA.was turned down,only evidence was client's and dodgy GP report, decision was reviewed, but no award given.Went to tribunal in January,tribunal adjourned for more evidence EMP report,Which was very favourable to client.Tribunal listed for 22Feb,then post pops through letterbox yesterday with two letters,one from Tribunal service telling us appeal has been dropped and one from DLA award given.
Happy with decision, but what really irks me is DM submission at tribunal,"no entitlement as it has been established client does not satisy conditions"
DM's continually put this wording in submissions when in reality they have failed to establish anything factual.

Increasingly we have noticed that DM's ignore the fact that whilst GP's can confirm the diagnosis and medication, they cannot provide anything other than an opinion on how the condition can affect the client on a day to day basis. They are also not following the DM guidance on the subject - see below

We've just had a Tribunal adjourned to obtain an EMP report because they felt the GP's report was less than helpful - as it would have been because client had moved not long before making the claim.
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DMG CHAPTER 51

51.3 Sources of Further Evidence
51.3.1 General Practitioner Factual Reports (GPFRs)
(i) A special fee payable to individual GPs has been agreed whereby factual information based on a patient's clinical records will be provided. The fee does not extend to the provision of an opinion and so, unless the information is already contained within the clinical records, the GP will not be in a position to provide it. It has to be understood that individual entries in a patient's clinical record are relatively brief and will usually concentrate on diagnosis, clinical
findings and treatment plan. The records will not really contain any
meaningful information relating to care and mobility needs. In general
therefore GPFRs can provide useful information on the diagnosis and overall severity of a person's disabling conditions. It will not usually be appropriate to ask specific questions about the help a person requires unless there appears to be gross under-or over-representation of those in the claim pack.

Doesn't it really annoy you when it says in the decision) that it has been established there are no care or mobility needs when the GP has specifically indicated that s/he doesn't know? They seem to assume that if there were the GP would know. Most GPs at most see the claimant walk from the seat in the waiting room to the consulting room door - at my doctor's that can't be more than 5-6 metres at most.