I currently have a client who did not attend her medical because of he mental health. She has problems detailing with her post and has to wait for someone to deal with it for her. Her GP is very unsupportive and will not write the client a supportive letter for the tribunal. I have found a commissioners decision C10/97(IB)does any one have any tips for tribunals HELP IF YOU CAN !!!!

(I've quoted English Regs- I know the NI ones are the same.... sorry)


Check very carefully that you do have to rely on the "good cause" provision in Reg 8(2) of Incapacity for Work Regs-

Reg 8(2) only applies subject to Reg 8(3)- so where the Department cannot prove that they gave written notice 7 days beforehand of the medical or the claimant agreed to accept a shorter notice period then good cause is irrelevant.

Look at what evidence the DWP (or its NI equivalent....) have offered of notifying your client in writing. Is it sufficient? What does your client say about when/if a letter arrived?

It is always worth having an argument that works like:

1. The DWP cannot prove they complied with notification period.

2. Failing that my client has good cause.

"Good cause" is defined quite widely (the matters mentioned in Reg 9 are only some of the issues to be taken into account). The case law on the old Reg 19 of Claims and Payments is relevant- there is a good summary in (I think) the 1996 issue of Bonner.

Good luck.

Thanks

I have had loads of these in the last few months, whether client missed medical or not they are appearing to win at appeal.

Ther is often no proof that the letters have been sent, sometimes there is too much proof which does not tally with clients letter.

Mental health should be considered as good cause, especially if help is needed to attend.

Hi Mairead, further to Martin and Gary's points imparticular Martin's suggestion about your client's good cause for not attending the medical.It might be worth being very lateral and stressing your clients diagnosis and the symptoms stemming from her mental health issues and how it affects her social functioning, for example reading in between the lines it sounds like your client might have a tendency to socially isolate and withdraw and is may be reliant on others when it comes to dealing with the wider community and all the issues that raises.Has your client social phobia's eg dealing with her post which affects her ability to function.
Medication eg is she on anti depressants,mood stabilisers or antipsychotic drugs and are their side effects.Does she attend any day care centres.
It might also be worth illustrating how her illness affects her day to day life with anectdotal examples.
If she does not have a NHS worker or a social worker is there anyone else eg local housing worker or Church worker eg a priest who could provide helpful evidence in her favour.
anyway good luck.
ps check out the swop shop BHAS do a very fine factsheet/pamphlet on the PCA, infact it's so good you might even find it so inspirational that it will give loads of good ideas and prompts for the clients good cause argument.

thanks for everyones help, unfortunatly, the client lost her appeal, but I will keep your suggestions in mind for other appeals.

That'll be a statement request then?

I had a case like this recently. The appeal was successful, but we reduced the risks of losing by entering a new claim as well.

I've just come back from another hearing concerning a failure to attend a medical examination.

My client had phoned the medical examination centre to let them know that she was too ill to attend. The appointment was cancelled and referred to the DM. The DM decided that she did not have 'good cause' for not attending as she'd failed to attend previous appointments as well.

At the hearing I quoted R (IB) 1/01, which addressed the issue of whether a claimant could fail to attend a cancelled examination. In that particular case the Commissioner held that once the medical examination had been cancelled, it was impossible for the claimant to fail to attend it.

The DM confirmed that the appointment had been cancelled. I agree it was cancelled. However the appeal failed - the chairman commented that it really depends on your definition of 'cancelled'.

My request for a statement of reasons is in the post!