Hi

I became a representative for a client with relation to his Incapacity Benefit appeal about a month ago. He now wants to withdraw his appeal because he says he wants to look for work. I spent a long time trying to persuade him against this course of action including saying that he could still look for work whilst receving Incapacity Benefit. I tried every argument I could think of to get him to change his mind. However, he was adamant that he did not want to continue.

The client received six mental health points in his PCA and both myself and a colleauge who have spoken to him feel that he clearly meets the criteria for Incapacity Benefit. We also feel that he is not mentally competent to make this decision.

Is there anything we can do to make him carry on with the appeal against his wishes. He is probably not bad enough to be sectioned. I am thinking maybe somebody becoming his appointee or gaining power of attorney over him. However, he does not have any close friends or family.

I have also not written to his GP yet and I know do not have his consent to do that.

Thanks

I suspect that the answer is that you may be able to persuade the Tribunals Service and DWP that he shouldn't be allowed to withdraw, though at the moment the consent of the Tribunal is not needed for withdrawal (it will be different under the new procedural rules). However there is no way you can compel him to cooperate with the appeal procedure, eg by going along and giving evidence or obtaining evidence for a paper hearing. This means that his appeal is pretty unlikely to succeed.

How long ago was the decision? How long has he been without income? Can you persuade him that even if he claims JSA now, this would fill in the gap until the strat of his JSA claim?

Thanks for your help Adriane 2

The decision was a few months ago. The client is unable to claim JSA because he has not made enough paid national insurance contributions and cannot claim Income Support becase he has signfiicant savings. I have warned him that he will not be able to claim any benefits until his savings are almost completely gone but he was absolutely adamant that he wanted to withdraw.

Mental Capacity Act 2005

Every adult has right to make his or her own decisions, and everyone should be assumed to be capable of doing this
unless actually proved otherwise

Philip Boyd

Adriane 2

On the not being able to make him cooperate point to give evidence.
If somebody had power of attorney over him could they not give permission for myself to write to his GP?

The straight answer to the original question is "no". A third party does not have any right to prevent a claimant from withdrawing his/her own appeal.

While completely understanding your view of the situation, I nevertheless think it is very dangerous ground to try and prevent someone from exercising their rights in such a way.

Playing devil's advocate; if the clmt is not thinking straight in terms of withdrawing his appeal, was he thinking any straighter when originally making the appeal? The point being; who is to tell the clmt how he should conduct matters relating to benefit (subject to the law / sectioning etc)?

Just to be clear, I have advised on matters for LAs but, more recently, for an increasing number of appellants. Bottom line is, both parties have, on occasion, chosen to ignore my advice / suggestions. Of course, I think they are utterly *wrong* (sic). But, I don't think that gives me the right to try and impose further, other than reminding them of the reasons for that advice.

Apologies if this seems a bit of a "pop" - I'm aware it can be an extremely fine line between trying to assist and interfering.

The Mental Capacity Act Code of Practice is useful in setting out powers and duties.

http://www.justice.gov.uk/docs/mca-cp.pdf

Philip Boyd

A question and a thought: Have you or your colleague any expertise with which to make an assessment of mental competence? And just my personal opinion, but free will also includes the freedom to make the wrong choice.

Mon 20-Oct-08 06:32 PM by iut044

Thanks for everbody's help

Neither myself or my colleague are medically qualified. However, we are experienced in dealing with people with mental illness. There are things that he has done in the past that suggest that he is not fit to manage his own affairs that I cannot write here because it would suggest who he was to people in our area.

However, from reading the Mental Capacity Act Code of Practice it appears that he does not meet the criteria for somebody to be appointed to make the decision for him as he understands the implications of the decision. It also makes the point that Sue Welsh has made that making a wrong choice in itself does not make a person mentally incompetent. However, even taking this into account I feel his illness is leaving him in such a fragile emotional state that he is not fit to manage his own affairs.

The other option suggested here is to ask the Department of Work and Pensions or Tribunal Service to continue with the appeal against the wishes of the client. However, this would only have a realistic chance of sucess if evidence was gained from his GP. I cannot do this because my client has said that he does not wish myself to take this course of action.

As the client has completed the TAS1 form and signed the box to give the Tribunal Service permission to gain evidence on his behalf do you think there is any chance of the tribunal panel writing to his GP under these circumstances if the appeal proceeded.

That would still mean you'd have to go against the client's wishes in allowing the appeal to continue.

If it were my case, I would suggest to client that if he really doesn't want to go, he doesn't go. But he should still allow the tribunal to do thier job, blah blah. If he agrees, I would write a letter (not a sub) to the tribunal chair explaining the situation, and highlighting briefly the outcome sought and a summary of the available evidence (I've done similiar before with good results).

If he disagrees with this and insists on withdrawing the appeal, I would do as instructed and wait for him to return at a later date, with the possibility of a late appeal or assistance with a new claim.

I understand the frustration that these situations can cause, but it would be wrong to act outside of the client's instruction (may be a good time to refresh yourself on your organistations client care policies such as confidentiality) and could mean the client never returns to your service if he feels you have broken his trust in going behind his back. More harm than good...?

Tough one... all the best.

Thanks for your help Tony Bowman

I have already said to the client that he may not have to attend if I could get a supporting letter from his GP that could lead to a sucessful reconsideration taking place. However, he was adamant that he wanted to withdraw the appeal.

It looks like I am probably going to have to go along with the client wishes and withdraw the appeal.

In my view, it is a very slippery slope down to an abyss that you are proposing to charge, and in my view recklessly. As 'rights' advisors, we can’t seek to impose 'rights' on people when we think it is in someone else’s best interests! I have been both a rep for appellants at hearings, and a PO for LA's, but part of this job is knowing your place within the system...

It is one thing to enable and empower, another to disempower! By seeking to remove person’s rights to withdraw their appeal, you are disempowering, and I would suggest, contrary law. Try running it past a Chair in a hearing – “ I am here today to represent someone who has already withdrawn their appeal. Of course I didn’t take that from them in writing – as I want to be here anyway and a written statement withdrawing their appeal would prevent me being here – So I have decided the regs about withdrawing appeals don’t apply and neither does case law e.g. R(SB) 33/85 or R(IS) 5/93 where verbal statements are as good as written ones in absence of written evidence! So can we get on with this, as I know what’s good for my client, even if my client is on the Dagenham side of Barking!”,

If you were employed by a LA, your proposed actions would likely breach several fundamental sections of the HRA and give rise to possible legal redress against the LA! I is only because you are seemingly employed by private body that the HRA does not apply – but I hope you understand the significance of what that means?

So after this, where next? Suggesting to a client – “Do you know that by being partially sighted there are no non-dep deductions? I have this pencil and it won’t really hurt!” Or “With only one foot, you can likely get DLA Mob. I am convinced you will get the higher rate and I have this hacksaw, please remove your left shoe, and wait for the cash!”. These are silly suggestions, but perhaps not too distant from what you are proposing?

That said, Rant over!!!

However, if you are worried about this person’s ability to make decisions for themselves, there is another alternative. Every local authority has a ‘vulnerable adults’ section (sometimes this is incorporated into the adult protection part of the service). You can contact this person’s LA and ask for that section and inform them of your concerns and ask for assistance.

I would suspect that your client will not meet threshold, but you should try and explore this avenue with the local authority because if there are concerns, they have statutory power to intervene and you being the welfare rights expert they would likely consent to the appeal being pursued by seeking to persuade your client further. If however your client does not meet threshold, then on that basis alone, you should allow your client to make their own mind up about how they live their life!

On the point you asked me some posts back - does anyone have a power of attorney for him? You are given a power of attorney by a person who wishes you to have the ability to act on his behalf, either generally or for a specific purpose. It does not remove the right of the individual creating the power of attorney to go on dealing with his affairs, and is revocable at will unless it is an enduring/lasting power which has gone through the procedures to make it irrevocable. Only then can you talk of someone having a power of attorney "over" somebody else. The creation ahs to be of his free will.

For example, after my father died, my mother decided to go into a care home, 200 miles away from her old home and near to my sister - entirely her decision. She was very depressed but mentally capable. She gave me a power of attorney to sell her house and transfer all her bank accounts, finalise bills etc, as she didn't want the hassle. After the move, the authority ceased. Meanwhile she continued to handle her own affairs in her new home.

Thanks for the information ariadne2

Nobody has power of attorney over him and he certainly would not consent for this to happen. I was thinking about a court appointing somebody to have power of attorney over him against his will but this is clearly a non-starter.

Thanks for your help HB specialist

Just to clarify my question, I would not dream of hiding from the Tribunal Service or the Department of Work and Pensions that my client wanted to withdraw from his appeal. To act otherwise would clearly be illegal and unethical.

What I was considering originally was maybe writing a letter to the Tribunal Service saying that my client wants to withdraw from his appeal but I have advised him against this and in my opinion (although I am not medically qualified) he is not mentally competent to make this decision.

However, from the replies on this thread this does not seem practical and I am inclined to withdraw the appeal after giving my client a "cooling off period" and confirming my advice in writing.

As for your suggestion about the "vulnerable adults" section of the local authority, is this similar to a mental health advocate as written about in The Mental Capacity Act Code of Practice? If so my client does not meet the criteria for this as he does understand the implications of his decision.

On a wider point my motivation for this is not that I want to interfere in other peoples lives. I have never even considered doing this before and I have been giving benefits advice for around two years. I just felt that this is a hugely vulnerable person whose mental illness is affecting his judgement. By the way, I do not mean the last paragraph in a confrontational manner, I really appreciate all the effort that has gone into the posting and the research. I also understand the civil liberties/adults have got a right to make mistakes argument.

I do understand why you're grappling with this, and I have dealt with similar cases before when I worked in a WRU in a psychiatric hospital. I had clients decide not to pursue claims and appeals for all kinds of, what we thought were, wrongheaded or incorrect reasons. At the end of the day, that is their absolute right and I do not feel that you should be tempted to intervene in the ways you have been considering.

Remember, you do need to be very very clear about the limits of your responsibility - as has been noted above, your client expressly has the right to decide exactly what he wants to do, unless his actions are putting himself or other people at risk of harm.

Even in such a situation, your responsibility should, at most, be to alert relevant authorities to your opinion of this potential danger, not to intervene. You are a rights adviser, not a medically qualified professional, not a social worker, not a legal enforcer. If you advise someone that their appeal is without merit, for example, and they then decide to pursue it without you regardless, you (presumably) wouldn't intervene further - this is the converse of that situation essentially.

I suggest that you consider drawing up a code of conduct or include this type of scenario in your confidentiality policy, covering issues such as the limits of your involvement, the procedures to follow if you think someone is taking detrimental action, the issuing of written instruction, etc - like I said at the start, I think I understand and empathise with your honourable intentions but sometimes there are very clear limits as to what you should seek to achieve.

I think Paul has perhaps said and summed up the above discussion nicely, so will say no more about that, as it was not my intention to 'have a go' just to highlight certain areas not covered in pervious posts. For my part I have also worked with clients over many years who refuse to do what I think is in their best interests, but you have to live with it!!! I am working with a client now who if only they would sign a complaint letter, that I am prepared to write, I could have them re-housed sooner rather than later, which is something the family want, but my client is refusing to make a formal complaint or see her elected member etc. - I think that’s a bad decision, but one that my client is allowed to make...

So, iut044 (and I though my username kept my anonymous!), no the vulnerable adults section is not part of the mental health professionals that you refer to, quite different in fact. The professionals you refer to often work under the Mental Capacity Act, but vulnerable adults is different (though this differs from one LA to another), and teams might well exist at both District and County Level in non-unitary LA's.

Mental Health Services are quite diverse, and maybe the best way of looking at this is that services are tiered, on levels of seriousness so to speak. So an Approved Social Worker (ASW) and a Consultant Dr. can 'section' someone and cause a person to be 'detained' under the Mental Health Act, and only that section takes away a persons rights to determine what is in their own best interests. This is about as serious as it gets as in many ways the powers if not used correctly, can be quite devastating for the person detained, as those two professionals can remove your liberty for an ultimately an indefinite period, and so their powers should (must!) only be used where the person poses a real danger to themselves or others, usually life or death issues.

Then you have what are known as CMHT's (Community Mental Health Teams), and in those teams a mixture of social care and medical staff work together (e.g. CPN's), and mainly (but not always) work with people with enduring significant mental health issues, and people released into the community from section etc. to ensure they are stabilised in the community.

Next comes the 'vulnerable adults' teams in LA's to which I made reference. To give you an example I referred a recent mother of mine (I am a now a Children's Social Worker - Child Protection is my new bag) to the vulnerable adults team who was a substance misuser. That team agreed this mother was vulnerable, and agreed to notify housing so that they would be more lenient in not starting eviction procedures, (in my LA the eviction process is suspended when this ream are involved), and they were able to have police attend the family home to remove people who mum was just not emotionally strong enough to remove from her home/family, and whom she had given permission to remain in her home, but the vulnerable adults team were able to 'override' the mum's wishes, as it was an LA property, in light of her substance misuse and associated significant health difficulties, and co-ordinate services around mum, ensuring that the LA and NHS services worked together.

In some LA’s the vulnerable adult’s team is merged with professionals working in ‘adult protection’. This is a relatively new service in many LA’s (having been around for 3 – 10 years, unlike Child Protection services which have been around for decades), and they can override wishes when a person is considered too ill or disabled to be able to control their own affairs appropriately (e.g. the physical/financial/emotional exploitation of the disabled, those of pension able age, people with degenerative illness etc. but who are often not subject to the safeguards that can be offered by the Court of Protection, especially where they don’t meet threshold for Court of Protection).

The term ‘adult abuse’ and ‘vulnerable adult’ is often confused and misleading on many LA websites where the two services are merged in one team, as this is a new and rapidly developing area of social work, but you need to ensure that you are pursuing the vulnerable adult route (adult protection is similar in scope to child protection). In some ways, the vulnerable adult route does rely on the Mental Capacity Act, but the law of tort is also used to inform decisions and decision making processes, (as it is in Child Protection) and you need to ensure that the LA does not have a duty of care, even if the Act does not directly apply. I am not an Adult Social worker (well I am grown up, but I just don’t work with adults!), and so not sure about the Guidance issued by the government in relation to vulnerable adults, but it is worth remembering that most social work guidance is issued under S.7 of the Social Services Act 1970, and any guidance has statutory effect when issued under that section, so its worth finding the guidance issued by CSCI or the DoH (or both!), to find what the government expect from LA’s in this regard.

I suggested the ‘vulnerable adults’ team in your local authority for two reasons; the first being as this is probably the lowest threshold to cross, if your client was not picked up by that team, it would be an indicator for you as to your assessment of whether this person was able to make decisions for themselves. I.e. if the people who do this on a day-to-day basis decide that person is able to make such decisions for themselves, you need to re-consider your own judgements again. The second reason was to ensure that if there were issues of capability in financial affairs, there might be other self-care considerations too, and this person might need the support of such a service, and so perhaps you should refer just to ensure this person is not vulnerable and in need of additional support?

Hope this in some ways helps...

P.S.

I should have said too that any referral will need the consent of your client, unless you consider that he is being abused or explioted!

This is a very helpful booklet for those dealing with clients with such difficulties.

Making decisions
A guide for people who work in health
and social care

http://www.dca.gov.uk/legal-policy/mental-capacity/mibooklets/booklet03.pdf

Philip Boyd

Tue 11-Nov-08 02:11 PM by iut044

I gave the client a bit of time to cool off and confirmed my advice in writing with a disclaimer to sign.

The client has changed his mind and now wants to proceed with the appeal!

I attended the appeal with the client and he won!

All's well that ends well!

Marvellous stuff, well done.

Should do wonders for his confidence in you, and in the Tribunal system too.

Am v. happy for both you and your client - a happy christmas indeed! Well done you!!!