I wish to ask tribunal to direct a new EMP report on basis the existing one should be discounted. A complaint was lodged and the appeal adjourned until outcome of complaint known. Customer detailed various scenarios which occurred and EMP has simply stated he has no recall of these events and goes on to describe other scenarios which my client is completely refuting happened. The investigating officer at medical Services has stated as a third party not in attendance he is unable to reconcile the differences between the accounts and goes on to say "I would like to assure you that where definite conclusions can be drawn that such actions as you have outlined have taken place, they are not considered to be compatible with Atos Healthcares Professional Standards" and he has asked Customer Relations Medical Adviser for advice who has opined report, exam and interview carried out in accordance with standards. I am looking to quote this area but want something in law to hinge my request on to ensure another EMP report is directed. I've been trawling Human Rights Act etc for fairness etc but feel I'm not quite pinpointing what I'm trying to argue.
Does this make sense and can anyone offer any advice please?

i dont think there is anything in law that you can use to ensure a new emp is carried out. more likely you will be left to argue out what weight should be given to the medical evidence at a tribunal.

to be honest though i wouldnt even go down the route of asking for a new emp to be carried out as in my experience very few are positive so you may in effect just strengthen the departments case if another one is carried out.

Thank you. My favourite saying in this job -
"if you look long enough and don't it find it then it doesn't exist"
Emma

if you find something to demand an emp not be carried out i would be more interested in that!

I think the fact the investigating officer states "I would like to assure you that where definite conclusions can be drawn that such actions as you have outlined have taken place, they are not considered to be compatible with Atos Healthcares Professional Standards" gives you good grounds for another report, if you wish to go that route, despite what the adviser says

On the other hand it may be better to try and get the existing EMP report reduced in weight at the tribunal because of the conflicting and unresolved issues.

Or you could try and seek adjournment on the day for another EMP because of the unresolved conflict over the report.

Thanks for the sounding board, that is clear now what I want out of this - not a new EMP report at all but to reduce weight of exisiting one.
It's very useful to be able to come on here and give an idea of what I am looking for and someone to look at it and give me some clarity.
You can get all wrapped up and confused in this job.
Thanks.
Emma

If there has been any significant change of circumstances since the decision, a new EMP is a total waste of time and money anyway.

Update - lost case. Client was on an uphill struggle once she accused the judge of being "smug" and proceeded to have a proper argument with the disability member.
cringe.

Doesn't sound like the panel were very professional?

Are EMP report's biased against clients? Or is it just that we only tend to see the EMP reports when clients have been turned down?

Very good point iut044

I hope a request for written reasons is going in, Emma. Being rude to the judge is not a great idea but it is certainly not a reason for rejecting the appeal. The statement of reasons should be interesting to read in any case but may well provide you with an argument on which to go to the next level.

I wouldn't be too sure. I am currently on my third DLA appeal in a year where we're going to tribunal with no medical evidence other than the EMP report.......

Iut044 makes a fair point. It would be entirely unreasonable to assume that EMP’s as a whole were biased against claimants and I would be very surprised if anyone on these forums were to make such an allegation. As advisers, we all hear these kinds of allegations from clients from time to time. I had a client recently who was assessed by occupational health. Not long after her DLA was lost on renewal. She was convinced (and it was a conviction that just couldn’t be shifted) that Social Services had conspired with the DWP to “get her.”

She lost the appeal so then the tribunal also became part of the conspiracy. And no, it wasn’t a case with mental health issues. She just didn’t get it that the fact that she told the tribunal that she regularly walked a distance amounting to just over a mile might have had something to do with the fact that she lost the appeal But then again, she also mentioned something about a second gunman on the grassy knowle.

I’ve seen some really supportive and sympathetic EMP reports, as I’m sure we all have. I’ve also seen some really appalling ones full of value judgements and clinical opinions which were so far removed from other evidence and known facts.

However, what annoys me is those other types of report which have the air of a mantra about them. How many times do you see that the client can walk 200 metres for instance or “can use stick to prevent falls.” If only it were that simple.

I used to think that EMP/healthcare professional reports were biased after winning a couple of appeals when ridicolous things were written in the EMP reports.

However, after undertaking training courses and looking at IB85's for DLA appeals, I have changed my opinion.

For example, I had a client who I got hold of his IB85 for his DLA appeal. The IB85 said that he needed alcohol before midday, even though the only indicator was that he seemed depressed and the client said that he needed to drink every day. This was quite a suprise to me as I helped the client fill in his IB50 when we discussed at length the fact that although he drunk heavily during the evening, he never started drinking until 2pm and he did not have any cravings during the mornings. The points he got for this ended up being decisive in keeping his Incapacity Benefit!

EMP/healthcare professionals have an extremely difficult job to do with only a limited amount of time to do it. They make lots of mistakes both favourable and unfavourable for the clients.

Like I said above - the problem can as like as not be the standard of DWP decision making. I've had a fair number of cases where we've gone to tribunal and won with nothing more than the EMP report that the department have decided to commission but then chosen to ignore - I've got two such cases on the go at the moment.

And I'll never forget the case of the client with the kid with Down's Syndrome where I helped her complete the claim, gave a list of about six speech and language/play/occupational therapists involved with the child's care and the nil entitlement decision came back stating that the claim pack alone was used to determine the claim. Fairly confident that I know what I'm about when making sure a claim addresses entitlement conditions, I complained and appealed on the client's behalf. Result of the complaint - "no evidence that the decision making process was anything other than properly conducted". Result of the appeal - no tribunal required - high rate care, the most that could be awarded given the kid's age.

But that said, I've always been concerned that the employment relationship - or rather the lack of such a relationship - between EMPs and the department is one that is potentially open to abuse. Not to put to fine a point on it, I wonder whether an EMP who provides too many favourable reports might not find the amount of work their given drying up. Back in the day of BAMS/SEMA my doctor sister carried out PCA medical examinations - she reported that her training resulted in the unequivocal message that there was an expectation that no more than 20% of the claimants she examined ought to be found IFW as a result of the descriptors she found to be applicable.......