Hi I know it is Friday but I am running short on knowledge here so decided to post and hope some helpful colleagues will know more.

Client N 20 years old Care Leaver, did not claim any benefits since he lost his job and felt ito deep depression. Applied for ESA, HB, CTB in September 09 and asked for a 6months backdate due to Mental Health and other personal issues.

HB are now asking for a letter from medical proffesional but I only have his current sick note and the GP refused to backdate Med Cert as client was not seen until September 09.
Client received support from Mental Health Team recently as had an overdose of LSD, Alcohol.

There is a court order as his rent arreas are very high, I have asked HB to acknowledge as well the other facts such as his traumatic childhood etc.

In the past I have never been asked for medical evidence for the purpose of HB backdate.

Have anyone had any similar problems ????

Any help appreciated.

Regards,
Antonina

A medical certificate in itself is not "necessary". Even if there had been a medical certificate, that would not in any case automatically shown good cause for failing to claim earlier.

What it needs is a clear and straightforward explanation of why there was a failure to claim earlier. If the LA refuses (or already has refused), appeal. A Tribunal may easily arrive at a different conclusion - it may decide the clmt's explanation is "credible", irrespective of any supporting evidence (or lack of).

I have explained clearly why he failed to apply but they are insisting on a medical note even though I explained the reasons as to why cant we provide this information.

I dont know why are they so difficult knowing that type of clients we are working with. In itself I dont believe that for my client was reasonable or expected to seek support from family or friends in itself his depression led him to isolation and this prevented him of making claim.

Thank you

It's not legally necessary since the overall question remains whether there was good cause, but it's clearly very helpful to have some medical evidence and our HB department certainly routinely requests it.

There is no need for such evidence to be in the form of a Med.5 however - in fact a short letter exlaining your client's condition will probably be better evidence for this purpose than a skimpy Med.5.

The doctor can legitimately claim to be have difficulty providing evidence if he hadn't seen your client during the relevant period; however there is no reason why you can't ask him whether it is likely that your client was suffering from these problems from March, on the basis of his condition in September.

Other evidence from anyone else involved, eg his personal adviser in the Leaving Care Team, can be useful also.

Richard Atkinson

I provided supporting letter already and asked them whether a letter from the manager of Leaving Care Team would be helpful they replied NO. Only Medical cert or a letter from doctor.

can I use any legisl. in my argument???

Thanks

Sorry forgot to add

Re: Doctor

when I asked about a letter or med 5 to be provided he said that yes he agrees that clients with such depression more likely attend the surgery few months later from the date the depression started. Ihave asked him to put this in writting and he still refused.

Get the evidence from the LC team and send it in anyway - it all counts. Do your own statement as to what the doctor said and put that in. No particular legislation to quote - this is all very well established and uncontroversial. Just a question of assembling the best evidence you can to show 'some fact which, having regard to all the cirumstances (including the claimant's health and the information which he received and might have received) would probably have caused a reasonable of person of his age and expereince to act (or fail to act) as they did'. That's the sum total of law involved - the rest is evidence.

A GP may well refuse to issus a medical certificate in these circumsances as its not part of the NHS contract. Alternatively, the GP may well charge for giving a report (typically £25 to £60) and this is money your client simply does not have.

If you want to put a legal argument that the medical certificate is not necessary you could start by citing para 43 of the Tribunal of Commissioner’s decision R(DLA)3/06 because the decision maker or the Tribunal need not be constrained by a lack of medical evidence

"43. “Those care needs have to be assessed on the basis of all the available evidence. As the authors of “Wikeley, Ogus & Barendt’s The Law of Social Security” (5th edition (Butterworths, 2002) at page 680) observe, clinical tests cannot themselves determine functional incapacity, e.g. an inability to self-care. However, we agree with Mrs Commissioner Levenson (at paragraph 8 of the Common Appendix) that medical evidence, although not essential, will in many cases be important in determining whether a claimant has a disability, and, if so, in determining the extent of the care needs to which the disability gives rise. For example, some medical conditions (such as the loss of a sense or a limb) give rise to obvious functional impairment. Others (particularly psychiatric conditions) are diagnosed by reference to a constellation of symptoms, and where such a diagnosis is made one might assume (or at least expect) certain symptoms or patterns of behaviour. But that does not mean that, in the absence of a diagnosis (or even in the absence of any medical evidence), the statutory criteria will necessarily fail to be satisfied. There will be cases in which there has been no medical diagnosis of a disabling condition for some particular reason, for example, because a person with a psychiatric condition is unwilling to undergo treatment, or perhaps because of a shortage of medical resources in a particular area. The absence of a diagnosis does not necessarily negate entitlement to DLA, and the absence of such a diagnosis does not lift from the shoulders of a decision maker or tribunal the burden of assessing the evidence of disability such as it is. For a tribunal, in the absence of a determinative diagnosis, all of the evidence of the functional abilities of the claimant will need to be considered, relevant findings of fact made in relation to those abilities, and a decision made as to whether the disability is such as to satisfy one or more of the statutory tests in section 72(1)(a) to (c) and section 73(1)(d). “

If medical evidence may not be crucial to entitlement to DLA, a benefit that is often predicated on someone suffering from a medical condition, why should a decision maker in a housing benefit case determine that good cause to backdate HB entitlement is not shown, merely because of the absence of a medical opinion.

I don't think Howard Levenson would appreciate the sex-change!

I think it's not unreasonable for the LA to ask if medical evidence is available. But it is unreasonable to go as far as making it obligatory, to refuse to backdate without it or to ask for it when it will be charged for by the GP.

The bottom line here is the standard of proof, which is oft forgotten by benefit administrators who claim some legal right that claimants "prove" their circumstances to the nth degree.

It is settled law that claimants should be believed unless what they say is either "inherently improbable" or "self contradictory": R(SB) 33/85 and R(I) 2/51.

Therefore, the advice given earlier ought to enable you to more than adequately show that there is continuous good cause for late claim.

If the LA maintain their stance, I think you should insist they make a decision to refuse backdating, thus generating a right of appeal (you should then ask the Tribunal Service to list the case for an urgent hearing with a Direction to the LA to supply a submission within 14 days). You should also make a formal complaint to the LA's Monitoring Officer (usually the head of legal services) because what they are doing is unlawful. Also wouldn't do any harm to raise this with an intelligent and sympathetic local councillor.

I cut and pasted para 43 of R(DLA)3/06 and looking at both the reported decision and the unreported version, its clear that Howard Levenson is a man.

Its even more embarrassing given that he sat on the Tribunal of Commissioners that agreed with his earlier analysis. How did I type an "s" next to "Mr."?

Nevertheless, there is no doubt that the Council are on very shaky ground indeed if they continue to insist on being provided with medical evidence that cannot be obtained

Are you sure the La are "insisting", or, asking?

Unfortunately guidance given to La decision makers with regard to "good cause" may make some less confident decision makers request something that is either not available, or, unreasonably difficult to obtain eg. med cert for past period.

Your client may need to appeal, also if the La has a blanket policy along the lines of, "if you are sick you will obtain a med cert as proof" then a gentle complaint letter may be appropriate.

Your local Tribunal User Group could also be used to to guide the La if this is the way they go on cases such as you have described.

Thank you everyone for your support, will follow the advice given and will update you further.

Thank you once again

Case gone to a manager at HB department, was told that they may pay just this once but not in future Will know by Monday / fingers crossed/

It's good to see some progress on your case. However, if they are setting out a policy (informal or otherwise) which limits how they will bakdate, this is wholly wrong as a matter of law. When considering backdating issues, they are required to follow the legislation and caselaw, not make it up which is what is implied here.

I really do think that the local Authority's Monitoring Officer must be alerted for the sake of other people in similar circumstances (backdating when medical or disability issues arise). Arguably, their actions to date may also raise issues around disability discrimination.

It also sounds like the local authority needs to invest in some training.

Can you tell us whih local authority this is? Is it LB Barnet?

I tend to ignore the implied threats in decisions to backdate "just this once" as being in the same vein as those signs you sometimes see in shops which say that no refunds will be given.

Whilst I would probably take my business elsewhere if I saw a "no refunds" sign, you cant take HB claims elsewhere.

Mr Commissioner Williams acknowledged in CH/0474/2002 that the reasonable person test posited in R(S)2/63 may not apply to a person suffering from mental health problems. He wrote at paras 8-11:

"8 Mr Berry took issue with this analysis as inadequate in identifying the nature and effect of the claimant’s mental problems and in approaching the test of good cause as it applied to the claimant with those considerations in mind. If the tribunal did not have enough detail, then it should have sought further evidence either itself or from the claimant. In considering that point, it is relevant to remember that for an appeal about housing benefit the tribunal has no medical member so is not in the same position to evaluate medical evidence as it is for many appeals. But the particular issue on which Mr Berry submitted that the tribunal was wrong was that it had assumed reasonableness on the part of the claimant in a way that was, he argued, inconsistent with her mental problems. Her problem made people react unreasonably, so it was inappropriate to apply the “reasonable person” test to her without that in mind.

9 I agree with that submission. The test from R(S) 2/63 refers to the “reasonable person” of the claimant’s age and experience. But it also refers expressly to the health of the person. If it be the case that a claimant suffers from a mental problem that makes him or her act unreasonably, then that must be borne in mind. In such a case, the terms of R(S) 2/63 must be adjusted to take that unreasonableness into account. As “reasonable unreasonableness” is meaningless, perhaps in the context where there is medical evidence that the reasonableness of the behaviour of the claimant is in question the test might be phrased as applying to the typical or probable reaction of a person of that age and experience who was suffering from the particular mental health problems of that claimant. But it is a question of fact.

10 Applying that approach to this case immediately raises questions that cannot be answered from the statement of facts and reasons of the tribunal. It did not identify the mental problems of the claimant or whether those mental problems made it likely that she would not act as a “reasonable person”. I was not in a position to do that at the oral hearing, and in any event the Borough Council was not represented there. I therefore refer the case to a new tribunal to consider again whether the claimant did have continuous good cause for her late claim taking into account her mental condition together with all other circumstances.

11 The claimant and her representative have put in further medical evidence as part of this appeal. That is not relevant to my decision, save that it indicates the direction of enquiry about the specific mental problems of the claimant that the tribunal did not pursue. But I refer that to the new tribunal. If the claimant and representative wish to submit any further medical evidence then they should send it to the tribunal office within one month of the issue of this decision. "

CH/0474/2002 illustrates how good cause ought to be considered in the context of mental illness. It also illustrates the circumstances where medical evidence is desirable, but also the limitations of medical evidence, gvien that decision makers are not medically qualified, and there is no medically qualified panel member on tribunals hearing HB cases

Thank you for that