I have a client who suffers with anxiety and stress and self-harms. I submitted a backdate request for her and supplied medical evidence from her GP comfirming her health problems.

On receipt of this the LA wrote to the GP asking if he considered if the client was capable of managing her everyday affairs for the period of the backdate.

As the GP considered that the client was capable of managing her affairs the LA has turned down the backdate request.

I was under the impression that medical evidence should be taken at face value or have I missed something?

Any advice would be gratefully received!

There is nothing in HB/CTB to suggest that evidence of any kind "...should be taken at face value...". There are a couple of CDs (oft quoted by Derek Stainsby) which confirm that corroboration is not necessary. However, that doesn't mean evidence has to be accepted at fact value.

Surely what counts are the facts as a WHOLE - not just those that are selectively convenient. It just so happens that the GP has given his honest opinion. I see nothing wrong with that.

HOWEVER, that isn't the end of it. A GP's letter suggesting that someone is/was capable of managing her affairs is not decisive. You *might* still have decent grounds of appeal if your client can *honestly* state (and convince) a Tribunal (or even the LA) that her health was the cause of her failure to claim.

Further, there is a HB/CTB CD where the Cmmr found that there is nothing in the construction of the backdating provision that requires illness to be of a particular level of seriousness. The test remains the same - did the health issue amount to "good cause" for failing to claim earlier? (I'm trying to track down the CD reference - I'll post again if I find it).

That would be great! Thanks for your help.

this raises a point that crops up from time; how aware is a GP of how a patient is affected by their illness on a day to day basis and are they really qualified to say what they can or cant do above (for example) a worker who sees the client more regularly at home?

people with the same debilitation can be affected in different ways and unless the patient has fully declared to their GP how affected they are (possibly unlikely given the fairly short appointment times) is the GP's assumption to be taken as the undisputed "truth"

This is my point exactly! And why I am so annoyed that the HB Section queried the medical evidence in the first place!

The case Kevin was talking about was CH/5135/2001. However even in this case the Commissioner pointed out that what would matter was not the severity of the illness but “that the illness has to be severe in its impact on the claimant's ability to claim”.

In the light of this it looks like the LA concerned could well of been acting reasonably if they were trying to find out from the doctor the impact of the illness on the claimant’s ability to claim.

Clearly, I am not in position to speculate on the correctness or otherwise of the LAs decision not to award backdating. However, I think that, given the fact that you submitted a letter from the doctor as part of the evidence to say that your clients illness prevented her from claiming at an earlier date, you may now find it difficult to argue that the same doctor is not qualified to give that opinion.

i think the LA was very naughty to write to GP. presumably there was never any suggestion that your client was incapable of managing her affairs. Proof that a person is incapable of managing her own affairs is usually required when the DWP are asked to appoint a person to act on behalf of another (appointee) - this happens less frequently in any event these days, because thinking has changed... eg it was fairly routine in the 'old days' for Downs Syndrome claimants to have appointees, but much rarer these days. LA's Soc. Serv. departments sometimes require this evidence, and I wonder what GP thought he was being asked??

a person can have difficulty managing without being incapable of managing their affairs and needing someone else to do it. the implied reasoning that unless a person's mental health problems are so severe that they are incapable, they do not have good cause, would be, i would expect, wrong in law, besides showing poor disability awareness on the part of decision-makers.

why do so many decision-makers approach claims as benefit refusal if at all possible officers? is this anything to do with subsidies and back-dating?

Again, I cannot comment on the correctness or otherwise of a the decision in this case but I think that something important is being missed here.

If the evidence and information that had been provided had, in the opinion of the LA concerned been sufficient to prove that the claimant had good cause for not claiming earlier, they would not have written to the GP they would just have awarded backdating.

In other words the LA had looked at the available evidence and decided it was not sufficient in itself to prove good cause and they wrote to the GP for further clarification. As it turned out, the further evidence did not, in the opinion of the LA help prove good cause.

In these circumstances, if, as is being suggested here should have been the case, the LA had just accepted the medical evidence at face value they would still have decided that the claimant had not proven good cause.

Backdating now attracts full subsidy so that should not have been an issue.

thanks for the clarification on the subsidy, jeff. it would indeed be silly if you and i got into a spat over a particular decision without knowing the particulars. : )

on the general principles, you have spoken from pre-suppositions which, quite simply, conflict with my experience.. maybe the 'something being missed' here relates to the fact that between LAs, mileage varies. it is heartening to know that there are some LA's which approach claims from a position of neutrality, and will even go to some trouble on a claimant's behalf. i believe that is the right position for LAs to take, and i'm envious, for the citizens of brum.

in birmingham, if the LA did not think the claimant had shown good cause, i would expect them to disallow there and then. in the unlikely event that they took the initiative to make further enquiries of the GP, i would, on the basis of my experience of this LA suspect that they were going to lengths to obtain evidence to justify a disallowance. since there is no medical evidence requirement for good cause, and if medical evidence corroborating the medical condition had been submitted in support of the backdating application, and if they ask the wrong question, implying the application of an incorrect legal test, (which wouldn't be at all unusual!!!), i'd be steaming too.

Slightly off the main issue but if you were suprised by the LA writing to the GP then by implication the LA did not seek authorisation.

Which raises the question - by what right did the LA ask for confidential information and by what authority did the GP give that information?

The right to ask is HBR 86(1). Any "information" reasonably required in order to make a decision etc.....

The LA plainly decided it was "reasonable" to seek more info. It seems difficult to argue the info wasn't relevant. And the LA doesn't need the clmt's authority to approach a third party. There are (at least) 2 CDs where Cmmrs plainly envisaged that info can be requested from a third party (despite the wording of HBR 86 referring only to "claimant").

I'm also not convinced that the GP can (legally) be held to account. The DPA certainly won't be a problem - the LA was simply exercising it's legal rights. The only issue *may* be relating to any codes of conduct for GPs etc.

One other observation: would anyone be complaining if the GP had said (equally truthfully) that the clmt could NOT have managed her affairs? As I suggested in my earlier post, there appears to be a degree of selective convenience - even double standards at work here.

Yes Kevin but double standards and selective convenience can work in both directions. LA's are the quickest of organisations to refuse information by reason of the DPA.

I would not expect then then to ask for confidential information (and what is more confidential that a doctor's opinion) without permission which they could easily and reasonably request. As you say you cannot just pick and choose which rules you will follow.

I would be most upset if any Doctor of mine would give any third party opinions of my medical condition without my express outhority.

Thank you for all your input on this, it's been most interesting! I will be appealing against the LA's decision!

Without commenting on the merits of this case or whether there are double standards operating or not, I’ve yet to be persuaded that there would be no problems with the Data Protection Act whether the LA is exercising legal rights or not.

The Act is concerned with disclosure of information regarding the subject requesting that disclosure (section 7). Section 7(5) is not well drafted and might be wide enough to cover requests by third parties and section 7(4)(b) allows the data controller to disclose information without the subjects consent. However, this will rarely allow medical practitioners to do this as they would be prevented from doing so under section 7(6)(a) as they would have a duty of confidentiality to their patients.

Hi Nevip. I had s.35(2) in mind. It's surprisingly far reaching when push comes to shove. And, on both sides of the coin too. I had reason to quote it against a LA earlier this year (HB/CTB appeal for clmt). The LA maintained they would only supply the evidence it had relied on and would charge for anything more, citing DPA etc. I pointed out that the LA was required to provide ALL evidence RELEVANT TO THE APPEAL - not just what it thought was appropriate. I cited natural justice + s.35(2) + the threat of asking for a Direction from a LQPM. It had the desired effect...... (unfortunately, the Tribunal still found for the LA).

Having scrutinized the Data Protection Act again I am fortified in my view that the right of access under the DPA to information only applies to information about the subject who makes the application (subject access requests under section 7). Section 7 applications that can only be complied with which in consequence gives information on others may be granted in the limited circumstances contained in section 7.

The exemptions (of which information referred to in section 35 is one) mean that a right of access under section 7 by a subject to information relating to himself may be denied under the relevant sections.

Thus, the rights conferred by the Act have no application to requests by third parties as such. This is where the misunderstanding comes in, in my view. The actual situation is that third parties may have rights of access to information held on others, or that third parties are obliged to pass on information held on others, where there is a legal right to that information, or there is a legal obligation to disclose information to a third party, which is dependant on some other statutory provision. In those cases the protection afforded by the Act does not apply. However, there are good practices, which third parties must comply with. These can be found on the Information Commissioner’s website.

In the circumstances of this case I do not see any lawful reason why a GP is under any obligation to disclose information to an LA without the patient’s consent and the GP might be in breach of his obligation of confidentiality.

Is the world going bonkers or is it just silly season?

i should have thought it was obvious that if the LA was not satisfied that it had enough evidence to make a decision, it should have written to the claimant, and asked her to provide the clarification it thought it needed?

i doubt that any further medical evidence could be reasonably required, other than in most exceptional circumstances.

kevin is usually hot on the regs, but reg. 86 refers to the evidence requirement, which is on the claimant. it most certainly does not give LA's the power to ask GPs for information about claimants.

nor do i think a civil claim for housing benefit can be classed as 'legal proceedings' for sec. 35 in order to drive a coach and horses through the DPA. i have a great deal of respect for kevin, but suspect this topic has brought on a touch of heat-stroke. jutucker has very sensibly 'retired' after setting the cat among the pigeons here.. : ) judging from her other post about the non-deps, i expect she's got her hands full and more...

i am more interested in what on earth made the LA think it could go to her GP to obtain information about her. are they insane?

this is a really serious question.

whether they were seeking evidence to use against her or for her, is not, strictly speaking, relevant, although one is naturally a great deal more offensive than the other. the point is, wouldn't one expect that the knowledge and respect for GP's duties of patient confidentiality, to be part of the general knowledge and awareness base in the environs of a benefit section? i would certainly expect this to be understood by staff, who bring with them their own knowledge and experience as citizens, who must have some expectations of their own rights in this area, and surely shouldn't expect them to be lesser for benefit claimants? i'm talking about the type of knowledge which is embedded and transmitted in the _culture_ of the workplace.

if the workplace regime and culture is such that it overrides the good common sense of the ordinary people working in it, gives staff an impression of the unlimited power of the authority, or at least, no sense of awareness of the limits of its power, or results in a view of the people served as somehow 'other' than themselves as citizens - any one of these, in my opinion, there is serious cause for concern.

i believe there is a problem. David Davies has a point. Houston...?

but reg. 86 refers to the evidence requirement, which is on the claimant. it most certainly does not give LA's the power to ask GPs for information about claimants.

Just on the issue of requesting info from 3rd parties generally, HBR 86 does indeed,, at first glance, limit enquiries to the clmt. However, there are at least two CDs where Cmmrs have made it clear that info etc can be requested of 3rd parties (landlords in Reg 8 / 9 cases).

I think there isn't much to be gained from offering more on s.35(2) other than to readily acknowledge that this does not create an obligation. But, in my view, it does mean that there will be no breach (the distinction extends to exercising legal rights, not just legal proceedings). I reiterate, from experience, this provision is also surprisingly useful when used on behalf of claimants....

Had the GP refused (as s/he was certainly at liberty to do so), the LA would have been able to make a decision based on what it already had. In the case referred to in this thread, it appears that LA were not satisfied GC had been shown. As such, the decision would still have gone against the clmt.

yes, i'm surprised the GP replied.
i certainly wouldn't argue that reg 86 confines enquiries to the claimant, and can readily envisage scenarios in which it is perfectly legitimate, even desirable for them to make enquiries of third parties in connection with benefit claims.

a person's confidential medical information is fundamentally of a different order however. there has been no mention of Article 6 in this discussion. i don't think it is realistic to expect benefit administrators to have in depth knowledge of the law, but a trained, almost instinctive sense of balance and awareness which properly reflects it is acheivable, and it bothers me a lot that embedding HRA is not an administrative priority.

There is no right of a third party to access information under the DPA. The Act is only concerned with subject access, i.e. an application by a person to have disclosed to him, his own personal data. A data controller can refuse to disclose personal data to the subject if it falls within one of the exemptions. Section 35 is an exemption from the exemptions and deals with the non-disclosure provisions (defined in section 27). Section 35 states that the non-disclosure provisions do not apply to a request for information (defined in that section) held about him by a subject requesting access.

This basically means that the extension of the common law being placed on a statutory footing. This was effectively done by the Human Rights Act under Article 6 (the right to a fair hearing). This entails the right to have the full case against him put to him. The DPA ensures that public authorities are unable to circumvent this by withholding from him information, which may be vital to his case.

Third party applications for information held about others are covered by other statutory provisions and where they are not so covered data controllers have no right to disclose that information without authorization and may be subject to legal action if they do so.

Without necessarily agreeing or disagreeing on the issue of s.35, one other possibility springs to mind. Perhaps the LA has relied on the declaration contained within the claim form(s); in conjunction with HBR 86?

oh dammit! i said art. 6 and meant art. 8! must have ben freudian...
my bad...
sorry guys!