My collegue was at a tribunal yesterday & was advised by the tribunal judge that there had been a recent decision that - where a EMP report was undertaken by an RSM, etc. for ICB purposes (rather than ESA), rather than a GP that the report should be ignored for the PCA (as the EMP would therefore not be a qualified person for PCA purposes).

Does anyone know of this decision & could let us have a copy

Fax : (01642) 612666

Mike Robinson
Stockton CAB

Sounds too good to be true!! But if it is true i'd love to know what decision it is too.

Nicky

We have used the argument that a superession under Regulation 6(2)(g) of the Social Secuirty (Decisions and Appeals) Regulations prior to 30th October 2008 is not valid where the incapacity medical was carried out by any other healthcare professional other than a doctor. That is because the wording was, at that time, that the decision to be superseded is -

..an incapacity benefit decision where there has been an incapacity determination ...... where, since the decision was made, the Secretary of State has received medical evidence following an examination in accordance with regulation 8 of the Social Security (Incapacity for Work)(General) Regulations 1995 from a doctor referred to in paragraph (1) of that regulation

The word "doctor" was replaced by "health care professional" from 30th October 2008, so the argument only applies to decisions made prior to that date.

Three cases so far. First one adjourned at hearing because medical member works at client's GP practice, but full time judge said he thought the argument looked right. Second case adjourned for same problem, third case heard on Wednesday and the appeal was allowed on those grounds (i.e. no grounds for superession).

Brian (i.e not the Senior Adviser)

I can see the logic in that, thanks

Mike

Didn't Commissioners Jacobs or Williams issue one last year also to afeect that a tribunal had to wary if the practioners specialist background isnt identified. i.e. a physio may be PK for physical test but not a mental health issue , and so on.

on this topic, we have now had confirmation in a UT decision from UTJ Mesher that reg 6(2)(g) cannot be used as a ground for supersession prior to 24/10/08 where the health care professional undertaking the decision was not a doctor. It approves CIB/2230/09 (which had totally passed me by).

Judge Mesher also noted the importance of tribunals acknowledging "the correct professional status of the person who has produced the report" and that not doing so could be a factor in deciding that the tribunal had not properly weighed conflicting evidence.

The decision is now on rightsnet at
http://www.rightsnet.org.uk/pdfs/CIB_2215_2009.pdf

and try this

http://www.osscsc.gov.uk/Aspx/view.aspx?id=2865

CIB 2230 2009

also on bailii

http://www.bailii.org/uk/cases/UKUT/AAC/2010/72.html

there's also a summary of 2230 in briefcase @

Supersession on gounds of nurses report / other grounds for supersession

I have just picked up an ESA appeal. Client was awarded nil points despite having a life threatening condition...the usual poor quality nonsense from Atos.

I took the trouble to check the General Medical Council's website (www.gmc-uk.org) and discovered that the doctor who carried out the exam was registered, but was not licensed to practise as a doctor (I never knew there was a difference).

Reg 2 ESA Regs defines HCP as including "a registered medical practitioner", so the Dr's registration complies with the legislation, but in my view the lack of a license to practise may help when raising questions about the weight to be given to their findings and the quality of any examination. For example, if they are not licensed to practise, they are not allowed to assess people's fitness to do certain jobs such as being a police officer.

I'd never bothered to check a Dr's registration status before, but others may find this helpful. You can also discover any restrictions on their right to practise medicine if they are licensed.

Just tried that link, very useful indeed.
Have a doctor who was given a warning for an inadequate ICB assessment

“he examined a patient in connection with a claim for Incapacity Benefit. His examination was inadequate and the findings in his report were not clinically justified. This behaviour does not meet with the standards required of a doctor. It risks bringing the profession into disrepute and it must not be repeated. The required standards are set out in Good Medical Practice and associated guidance. In this case, paragraph 2(a) of Good Medical Practice is particularly relevant: ‘Good clinical care must include adequately assessing the patient’s conditions, taking account of the history (including the symptoms, and psychological and social factors), the patient’s views, and where necessary examining the patient’. Whilst these failings in themselves are not so serious as to require any restriction on his registration, it is necessary in response to issue this formal warning.”

However, unless then GMC number is listed on the IB85 or ESA85 -cannot be certain if it is the same doctor, or one with just the same name.
Therefore could not use this info in any tribunal or could you!