Dealing with a client who has an on going IB appeal, just received the submission. Client previously scored 16 points on mental health. Underwent a further medical exam and scored 1 point. Decision superceded and no longer entitled. However there is no IB50 questionaire on the papers in relation to the most recent exam/decision and I don't think that there ever was one, the decision states "...in the abscence of a completed IB50 I have no reason to dispute the doctor's choice of descriptors..." Client has some reading/writing difficulty and it is not clear whether or not he was sent an IB50 to complete although there is a completed IB50 on the papers in relation to his previous assessment.

Can I use this in anyway to support the claimants appeal or can the tribunal overlook this go on to make their own findings?

I should alos mention that I have been looking at Reg 6 and 7 of the SS (Incap for work) (General) regs but I am uncertain as to the apparent discretionary nature of the questionaire.

It seems to me to run something like this:

The SoS MAY send a questionaire
The SoS can make a decision without a questionare if there is already sufficient information
If a questionaire is sent out but not returned within the time limit (subject to a reminder being sent out) the claimant can be deemed capable
When the questionaire is returned the SoS can insist on a med exam

But the question is, can the SoS simply ignore the first part altogether, bypass the requirements for reminders and the provisions for finding someone capable for non return of the questionaire and go straight to the medical. If he can't, does that make the supersession decision ultra vires?

I think you need to ask the JC+ Incapacity Medical section for a full records of events regarding the PCA process this time.
If customers have mental helath problems and no physical problems, they will not normally disallow for non return of the IB50, they send the file straight for medical examination. Hope this helps.

Thanks dbcwru, I think what you are saying is that non return of the questionaire need not lead to a finding of capability if claimant can show good cause e.g. nature of disability as per reg 9(c)so more information would undoubetdly be helpful but surely a decision maker would have to decide that the claimant did have good cause, and if so, wouldn't it have been a requirement to include that decision in the submission?

I have found a couple of other threads on this point but I don't think the issue was ever fully resolved.

No the DM would not have to make a good cause decision, it is part of the procedure if IB50 not returned in a solely mental health case, though they would normally request an IB113 if there wasn't one already held from a fairly recent PCA.

I dont understand how it can be "part of the procedure". Reg 7 looks like a mandatory requirement to me..and it cant be a procedural step to declare that a claimant did not have good cause. The only way round this would be if the IB113 indicated that the person was exempt from the PCA but that is a different issue isnt it?

3rd instalment!

Reg 8 deals with the SoS power to insist on a medical. Reg 8 does not say that there are any conditions on this (i.e. a questionaire haveing previously been completed). It only says "where it falls to be determined whether a person is capable of work...". So my reading is that the SoS could go straight to Reg 8 or have I got this wrong?

I think Reg 8 allows the SoS simply to direct the claimant attends a medical regardless of whether he has previously asked claimant to provide information (ie an IB50).

Thanks Martin, I'm inclined to agree but it seems odd if that is the case as it makes reg 7 look redundant.

I have an appeal on the go where just this point may come up.

Unless there have been developments in case law, my point would be that allowing the SoS to ignore the need for an IB50 makes reg. 6 hard to follow. In the first place, it speaks of information or evidence "required"— a strong word. In the second place, subpara. (2) provides an escape-clause where the questionnaire is not " required". But if there is no obligation to issue an IB50 anyway, what is the point of relaxing the requirement?

I have come across a number of cases where there was no IB50 which have got as far as appeal. I think in every single one of them the diagnosis was mental health. I suppose it is possible that in the past the claimant had failed to respond to an IB50 and the Dept may have taken the view there was no point in sending one this time? Or they may have waived the point on good cause if one was sent and not returned in view of the high probability that if they disqualified him for not having good cause any appeal where there are mental health grounds is probably going to succeed. Not that I can recall seeing much in the way of appeals on this point...

The appeal mentioned above has now been decided in the claimant's favour without any discussion of the descriptors.

The written decision has still to be sent out, but the tribunal seemed to accept our submission that reg. 6 (1) imposes an obligation on the SoS to issue the questionnaire unless the escape-clause in 6 (2) is satisfied. In this case, there was nothing in the papers to suggest that the SoS thought that 6 (2) was satisfied.