Apologies for the rant in advance, what is wrong with these people!!!

Client successfully claimed ESA (medical 04/08/2009) but was refused DLA (17/08/2009) 0 for both components. Sent in Occupational assessment reports stating she is unable to mobilise past 20 metres and DWP requested and received directly info from GP. DBC have insisted on an EMP report despite our request to use the HCP report.

EMP came out 1st week of January but failed to issue report. DBC say they have requested it three times and it's still not forthcoming. DBC now insisting client undergo a further medical with an EMP before making further decision, they refuse to request HCP WCA report (we are now awaiting a copy of that).

Spoke with the section dealing today (DM refuses to call me, only client) and was told that basically it is tough and client will have to undergo a further medical before another decision is issued.

Have tried to argue further medical unnecessary due to HCP report and evidence provided and told DM's are specially trained and if they say they need an EMP report then they do. Tried to argue they should pursue EMP Doctor for report-told they have tried and the company he works for (Trillion?) have said the doctor will not produce report!

Does the client have to submit to further medical? Is it likely to go against her if she doesn't in view of HCP report being available?

This is currently a recon as we felt good chance of new decision due to evidence. Any opinions/help much appreciated!

As Trillion are a private company carrying out public functions they are amenable to judicial review, so you might want to threaten them wiith that (an enforcement order) to produce said report.

Thanks Nevip, I will! Any thoughts on potential consequences of refusing to undergo further medical?

Thet cannot force her to undergo another medical. You might want to ask TTS to issue a direction ordering them to obtain the WCA report and make a decision on that and all other evidence they hold. Difficult to predict outcome without sight of existing evidence.

Mmm, I'm loathe to advise on refusing because of not having sight of the evidence to date too. Sorrowful though that client should have to undergo indignity of 3rd medical in less 6 months, disgusting state of affairs.

Thanks for responses nevip, much appreciated.

I don't think the Tribunal Service has any jurisdiction until (a) there has been a decision and (b) that decision has been appealed. They can certainly give directions to speed up submissions and evidence for any resulting appeal but at the moment I'd have thought an MP would be more use.

Yes of course, we are only at the reconsideration stage! It's tempting not to encourage client to agree further medical and see what new decision is issued. Then if it's in the negative, appeal immediately and let the matter go to tribunal.

There really is no need for all this, she has quite rare panniculitis (hope that's spelled correctly!) and simple cannot walk past 20 metres! Previously worked for NHS and occupational report was from a doctor, GP very supportive and even passed ESA assessment, what more can a girl do!

Since first post, DWP have refused to provide details of company responsible for this assessment stating a complaint to Trillium/Trillion? should be sent via them...it all seems a little bit dodgy for my liking...like they had the report but lost it. Had similar issue earlier in Jan where ESA had mislaid medical services advice and had to send all evidence again.

It's really not good enough but am afraid TS may frown on any resual to undergo further medical if it gets that far.

And I thought I was the only one so work-obsessed that I'd still be looking through this site at this time of night, thanks for the response ariadne2!

Thu 18-Feb-10 10:54 AM by ros.white

i'm not surprised you're fuming...your client's unwillingness to undergo a further medical examination is entirely justified in the circumstances...how can she have any confidence in the process?... how can she even know that the person who examined her was a doctor....?

the DWP's 'tough ...., she'll have to have another one' approach is pretty deplorable, and they don't appear to have recognised the seriousness of your client's complaint. your client is entitled to have her rights respected, including her right to privacy. she has consented to a medical examination for the purpose of her DLA claim, but why should she agree to further intrusion, required because of maladministration by the DWP?

i think your complaint is with the DWP - they are responsible for contracted medical services, and i think they must provide you with a full and detailed explanation of the circumstances in which the contracted provider has failed to provide a report after examination, and what they are doing about it, and to answer any questions your client needs answering in order to address her legitimate concerns. She may also wish to consult her MP on the matter.

a tribunal may well question a refusal to undergo a further medical examination, but is capable of understanding the reasons for it if they are explained - imo there's no real danger of adverse inferences being drawn in these circumstances, or your client being penalised in some way for a refusal. there is also no legal requirement to submit to a medical examination for DLA, unlike IB...

D-M's do have quite a lot of latitude in deciding what evidence they require in order to give a decision, but they are not wholly unaccountable!! if you feel very strongly that the available evidence was sufficient to enable a properly trained decision-maker to give a decision without an EMP report, that is also part of the complaint. your client has an interest in tax-payers money not being wasted, as well as being treated fairly and with respect, and the DWP has duties and responsibilities in both regards.

if an adverse decision is given by the D-M and you believe it is perverse, in relation to the available evidence, that can also amount to maladministration, as well as error in law. this used to be the previous departmental guide to financial redress on maladministration, which i have just this minute discovered has been completely re-written and now says very little!

Complain.

This is appallng...

I write only to re-iterate advice already given.. USE THE MP!!! My experience is that DWP tend to jump when a Caseworker for an MP calls...

Keep us posted.

And your MP wants to do everythings/he can at the moment to brush up her/his standing in the constituency, what with an election pending...