I was wondering whether any other Rightsnet users are encountering the computerised IB85 reports that approved doctors are now producing in respect of the PCA medical? If so I was wondering if anyone has any thoughts on, or has indeed challenged, these reports on the grounds that they are no longer signed by the doctor and are therefore not legal documents (in the way that the previous handwritten reports were) as they have not been authenticated by their author?

I don't know if I'm barking up the wrong tree but it seems to me without authentication no one can be sure that the doctor actually produced the report or reached the conclusions contained in it!

I have tried to challenge these computerised reports on the basis they are not signed, but without success unfortunately. The DWP provided the tribunal with advice from their legal advisers which says:

"The arrangements made by Medical Services to create a logical association between an electronic report and the dosctor's log in credentials meets the requirements of Section 7 of the Electronic Communications Act 2000. In other words sufficient safeguard is in place that any given report can be securely associated with the individual doctor, through the use of a unique identifier (the doctor's GMC registration number). Three is no issue in respect of the evidential burden in either criminal or civil courts".

(This is a quote from a letter sent from the Jobcentre+ to TAS in 4/04.)

I have not had the chance to actually look at the Comunications Act to see if their interpretation is correct.

Would be interested to hear if anyone else has had more success?

I wonder what the lack of a signature actually means. The obvious answer is that to save paper and transport costs the computer file is sent to Medical Services who print it off and send it to the DWP. In other words the doctor never even sees a printed report.

Ours are signed, by the way, and speaking to our local PCA section they confirmed they receive them in paper form.

Greg we have an argument. No success at tribunals as yet but we have a few on the road to the Commissioner!
We argue as follows:

1)The typed doctors name is not an electronic signature and so the Electronic Communications Act does not provide legal authority for its use. Such a thing rather comprises of electronic data, which enables something other which is tangible or physical to be identified. An example would be an internet protocol address which, in itself, is nothing more than a sequence of numbers but is associated with a particular computer and allows for it's identification. There is nothing essentially 'electronic' about the typed doctors name - it could have been produced by a manual typewriter.

2)Alternatively an electronic signature is a photocopy or scan of an actual signature which is then incorporated into another document (ie a standard letter,a cheque,etc). However this would arguably fall outside the scope of the Electronic Communications Act and in any case is something totally different from what is found at the end of the report.

3)Even if the above arguments are rejected and the type is still considered to be an electronic signature, it is still, in terms of the ECA, inadmissible as evidence because Section 7 (1) (b) of the Act requires that the signature is certified. Section 7 (3)(a)(b)and(c) specify that certification means a statement confirming the signature(a), a means of producing,communicating or verifying the signature(b) or, a procedure applied to the signature.

4)Consequently the medical report on which the supercession is based is not verifiably attributable to any individual. It follows that there are no grounds for supercession and the decision removing IB is invalid.

I wonder how many claims would be accepted with the claimants name typed in the box where the signature should go. Now a really radical WRO might wish to submit such a claim. It probably wouldn't even matter that he or she did not meet the entitlement conditions for the benefit claimed because it would be disallowed as a defective claim. Could be a chance to produce some 'antidote' caselaw and an interesting jape!
Good luck
Mick

Sounds like a great argument to me Mick. Please let us know the outcome.

Regards
Paul

Mick
Thanks very much for your detailled response which has given me food for thought. I now feel in a position to put an arguement forward at tribunal along the lines that you have detailled in your response. I'm unsure how tribunal chairs in Liverpool would respond to such an arguement (I have my suspicions that it may not be very favourably!) however I feel empowered to attempt to develop the 'antidote' caselaw you mention and I'm always up for an interesting jape!

I was wondering if you have actually made a submission to tribunal using these arguements and if so whether you could supply me with a copy. I realise this request is a bit cheeky but there's little point in me reinventing the wheel!
Thanks again

Greg

Greg, we tend not to do written submissions as they can box you in at tribunal, take time to do and also the chairs on our circuit are familier with most of our 'technical' arguments. That said what I posted is more the less the same as a written submission sent in response to the DWP's submission which was produced as a result of adjournment directions when we first ran the argument. So all you need to do is to copy and paste into a word document which you can then amend as necessary. I'm pleased you found it helpful - let me know how you get on.

Mick

Have read all of the above with interest as we too have been seeing these new reports and some of the stuff in them is, to use a Glasgow expression, mince.

For example: a client who "Always never plays tennis" and another client who on one page had had two hysterectomies and was awaiting her third , and on another page had never had a hysterectomy.

Maybe they were always this bad but we just couldn't read them?!

I think you're right.

Local PCA section have lamented the passing of handwritten PCAs because no longer does one doctor write "Wakes at 9AM and dresses up" on each report.

I am challenging the new medical reports using a different tack;
1. They are impersonal.
2. They appear to use a standard format with the opinions given by the medical examiner.
3. It is impossible to make a balanced decision using the information they provide to a decision maker.
4. They cannot be used as a proper personal capability assessment due to the above points raised.
5. Therefore the decisionmaker has no grounds to review a decision that a person is incapable of work.

Any views, comments?

no. 3 is the cruncher. in other words, the computer program is weighted towards failure of the PCA.

good evidence would be consistently high discrepancies between old and new type PCA outcomes on the same claimant. (we have one at the moment).

does anyone know if any monitoring figures are being kept?

jj

Things must move more slowly in Salford but I have had my first couple of these things this week. They are very wacky.

The mental health section seems to be a bizarre collection of unrelated statements. In answer to the first question on the use of a telephone it says "Has no significant problems with shopping. Cooks safely and eats well. Always likes to do housework for 3 hours. Uses phone regularly to keep in touch with freinds." Well I suppose if you just keep saying some random statements you get one that is close to being relevant eventually. It carries on like this throughout.

Further on it says "A placid person, never disruptive" then "Has developed a short fuse since becoming ill."

Has anyone had any luck in challenging the validity of these reports? Does anyone know how they work: does an EMP have pick lists for his explanation? Does anyone know what computers in the DWP/ Inland Revenue always seem to make things worse?

We were having a presentation from Medical Services on this very subject.

Med Services in Manchester seemed quite keen to do the presentation on the computerised reports.

Why not give em a ring?

Just out of interest Mick, have you had any success with your arguments before the Commissioner?

Not as yet Andy. We have been doing quite well on IB lately and I suspect that this is partly due to the 'lever' applied through technical arguments such as those based on 'Howker' and the computerised PCA's. We have had one or two refusals of leave from Commissioners and, strangely enough, one fell into the hands of a Chairman who only this morning said that he was relying on it as a persuasive authority to reject my arguments! Quite shocking stuff but I said if he wanted to do so fine as long as he recorded his reasoning. He then went on to allow the appeal which I would say was a 50/50 case at best on the facts.
If Commissioners keep refusing leave the Howker argument we will be looking to take the first suitable case to judicial review and this will encompass the computerised PCA arguments as they almost invariably run together. I'll post any developments as soon as they happen.

re the howker angle .... have you seen CSIB/598/2004 in which cmmr parker rejected the 'all PCA's are invalid' argument? This may be why applications for leave to appeal are now being refused?

Had 2 recent cases before a Tribunal on the same day. The Sec of States rep turned up and produced a load of gibberish from Atos Origin about how wonderful the new computerised medical reports were. This information came from Quarry House in Leeds. I havn't had a chance to read them properly yet but on the face of it they seem to be pretty flawed because references are made to standard answers and lists of options for the doctors to choose. As you may be aware medical conditions effect everyone differently so there can be no standard approach. Anyway the appeals were adjourned for further submissions to be made (even the Sec of States rep had not read the information.)

It would be very interesting indeed to see a copy of the Atos Origin submission. Are they getting a bit rattled do you think, having spent millions on producing their computerised system? Your poor clients though: not only have they got the DWP trying to trash their claim, but now a multi-million pound private sector company is trying to have a say as well.

They're definately rattled. I recently saw an Atos Origin report for a post office employee, (Dr's typed signature), but that had an authoratitive paragraph attached as per ECA 2000. The report said he had almost no mobility, difficulty getting out of a chair, difficulty bending and carrying so he got medically retired as a postman. DWP medical by Atos Origin gave nil points. Very strange. Anyway told the local DWP office and they fell about laughing. Have sent in the Post Office medical report and asked them to reconsider their decision.

Has anyone tried to obtain a copy of the LIMA software/any other guidance used by medical doctors carrying out computerised PCA's using the Freedom of Information Act?

I have got a request in for a copy of the LIMA software, though I suspect it will fail on technical grounds relating to software, operating systems and the non-existence of a standalone programme. I also have an alternative request in for the protocols on which the software is based, about which I'm rather more hopeful.

It's worth bearing in mind, though, that copyright rules apply to information provided under FoI - you can't just publish anything you're sent without prior permission. Which means that either someone has to be able to find the time to precis information provided or everyone who wants a copy of something has to make their own individual request in the hope that the DWP will eventually decide it's cheaper to publish whatever it is on their website than keep responding to separate requests.

Did Atos Origin think up thi idea of producing computerised reports or did the DWP request them. How can we find out if any consultation took place and who with, before they were introduced.
By the way not been able to challenge them at the commissioners yet because I havn't lost a case. The Tribunals view has been that they will look at everything that is put before them and give weight to whatever is appropriate. I've used the ECA argument each time and I don't know if they give the DWP Dr's report short thrift. I won't ask for a statement if I've won for obviuos reasons.

I've noticed something else regarding these computerised reports. They regularly use standard paragraphs.
A report I read the other day used the same paragraph 4 times on different pages. It was saying that the client had refused to be examined, amongst other things. What actually happened was the client fell ill during the medical and had to leave the examining room. We asked for the selection of choices the Doctors have to pick from, but did not get a reply before the Tribunal hearing. I can only assume that there isn't a box to tick on their computer to cover that scenario and the Doctor chose the closest option.

funnily enough, in the course of a hearing this morning, i was informed by the tribunal that examining doctors can override the screens - they don't just have to follow a menu.

i was arguing (in a written submission) that the tribunal should consider, in its weighing of the evidence, that the computer-assisted report writing process itself had influenced the outcome of the assessment.

in this case, i was fortunate in being able to contrast 2 EMP reports separated by only 18 months, with 22 points awarded on the earlier handwritten report and nil on the computerised report.

i suggested that the difference in the reporting process itself accounted for the difference between the two reports, via an influence on language and use of judgement affecting the assessment.

i identified 3 areas, using examples from the reports, to submit that

1.the computer organisation of data (ie under headings and categories) unduly influences the assessment;

2.the omission of expressions of restricted ability has a distorting affect on the assessment;

3. linear computer processes mitigate against the exercise of subtle human judgements, which can assess the combined effects of conditions, and form an invaluable part of the assessment.

for example - the two doctors broadly agreed on the client's ability to bend forwards, but expressed it very differently - the first doctor stating 'bending forwards restricted to fingertips 6" below knees' - the computerised doctor reporting "can bend forward to reach shin". The latter entry appears under a heading "Normal Clinical Findings", and under the adjacent heading "Abnormal Clinical Findings", it is a blank. As statements of fact, the two different forms of expression amount to the same thing, but in terms of assessment, ie judgement, the language used carries values... The PCA is still a test of impaired function, after all...

the oral hearing concentrated on obtaining evidence from the client, and we got 17 points. i'm not sure how unimpressed or what the tribunal were with my fledgling argument which needs a lot more development... i think it may help in persuading the tribunal to prefer other evidence in conflicting med. ev cases like this, but it will be a lot harder when it is the only report...
any ideas going...?

jan

I don't know what the tribunals are making of these computerised reports. The DWP's arguments in support of them are certainly very weak. As soon as you mention the Electronic Communications Act the tribunal members go pale and seem unsure of what to do. I have not lost a case since I started using that argument. However each victory has been won on points scored on the PCA and not that the DM had no grounds to super cede. (Is that one word or two?).
I certainly think that the range of choices the medical examiner has to pick from should be made available. I know that they have an option of overriding the screen, but I've not seen it used yet. I think there is no a stronger than ever case of making the examiner attend the Tribunal to explain why they have given a particular opinion. I certainly would like to have the opportunity of cross examining them. (fat chance).
I need to lose an appeal so I can appeal to the Commissioners.

it seems like whatever argument is made against the reports, the tribunals just deal with it by making their own award of points. the
whateverrr' response? the repetitions of summaries within sections of the report is something which just wouldn't happen in a report produced by a human - they would be too embarrassed to sign it!! why should lower standards be acceptable because 'a computer done it', especially when even if the report is undermined, it's not easy to completely discard the damaging content.

i agree we should know what options are available to doctors - a computer program has the potential to influence, even control language use, and this is seriously bad news. and if the entries are made in terms of what the client _can_ do, when the test is one of impaired ability, the computer-assisted assessment process is deeply flawed.

jan

I have seen this from a Trade and Industry Committee report 0f 01/03/05.
the questions asked are to Atos Origin representatives, in connection with them performing medical examinations for the DTI in relation to vibration white finger and C.O.P.D.

All comments within "" were made by Atos Origin representatives.

I was wondering if the same was true for their contract with the DWP.

Should client group representatives been informed and been able to discuus about the electronic reports for Incapacity medicals.


"On projects such as Electronic Form, we have recently introduced an electronic report form to try and improve quality and make the reports more legible. To develop that we had meetings with members of the CG (solicitors working on behalf of clients) on their own to identify issues they had with it so we were fully informed about their concerns".

Is this Atos informing us that their reports are standardised, to suit not the person being examined but by other criterea.

"There is always a danger with experts that they can all have independent opinions. What we are trying to do in the scheme is to say, "The actual process has already been defined by another panel of experts and really you have got to adhere to those rules if you are doing this assessment".

Do they have this agreement with the DWP.

"We are contractually obliged to produce a quarterly report which covers our performance against all of the contractual targets, both in terms of turnaround time and quality. That is made available to all parties and, in fact, is discussed at a joint meeting with the DTI, the Claimants' Solicitors Group and other parties. We feel there is very much visibility of our performance against our contracted targets."

Q77 Judy Mallaber: So the claimants' representatives can obtain exactly the same level of information as the DTI?

Ms Gibson: "Yes"

Q78 Judy Mallaber: Do they know what information you provide to the DTI so they know what information to ask you for?

Ms Gibson: "I would say I believe so, but I would be guessing."

I love them ICB appeals are so much easier than before , the old handwritten ones could be made so personal about the clients they were almost believeable . The new ones are so error strewn and full of contradiction, and lack most of the details, too support it's findings.

Must agree with you northwiltshire. These reports are absolutely beautiful to pull to pieces arn't they!

See previous discussions 'cos theres a lot said! Also some relevant submissions available to download.

Still havn't lost a case since the introduction of the new computerised reports. I always use the ECA 2000 argument.
At an appeal the other morning I specifically asked a full time chair to make a decision on the legality of the computerised report before continuing the appeal. (I'm trying to be pushy). Anyway she said that in her view they were admissible and the DM could use it as evidence to supercede the incapacity for work decision. I told her , that in my opinion she was on very sticky ground and I would be very interested to see her reasoning in the Statement of Reasons. Anyway the Appeal then proceeded with the normal PCA questions, and surprise surprise, 15 points were awarded.
Had another Tribunal the same afternoon, same Chair, same doctor, same arguments, same decision.

I wonder if The Appeals Service have got any stats on IB successes since the introduction of these computerised reports.

Top man Stephen - it really does legitimate the use of technical arguments. I hope the doubters take both notice and inspiration from your post.

Mick

There may be some mileage in the CD CDLA/4127/2003 the EMP altered a DLA report and didn,t sign it. Commissioner Williams goes into a lot discussion on being objective and equality of arms etc. But importantly states'the failure to sign the alterations on the report call into question it's evidential value. Maybe a strong arguement can be put forwarded concerning the new IB85

Had one of these today with a rather tentative 'substantive' argument (well, not bad actually, good GP report but just 2 points MH awarded and you know it's always going to be a mountain to climb). So I put in an additional ECA + CDLA/4127/2003 submission the other week. Many thanks to all contributors to this thread for putting me on to them as arguments.

Chair adjourned for DWP to answer ECA arguments, but also, rather than looking at this _last_, after looking at substantive case first which I had suggested, said it ought to be looked at _first_. And then, if Atos report is invalid, my commissioned GP report did not ask about the 2 points already awarded. "You can't have your cake and eat it." I have now written to GP on those points.

It all rather tickles me. As an alleged 'doubter' of technical arguments (which I would refute anyway - I know which side I was on in Mike Shermer's fascinating 'common sense' thread (I think it was you who started that Mike apologies if someone else)) what am I doing floating a boat like this? I must admit I don't like anything that gets in the way of a very good substantive argument, and I do not like adjournments in any case. AND the GP is gonna charge another great whack for another report.

But I get the feeling this chair was rather pro the idea, whilst being unhappy with being placed (as it seems to me he saw it) in the shoes of the original DM. I'd simply argued 'no grounds for supersession so original decision must stand and client still treated as incapable as no PCA has been carried out', but he was taking what appeared to be a post that decision about supersession point of view that the tribunal could do its own supersession and PCA on the evidence (other than the Atos report) in front of it.

Which is a better way to go really (if you've got the evidence, and I argued that as an expert tribunal they could go ahead and find whatever evidence they wanted to on the other descriptors, an argument lost in the mix somewhat) rather than just bounce the poor client back into another PCA immediately, which would be the upshot of no supersession at all.

I wonder how this will run? My client was rather non-plussed about the whole thing - 'They'll just send the report back to the doctor to sign won't they?' - a very refreshing attitude. But he was okay to wait rather than lose it as an argument (which was what the chairman said we'd have to do if we'd proceeded without a DWP opinion, given that sub was made 10 days before hearing).

Had 2 more of these appeals this morning. Same thing has happened again and won them both.

Excuse me if I am coming too late into this discussion but have you all seen Commissioner Williams' new decision CIS/476/2005? It's a good un. Doesn't deal with the signature argument but makes some very pertinent criticisms of the whole electronic process. And it's available on the OCCS website.

OSSCSC website states that the decision mentioned above does not exist.

Do you have a copy that you could fax to me?

Nicky

Yes. I can fax or send in the post, Nicky. Tell me which you'd like and give me the address and I'll get a copy to you today.

Thanks very much!

Fax number is 01229 830379

Thanks again

Nicky

It's IB not IS - thanks very much for putting it up here.

Of course! It is IB, isn't it? Sorry, eberyone.

Yes of course!!

Got it now - glad someone's awake!

You're right Connolley it is a good un!

I am very relieved you found it. Our fax machine refused to pass it on!

Received some of it!

Thanks anyway

Nicky

In addition to CIB 476 2005
CIB 0511/05 discusses danger of discrepancies introduced by system generating statements mechanically without necessarily representing actual wording chosen and typed in by the examining doctor

CIB 3984 2004 discusses issue of electronic signature
Electronic communications or data

9. The interesting issue raised by the claimant is the point put to the tribunal that the BAMS electronically generated medical report should not be accepted because it was not signed. Reference was made to the decision by Mr Commissioner Walker in 67/95*. The Report is clearly a computer generated Form IB65, which has a footer “Report on completed by Dr <…> on 6 May 2004. Ref: 620109. Page x of 20”. The footer appears on every page. The Declaration on the last page has in type “Doctor’s Name Dr <…>”.

10. The Secretary of State refers to this as an electronic medical report and that is why it does not have a signature. It was submitted:

“The arrangements made by the Medical Services to create a logical association between an electronic report and the doctor’s log-in credentials meets the requirements of Section 7 of the Electronic Communications Act 2000. In other words sufficient safeguard is in place that any given report can be securely associated with the individual doctor, through the use of a unique identifier (the doctor’s GMS registration number) … There is no issue in respect of the evidential burden in either criminal or civil cases.”

The tribunal has erred in law in not dealing with this submission in their decision and that is also a ground for upholding the appeal.

11. The point raised is an important point. I will give my decision on this issue. The Secretary of State relies on section 7 of the Electronic Communications Act 2000, which provides:

“7(1) In any legal proceedings-
(a) an electronic signature incorporated into or logically associated with a particular electronic communication or particular electronic date, and
(b) the certification by any person of such a signature shall each be admissible in evidence in relation to any question as to the authenticity of the communication or data or as to the integrity of the communication or data.”

I take from section 7(1) that in legal proceedings that an electronic signature may be proved by the certification by a person of such a signature. This is admissible in any question as to the authenticity of the communication.

Section 7(2) defines electronic signature as:

“… so much of anything in electronic form as (a) is incorporated into or otherwise logically associated with any electronic communication or data; and (b) purports to be so incorporated or associated for the purposes of being used in establishing the authenticity of the communication or data, or both”.

There is nothing in the document to indicate what might be the “electronic signature” or the so called “unique identifier” unless it is the reference.

Section 7(3) goes on to define for the purposes of this section that “certification” is achieved by a statement made by a person confirming that (a) the signature, (b) a means of producing, communicating or verifying the signature, or (c) a procedure applied to the signature is a valid means of establishing the authenticity of the communication.

12. In the present case, the claimant challenged the authenticity of the doctor’s medical report, which appears to have been an electronic communication from the doctor. As the authenticity of communication was challenge it was incumbent on the Secretary of State to prove that it was authentic by way of the procedures set out in section 7. This was not done in the present case and accordingly, the tribunal ought to have held that the electronically produced, doctor’s report was not admissible in evidence.

13. It might be open to the Secretary of State to make an order by Statutory Instrument under section 8 of the 2000 Act to authorise the use of electronic medical reports in proceedings before the appeal tribunals or before the Commissioners. I am not told that this has been done.

14. I have dealt with this under the Electronic Communication Act 2000, because the Secretary of State relies on this Act. This suggests that the Report was originally an electronic communication or electronic data.

15. I was not clear how the Report was created or passed to the department. I directed that the Secretary of State should explain how the medical Report system and Report worked; to explain how it came under the Electronic Communications Act 2000 and how the tribunal could be satisfied as the authenticity and integrity of the communication. A copy of the Response to my Direction is annexed hereto and explains how the system works.

16. It should also be noted that as the Report was originally in electronic form on the computer, that a further print out from the computer is treated as a further original and not a copy of the first printout; DPP v Hutchings <1991> RTR 380.

17. In Scotland, under the Civil Evidence (Scotland) Act 1988 a copy document has to be certified as a true copy of the original by the person making the copy; section 6. This means that it is only the person who is in a position to copy from the original, who can certify the copy. A person copying the copy cannot certify that the copy is a copy of the original.. The document may be certified as part of the records of an undertaking if it is so certified by an officer of the undertaking; section 5. When so certified it is admissible in evidence in any civil proceedings “unless the court otherwise directs.”

18. Similar provisions apply in England. Section 8 of the Civil Evidence Act 1995 states that where a statement contained in a document is admissible as evidence in civil proceedings it may be proved “(b) whether or not that document is still in existence, by production of a copy of that document … authenticated in such manner as the court may approve”.

19. I am not to be taken as saying that certification is required every time, because I assume that most claimants will accept the printout or copy of the printout as sufficient – CSIS/69/1993 at paragraph 19. However, if the document is challenged then it will required to be certified in a way that makes it into competent evidence.

20. As the Electronic Medical Report was challenged in the present case, it can only be competent evidence if it was properly certified under section 7(1) of the 2000 Act. It seems clear to me that it was not so certified. Further a photocopy was produced, of what I assume was an original printout from the department’s computer. The photocopy was only acceptable evidence if “authenticated in such manner as the court may approve”. If the Secretary of State wants this report to be considered by the tribunal rehearing the appeal, it will have to be certified in accordance with the 2000 Act and the photocopy will have to be authenticated, unless the claimant agrees to accept the photocopy.

21. Reliability is a separate issue. The Secretary of State has explained how the report is prepared. If the claimant wants to challenge the reliability of the report as generated by the system then this is something that will have to be done before the tribunal. The reliability or credibility of competent evidence is a matter for the tribunal. I am not to be taken as saying that the electronically generated report is necessarily unreliable, because the system appears to be reasonably robust, but at the end of the day that will be a matter for the tribunal.

There might be another explanation but it seems that doctors have stopped using the electronic IB85s round here. Last few cases we've had have been on the old hand writen paper form. I suppose its possible that there may be 1 or 2 technophobic EMOs out there and its only 2 or 3 cases so far but has anyone else seen this?

I've seen a couple of handwritten ones spread out since electronic ones started. One by a doctor who doesn't normally do PCAs (or, at least, I don't normally see their results so it may just be a nice doctor) and one from a doctor who does normally do electronic ones. I think gltiches and/or coincidence is more likely than common sense prevailing (although who's really going to put their hands up and say the handwritten ones were great?!)

Finally had a response to a freedom of information request for a copy of the LIMA software. As expected it's a refusal on the grounds that "the software only functions as an interactive process and is designed to run on networked server based PCs not standalone PCs".

I might try to challenge this, though I haven't a clue how yet and would be very pleased to receive suggestions.

But another possible approach is to ask for bits of the software. For example, there may be text or other files that set out the questions and possible responses for each section of the PCA. But I know nothing about software applications. Anyone any ideas who I might ask to help me frame the questions in a technically literate way?

Steve

There's allegedly an appendix to CIB 3984/05 (I think it's that one) which explains the relationship of DWP/ATOS/EMP software.

Is it worth asking for Service Level Agreements / contracts / specifications for what the software has to do? That should surely be on paper somewhere.

(Sorry Steve I'm not meaning to make work for you but you did ask for suggestions)

new cd - CIB/511/2005 - in which cmmr howell says that apparent discrepancies and inconsistencies in the computerised medical examination report should have been dealt with by the tribunal, and that tribunals who fail to identify and deal with apparent discrepancies run a risk that their own consideration of the case may be criticised as insufficient.

summary in briefcase @

http://www.rightsnet.org.uk/cgi-bin/sub_client/search.cgi?template1=briefcase/detail.htm&briefcase.ID_option=1&briefcase.ID=62015423295

Andrew, couldn't find CIB 3984 05 on Comms website and from the number it looks a little ahead of itself ie we are just up to ...511/2005 being released at present.

Is it possible you could check the case number?

3984 04 sorry Andy I think it was that one the appendix isn't on the website.

CIB 3984 2004 is available here

summary in briefcase shortly.......

as promised, there's now a summary of CIB/3984/2004 in briefcase @

http://www.rightsnet.org.uk/cgi-bin/sub_client/search.cgi?template1=briefcase/detail.htm&briefcase.ID_option=1&briefcase.ID=621111021441

I think we have all got used to challenging these reports (IB85's) due to the inadequacies, inconsistancies and possible ligitimacies, with Tribunal's getting used to the fact that they are unable to give them great weight and in most cases revising decisions made by the Decision Maker.

What really worries me now is that the Disability and Carers Service Decision Makers are now using these reports as medical evidence for determining DLA claims. This means we will all have to go through the same rigmarole at DLA Appeals, with uneccessary adjournments for EMP reports because the Tribunal's know the IB85 evidence is unreliable.

Still waiting to lose an appeal so I can appeal to the Commissioners. There is a number of issues That need to be determined.

1. Who gave the authority to change the format of the IB85 from hand written to computerised. Did that change need the consent of Parliament.

2. Does the signature by the doctor at the end of the IB85 comply with conditions set out in the Electronic Communications Act 2000.

3. Why are appellants, reps and Tribunals kept in the dark by not being shown the chioces the Examining Doctors have when selecting the descriptors that may or may not apply.

4. Why is it not disclosed when the override button has been used.

5. Why don't DM's refer the reports back when there are obvious errors. i.e. The report took 22 mins to complete and the Doctor states "sat for 30 mins during the examination".

Apparently the annex to this decision will not be put online because it cannot be anonymised.

Here's a bit of a puzzle that I am trying to solve. Any thoughts appreciated.

Saw a client today for an ICB appeal. Client brings in copy of IB85. Client says that she had a bit of trouble understanding the doctor, so therefore she may have given unintended answers to his questions.

When I looked at the doctor's name at the bottom of the page the name did not appear consistent with the doctor's ethnic origin (although it could have been).

I advised the client to contact medical services and confirm the doctor's identity. On doing so my client was told that no doctor from the ethnic origin of the doctor my client said she saw was on duty that day, that the 7 number reference number on the bottom of the IB85 found no matches in their system and that the doctor's name on the IB85 matched a completely different 7 number reference number.

Any further info' the IT system in use would be appreciated.

Paul

...which seems to blow a small hole in the DWP release in 4/04 (quoted by Sara Lewis in the first reply to this post), or at least in your case Paul.

As I said near the beginning, the lack of a signature implies to me that the doctor has not actually read the report they are allegedly signing. If it was printed off and Dr Smith saw Dr Jones's name at the bottom she would be scandalised and not sign it.

And that's an obvious thing. My concern is the subtle things, the clicking on option a because it seemed closest and that led to the whole report looking like there's no problem at all things.

The Presenting Officer has brought to my attention, the decision of Commssioner Bano in CIB/3743/2004 decided on 10 June 2005. It is on the Commissioners' Website.

On the face of it, this limits a challenge of the unsigned computerised PCA report to questioning it's accuracy or credibility rather than its admissability.

Has anyone got any further thoughts?

Thanks

Audrey Ludwig

It just goes to show that a purely theoretical ground of any appeal ('the Police Officer told me his number was 649, but it now appears to have been 650 all along, so his evidence cannot stand') is always an iffy approach in a vacuum.

As it is you have conflicting decisions, of equal weight, awaiting an appeal or a tribunal of Commissioners to decide them one way or the other. I stated near the top of this discussion that I was interested to know what the lack of a signature really meant. The appendix to CIB/3984/04 finally confirms my initial fears - the IB85 is printed off at the medical centre (not the examining centre), so the doctor never sees it in printed form.

Notwithstanding the admissibility of such evidence, what the other decisions on the integrity of these reports allude to, in that errors and ommissions can not only be more easily present but can be magnified very easily, is made far worse by the fact that the doctor never sees what he or she has done, never cradles it in his or her arms, has the chance to reflect on it before it is physically posted (although they can change it electronically on the day, but I would bet very good money that this has not happened), and never has that moment of existential dread before they put their physical signature to a physical document.

Any appeal based solely on form and never on substance is always open to very simple brushing aside. It may be that the rep in 3743/04 had a very powerful argument based on substance as well, but it does not come across in the decision of Commissioner Bano that that was the case.

Don't know if its just me doing something wrong but I can't seem to get the annex on the Commrs site, just a reference to it at the end of the decision. Is it on there?

Don't know if its just me doing something wrong but I can't seem to get the annex on the Commrs site, just a reference to it at the end of the decision. Is it on there?

Don't know if its just me doing something wrong but I can't seem to get the annex on the Commrs site, just a reference to it at the end of the decision. Is it on there?

It's not on there Damian because it cannot be anonymised (according to OSSCSC), you have to send them a pound if you want to see it.

Having now read both Commissioners decisions I am firmly of the opinion that they are both correct. This is because the first decision criticies the reliability of the IB85 as evidence, where the second decision (Bano's) states that tribunals can consider any evidence put before them. In each case it appears that they (the Commissioners) are saying that the tribunal can consider these reports as evidence and to allocate what ever weight they feel is appropriate. We are all aware that most of the content of these reports are very questionable by their very nature and the option selection process used by the medical examiners.
I feel a more authoratitive challenge must be made if doubt over the authenticity of the report can be raised.

Well if he can't even get his number right Andrew...............

I can't remember anyone ever arguing that we should forget the facts but myself and many others have consistantly argued that we should not forget the law. The way I see it the substance of an appeal is the totality of all the arguments that can be made in support of the case. Consider overpayments, over the years ourselves and others have won scores of cases simply because the DWP have failed to comply with the terms of S.71. I do not think that those clients who have had thousands of pounds of debt wiped away would regard such an approach as 'iffy'. When I started I didn't use technical arguments, firsly because I didn't know they existed and then because I wasn't confident about using them. The reason I'm evangelical now is I have never known a case to be anything other than enhanced by a technical argument and I do worry that your words of caution will put off many reps who are keen to develop their skills. Yes we will get bad caselaw sometimes but where is the loss? Not to those who may have benefited prior to the decision and certainly not to those who would have never argued the point anyway. In fact the only real losers are those clients whose reps never took the point when it could have made a difference..........

And the saga of the dodgy PCA's continues. Interestingly we always argued that the ECA didn't apply - it was the DWP that brought that one up. There's also a distinction between admissibility and acceptability and so even if Commissioner Bano's line is preferred we can still argue that the evidential value of an unsigned IB85 is such that the DM can't discharge his onus of proof. Everyone must have had DLA cases where the client disputes what the EMP has recorded he was told.And what's the first thing every Chairman or doctor says..."is that your signature confirming you have read the statement?" Now that's evidential value that we would do well to remind them about.

Points taken Mick, but you do have to be very careful (as of course you have to be with everything).

If you present a model idea for fighting an appeal, then someone may use it and either not use substantive points or use them poorly. A poor rep could subconciously miss powerful substantive arguments when blinded by snake oil.

In the case I have on this matter I greatly enjoyed half an hour of legal ping pong with the chairman, but it ended with the case being adjourned, and it's not yet been relisted. The client never even opened his mouth. I don't like that, and I am responsible for it, and even if it is justified I don't like ever being the reason for delaying proceedings or stopping someone's voice being heard.

Personally I reckon what Commissioner Bano says is probably right - there are no formal rules on admissability so you can't wish it away, so the supersession argument looks thin doesn't it?

But I know I've got pulled away from the substantive point (technical or substantive it's all 'the law', after all) of what is awful on the individual IB85 in my case. And I thought that might be a danger, but it's still happened. I'm not saying everyone else is as rubbish as I am, I just think it's very easy to let it happen. You think you have two arguments, but in actual fact one of them might not work and so may not exist, and then because of doing all that work on one, you didn't do the proper work on the other, so you haven't got two arguments at all, you've ended up with none.

Bad caselaw is bad for everyone, literally. If someone _just_ argues on technicality then any application for leave to appeal will I think always be looked down on by the person assessing it. Because they'll have done their client a disservice.

I want people to develop, I just think that you have to be careful, that's all.

A client of mine told me today that she had a medical in London that was not carried out by a doctor. She said he told that she would not be seen by a doctor today; that he was a contractor and that he normally worked in the office. She said that he did not sign the form in front of her. The report has been signed by a doctor though. We are pursuing this vigorously. Could this be the result of having electronic forms?