have a cl with appeal listed for 14.06.05, suffers from OCD with associated anx/dep. cl had ICB appeal in '03 which was successful, total 18pts given under mh des, this time she was given 7pts only

obvious approach is to ask trib to look at past points but on discussing descriptors many appear n/a to OCD i.e household chores - apathy is not the issue as cl will spend all day doing them. fluoxetine is only current med and currently cl not receiving regualr counselling

DMs handbook lists OCD(19.7.6)which i will initially use to argue reg10 exemption, jus wondering if theres any CD's out there that will support? or any other arguments i can use? i feel quite strongly about this as cl is obviously not a well woman but dont wanna rely on trin being sympathetic and "finding" points aaccordingly as past trib seem to have done

I wouldn't agree the obvious approach is to ask the tribunal to look at past descriptors, except on the basis of consistency, but even that can be fairly weak. The tribunal will want to reach thier own conclusions about each of the descriptors and the claimants condition as a whole.

There's also nothing wrong with a 'sympathetic' tribunal... They have the benefit of hearing first hand about the claimants problems and will be better advised than the DWP (usually) about the claimants overall capacity to undertake each of the descriptors in the context of the claimant as a whole. Don't forget that as a judicial body, they have discretion to interpret the law (ie. each of the descriptors) with a reasonably free hand. Usually, we all moan because they exercise that power in a faulty way - I wouldn't be so quick to criticise or cast doubt where tribunals 'appear' sympathetic.

All we can do is enusre that all the evidence is in front of the tribunal and that the claimant gets a fair hearing.

On the indvidual desciptors, I could find 18pts that may apply to a person with OCD. This total may be more or less depending on the particular client's disabilities. Other colleagues may find more or less based on thier own experiences of client's with OCD. Some descriptors have to be read in the context of the clients problems. For example, I might argue that a person with OCD (frequent washing) scores 1 point for 'does not care about his appearance or living conditions'.

To some, this might seem strange, but how might the OCD affect other aspects of appearance (how other people pervieve the person) or living conditions (maybe laundry or housework is left undone). What about the words 'does not care'. Perhaps it could be said that in the context of OCD, this type of 'caring about' is not reasonable, especially if other areas are neglected. (hope that makes sense).

thanks for the reply, i guesss my main reason for post is to get another's perspective on the isssue.

agree in full that further exploration into the meaning of each descriptor will be useful. by "sympathetic tribunal" i meant the risk of landing in front of a chair who is not sympathetic and thus less likely to be persuaded tht descriptors apply, something i am particualry mindful of with any MH appeal

and a search of the SS+CSC's site turned up nothing of help

Hi Jason,

I hope my perspective was useful.

I understand your concerns about 'sympathetic tribunal', but there's not really any way around that. In DLA/AA/IB cases, I usually go with the theory that if we can get the DM/Tribunal to have a good picture of an average day in the life of the claimant, and they properly apply the law, then that's all we can do. We can't win every case and sometimes claimants have to just face up to the fact that they're not entitled. The problem is, and I think this is the point that you make, that the inconsistency between different DM's can seem inherently unfair.

If you think you can't make enough points, then post up some details about your client's needs and those descriptors you're not sure about, and perhaps contributors might offer some advice on interpretation?

I would strongly recommend highlighting the previous score at previous examination (presuming that this was what client was scored at exam rather than at appeal). I would also be requesting that the DWP provide this previous report to the Tribunal.

The common appendix to CIB/1972/00 and CIB/3667/00 dealt with the relevance of previous reports when the PCA comes round again. Basically it was held that, if there was evidence that the appellant's condition had not changed, then the previous report was valid evidence and should be considered.

This is not to say that the new Tribunal is bound by the previous report because they clearly are not. What it means is that they will have to explain why they preferred the negative report over the positive one, which they cannot do just by saying that its more recent.

We find that its worthwhile asking the GP for an opinion as to whether client has got worse/better/same and using this to argue the above. In addition, if you haven't got the previous report and the DWP are unable to provide it (which I understand is the case in something like 95%) of appeals then you can use this to argue that client can't get a fair hearing as important evidence is not available.

I would be worried about applying the above arguments on their own but in conjunction with your primary case ie a discussion of the descriptors client feels they satisfy it can make cases strangely more easy to win.

I really don't know if this helps but there's a good DLA Commissioners Decision on OCD - CDLA/271/2002.

As i say don't know if this helps you with the IB appeal but it's worth a read if you havn't already.

As a back up for your Reg. 10 arguement, what about Reg. 27 exceptional circumstances? The original wording that was reinstated post Howker states that someone should be treated as incapable of work if there would be a substantial risk to their physical or mental health were they to be found capable of work.

Hi Bensup.

You may or may not be able to help Jason but you might well help me if you could fax or e-mail CDLA/271/2002 to

023 9271 7741
or
wb.clsteam@waterloovillecab.cabnet.org.uk

Thanks.

Done. Hope it helps!

Well i tried. Number you gave does not go to fax, just message that you're closed.

I'll try e-mail but have never done that before from another site!

Alternatively you can get it off OSSCSC yourself. Please note the decision is CDLA/2717/2002, i missed off a 7 in previous posts!