Is anyone else experiencing this problem? Recently the DWP have been flatly refusing to award claimants DLA without using any medical evidence to support their decision. Decision makers are not medical professionals so I do not understand why they can make nil awards without seeking supportive medical evidence.

Is the use of an EMP examination or GP Factual Report discretionary or does the Department have a duty to undertake such investigations in support of its decisions when making awards of DLA? I have obviously requested reviews of the decisions where the Department have not used medical evididence to support its decisions. Of course I shall appeal these decisions if necessary.

Also, what happens when the Dept carries out an EMP examination but not a GP Factual Report. Can clients request that a GP Factual Report be carried out as of right. Obviously EMPs are not objective and surely in the interest of fairness a GP Factual Report should be carried out? I find GPs now just dont want to help patients secure an award of DLA unless the Dept pays them for providing the service i.e. the use of facual reports and the fee the DR claims.

My understanding is that DLA was intended to be a self assessment process and further evidence would only be required in cases that were 'unclear'. Therefore, if the information on the form clearly leads to conclusion that not entitled then is quite justifiable for DM to refuse claim w/o further evidence.

A cynic may suggest, and I'm sure that at least one has done in the past, that the word 'unclear' in the above context has been reinterpreted as meaning 'likely to lead to an award'. In other words extra evidence is only ever asked for when to rely on the claimant's own evidence would mean making an award so the DM has to go on a fishing trip to find an excuse to refuse the claim. This generally leads to an appointment with our beloved EMP's.

The second problem is that, according to caselaw (Gillies) our EMPs are officially objective and incapable of bias in any way. Therefore I don't think you can assume an obligation on a DM to balance an EMP report with a GP report.

There are loads of issues about the choice of medical evidence by DMs and it isn't just an over reliance on GPs. A case that sticks in mind is a client with severe mental health problems and loads of contact with CPN, consultant etc yet they requested a report from the GP. By some strange coincidence that GP also happened to work part time as an EMP and a Tribunal medical member. Inexplicable, I'm sure you'll agree.

Thanks for your reply Andy. I am still confused though. I completed the client's DLA claim forms myself. If the decision maker based their decision solely on the claimant's evidence the claimant would have got high mobility and middle or high care. Thats inexplicable, but of course thats when us guys do our job and challenge these perverse decisions on behalf of clients.

I agree that DLA was designed to be self assessment but departmental practice was tightened up following BIP.

If the claimant on completing the claim indicates that s/he may qualify for benefit then the DM should not (following good practice, although they are not legally obliged to-I would love to be wrong on that) refuse an award without basing the decision on medical evidence, either GP factual report or an EMP report.

It would be far easier to get a decision of this sort overturned on appeal, by the claimant providing supportive medical evidence from his/her GP.

GP factual reports are usually the first option as they are cheaper. However, the new pro-formas often dont elicit the required information necessary to an accurate decision.

If a DM can make an award without getting medical evidence, say by showing the claim form to one of the medical services doctors then fine. Why waste further public money by sending out an EMP or applying for a GP factual report.

The department is under no obligation as to who they rely on for medical evidence. It has the choice between GP factual reports, consultants reports or EMP reports. It has no obligation to accede to the claimant's preference.

I also have noticed that more decisions are being made without medical evidence being used. However, they are still the minority and I suspect that it is the result of laziness, sloppiness or indifference by individual DM's rather than any unofficial policy. Or am I being too kind?

make of this what you will, but the general direction in which one is pointed is that of the EMP - if you are DM that is ........


Taken from the DM guide ......

51.3.1 General Practitioner Factual Reports (GPFRs)

(i) A special fee payable to individual GPs has been agreed whereby factual information based on a patient's clinical records will be provided. The fee does not extend to the provision of an opinion and so, unless the information is already contained within the clinical records, the GP will not be in a position to provide it. It has to be understood that individual entries in a patient's clinical record are relatively brief and will usually concentrate on diagnosis, clinical
findings and treatment plan. The records will not really contain any
meaningful information relating to care and mobility needs. In general
therefore GPFRs can provide useful information on the diagnosis and overall severity of a person's disabling conditions. It will not usually be appropriate to ask specific questions about the help a person requires unless there appears to be gross under-or over-representation of those in the claim pack.
(ii) Where a person has a number of different conditions which are being investigated and treated by a variety of hospital departments, the GP's records will be the place where all this information is co-ordinated. In these circumstances the GP may well be able to indicate the relative importance of the various conditions in terms of their effect on the patient's day to day life.

51.3.3 Consultants Reports

It is possible to ask a consultant to examine a person and to answer specific questions relating to the care and mobility needs. However, it has to be appreciated that such reports are expensive and take a long time to complete. More importantly though, it has to be recognised that a consultant's expertise will be concentrated in the areas of diagnosis, investigation and treatment. Whilst consultants usually provide excellent information in these areas, they often do not appreciate the full significance of questions relating to care and
mobility needs. Experience has shown that such questions are not answered as fully as adjudication officers would want. Consequently, the situations where a consultant's report is the most appropriate source of further evidence are likely to be few and will usually be confined to cases where the diagnosis is particularly uncommon.


51.3.4 Examining Medical Practitioner (EMP) Reports

EMPs have been given training in the discipline of disability medical analysis. Within this discipline, the diagnosis, whilst being an essential starting point, is only of secondary importance. EMPs will be able to assess what effects a person's condition is likely to have on day to day living. They will be able to provide a critical appraisal of whether a person's claimed care and mobility needs are reasonable in the light of the diagnosis and clinical severity of the
particular disabling conditions. Consequently if the evidence relating to the level of needs is incomplete, inconsistent or contradictory, an EMP report is likely to be most appropriate source of further evidence to deal with these issues.

my view of the general approach is that the claimant's evidence is not considered evidence - unless the claimant says something which supports disallowance. then it is evidence.

negative answers or remarks by an EMP or GP, or preferably ticks in 'negative' boxes are considered evidence, and form the basis of a negative decision, whereas qualifying remarks, or the overall assessment taken as a whole, if supportive of an award, are overlooked.

i've seen several EMP reports and FR's where the DM has read them as evidence constituting the basis of disallowance, where i have argued that it supports the client's case. the wording of questions on the variety of FR forms i've seen is so poor, they leave a lot of room for arguing.

what i find frustrating, is the written submission - reasons for the decision - "it has been established that the claimant isn't entitled..." doh!

just seen a FR where GP has said "Not known" to the question about ability to selfcare. DM has taken that as the evidence establishing
that claimant doesn't qualify - there is nothing else - certainly client's evidence has been ignored. Actually, I think the DM has a view that client's disability is not severe enough, but has not said so and uses the "it has been established that..." argument.

as for the specially trained EMP's, do you think, "supposing you were stranded in the middle of the sahara desert, and you had a pan, and some meat and veg...? is a good approach to the cooking test? : )

jj