Advice on Appeal where there has been a PA3 report, overruled by a PA6 report

PIP submitted.  Cl had ‘phone assessment’ - Decision letter awarded 2 points for activity 9.
Having requested copies of reports/details of case, determined Cl was awarded 15 points for D/L and 12 for mobility at this ‘phone assessment’ - carried out by a nurse.  Report was PA3.
Second assessment was carried out by a different nurse who had no contact with Client.  This report was PA6.  Decision maker agreed with PA6 and Cl refused PIP, total points awarded, 2 for D/L activity 9.  0 points for mobility.
MR submitted on grounds of an unfair assessment process.  No change.
Going to take this to appeal.  Has anyone had experience of this before who can help?  Any case law?
Can confirm both reports refer to Cl, so not an administrative issue.

If you’re heading to appeal then most tribunals really don’t want a medical evidence debate. You’re generally kicking at an open door - they mostly know how poor the reports are - and are best focusing on what points your clients scores and why allied to detailed real world examples of why they can’t perform said activities at all or reliably. A written sub to cover all that and you’re most of the way there.

There are 2 ways to give less credibility to a HCP report.

One is to throw up 2 or 3 obvious and undeniable or egregious and demonstrable errors and leave it there. Another is to simply not address it at all. If you ally good evidence to a good submission then the case gets made. The object of the exercise is to get an award of benefit and not to do so by somehow beating or beating up a HCP. 

I describe this to claimants in terms of “You don’t get an award for showing that someone else’s evidence is rubbish if you don’t have enough evidence to get an award anyway.”

The worst way to go is to put such reports at the centre of the debate by microanalysing them page by page. Generally speaking I’d say most such reports have a minimum of between 30 to 50 errors or areas of dispute but so what. In reality it doesn’t matter whether there is 1 error or 50. The task is to get entitlement and that can be achieved with virtually zero reference to the various reports.

A PA3 report is produced when there is a paper based assessment and does not involve the claimant. A PA4 is the report from the claimant interview. A PA5 is a supplementary advice note and a PA6 when there is a change of advice.  I think that PA5/6 reports are either done when further advice requests are made by a Decision Maker at DWP or possibly when the report has been audited by a more senior assessor.

Therefore, it is odd given that your client had a telephone assessment that there is a PA3 but not a PA4. I would be asking DWP where the PA4 is.

PA5/6 reports are done routinely either because the case is randomly pulled up for quality control review and found not to have met standards or when a DM requests further advice from the HCP either because they have received further evidence or want clarification on the original report. You are not going to get anywhere arguing that the process was unfair. Both reports ought to be in the bundle and the tribunal can decide what weight, if any, to attribute to each of them.

I am very much a follower of Mike’s general philosophy of “let’s stick to the facts and not get bogged down in nitpicking the assessment”, however in this case you have an initial report which assesses your client as qualifying for the enhanced rate of both components and it would be a bit of a forensic own goal not to make as much of that as you can. You are perfectly able to say: “Mr A scores under descriptor N for reasons X, Y and Z. It is further noted that the respondent’s assessor, Nurse A, accepted as much when assessing him. Although Nurse B later gave different advice, this appears to have been based on a file review without speaking to him and can attract limited weight”.

If you can persuade a tribunal that, properly construed, the DWP’s evidence actually supports your case, it is difficult to lose.

Thank you Mike, BCD and Elliot - all sound advice which I will take on board.  Understand that criticism of assessors will probably get me nowhere, but do agree with Elliot that the report from Nurse A is worth quoting.  My problem with the whole thing is still that nurse B had no contact with client so her whole report was based on assumption.  Looks like I’ve got a busy weekend!

My experience has always been that even where there has been contact with the claimant the whole report is based on assumptions, which is why I largely refuse to engage with them and focus on detailed anecdote to establish entitlement.

Have lost track of the number of claimants who were asked things like “So you can cook for yourself?”, which is a statement rather than a question. Claimant follows up with “Well no, not really” and gets a response of “Yes or no please. I just need yes or no answers.” Not quite how we’re forever being told it works but in reality that’s exactly how it works.

FWIW I have challenged a couple of assessments in the past decade. One where the HCP was insistent that the gender of the claimant was female rather than male. Exactly the sort of single fact egregious nonsense which makes it easy to lessen the weight of a report without microanalysis of every para. The other involved statements about capabilities the client could not possibly have had as they didn’t have the limbs to perform them. In the latter the outcome was a second report which recommended 6 more points than the original so job done. I am generally reluctant to challenge as the most common outcome is either outright denial and frustration or a second report. I have never found it helps a claimants faith in the system to put them through the stress of a second assessment.

Thanks Mike - couldn’t really make it up!

Just thought I would let you know - DWP awarded Cl double enhanced awards for PIP - backdated to July without going to Tribunal in the above case.  Took your advice, used the Nurse A assessment, made my case and SUCCESS!
One delighted client and one happy caseworker.  Thanks for help again.