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credit to ESA DM where due!
client awarded ESA with wrac. scored 0 points following 2nd WCA and appealed. Significant med. ev. gathered and sent in support of appeal. DM at appeals section where some appeal work has been sent by the Benefit Centre refused to revise. On return to home BC another DM considers evidence and revises decision under ESA Reg 35(2)(b) ‘exceptional circumstances’ and awarded ESA with support component.
As computer generated revised decision notice did not specify which support group activity was satisfied I was (remarkably) able to speak to the DM in person to receive the above detail and an explanation of why she had accepted the med. ev. & revised the decision.
I have to applaud the thoroughness and quality of reasoning for the DMs revised decision. Why can’t they all be that good? Bankers have been given gongs for less!
It just shows that however many times we submit additional medical evidence with nil result that it is still worth it!
Had a very similar experience in a nil points case recently, but it took them three and a half months to revise - presumably when an appeals officer started to prepare the submission and reallised that this really sick client did have LCW and should be in the support group. This was despite attempts by me to get them to revise with loads of additional evidence after appeal submitted.
So DWP score 10/10 for eventual result but only 1/10 for effort (“Note to decision maker: Please see me after class to explain your behaviour”).
We’ve had a lot of decisions revised so fair play. However, there’s no consistency. My colleague has a case with a two page letter from the client’s psychiatrist stating, among other things, that there’s a real danger of further suicide attempts if she was forced back to work. So what does the Department do? Send back a further sub’ saying that the health care professional (a nurse) is specially trained and therefore better qualified than the psychiatrist to make such an assessment. I despair sometimes. I really do.
(“Note to decision maker: Please see me after class to explain your behaviour”).
In this case please see me after class for six of the best.
I used to be an IB DM and appeals officer and revision numbers are monitored. I was told I was revising too many. Also most cases have to be discussed with a HCP or doctor from Atos as well- and they may not recommend a revision based on the new evidence submitted. Its very frustrating !
I agree. It’s incredibly inconsistent. I had to fight like mad to get a decision revised where the client had a mental age of 8 and we had loads of evidence to prove it and yet another one of my cases has been revised recently for no apparent reason whatsoever (whats more he’s been placed in the SG. I have no idea how or why).
I too was a decision maker and appeals officer, but for income support/JSA. Sited next to the (as they were then) incapacity benefit appeals officers, I can well remember the pressure that they were under to follow Medical Services “advice” and opinions.If Harrington reviews have done anything, it is the forceful reminder that the decision should lie with the decision makers, taking account of all medical evidence.
Then we get to the central issue in all areas where judgement is required - different people view the same thing in different ways. Seemingly endless hours of radio phone in time are spent analysing the actions / in-actions of referees, with supposedly intelligent people from managers, players, fans and journalists crying “why is there no consistency?”. Yet comparing their own views shows exactly why there is such inconsistency.
I am sure we have all seen cases we think are “obvious”, perhaps where most people would agree on the outcome, but which have not ben viewed in the same way by the Department. Equally, I have seen decisions that are favourable to my clients that are, to put it mildly, generous.
Some decision makers will relish the opportunity to exercise proper judgement over all available evidence - others will stay “safely” to Medical Services advice. The approach may be affected by management in a particular office or section - there may be pressure to clear more cases more quickly, and I am sure most sections have substantial amounts of work to deal with. Like in all jobs, some are good at it and some aren’t. Some will have come into work with a shed load of domestic stresses, or other things on their mind. Some will have personal knowledge of a particular condition, perhaps because of a family member.
There isn’t quite the argument any more that the appeals officer feels somehow embarrassed that a particular decision is going to tribunal. It was far more relevant when (as I did) you had to actually present the appeals at a hearing. Nothing sharpens the mind, in my experience, than the thought that you may have to jusify a decision face to face, rather than down a telephone. I well remember one colleague on a benefit processing section who was very vocal about the cases I revised on appeal, who took a markedly different stance when he came to work on the appeals section itself!!
Indeed, tribunals are very inconsistent. The biggest single factor in most ESA and DLA cases is ( I feel) who is actually on the tribunal.
I would agree with you. We can all sincerely disagree about what is reasonable or what the right outcome should be and, yes, there is the good, the bad and the indifferent in all professions. However, in my colleague’s case, leaving the evidence itself aside, the statement that the nurse is specially trained in disability and is therefore better placed than the psychiatrist has (as commissioners have noticed elsewhere) the air of a mantra about it to me and is sloppy and tired reasoning and has no defence in my view.
Totally agree with you Paul!
Just last week i had to attend a Tribunal with a client where we had submitted a letter from the psychiatrist which stated there would be significant risk etc etc and we had recieved the same further submission from the DM.
We didn’t even make it as far as the Tribunal room. The clerk came out with a decision in our clients favour and appologised that they’d even had to attend.
I can’t describe the terrible state of mind my client’s been in for the last 6 months while this has all had to run its course but shocking decision making in this and other cases we’re dealing with.
Then there are the ones that get revised without any medical evidence or otherwise being submitted…..just doesn’t make sense to me.
“We didn’t even make it as far as the Tribunal room. The clerk came out with a decision in our clients favour and apologised that they’d even had to attend”.
I should think so.
I’ve just had a case where the client’s father submitted a letter from his G.P. stating that he had been admitted to hospital after an attempted suicide two months after being booted off. DWP response, nothing.
Did I have to write to the Department citing the court of appeal in Charlton and submitting that two months was a sufficiently short period to establish on the balance of probabilities a causal nexus between the two events to get the decision revised? Yes.
Should I have had to write to the Department citing the court of appeal in Charlton and submitting that two months was a sufficiently short period to establish on the balance of probabilities a causal nexus between the two events to get the decision revised? No.
The next time he gets booted off ESA he just might be more successful in attempting to do away with himself. I’m not trying to be melodramatic here. He’s young and with time and appropriate treatment he can make a better life for himself and his family. And it’s right that the benefit system should just not leave him to rot on ESA forever. But this WCA and its assessment process is not the answer and is inflicting great damage on fragile lives.
Oh. And well done Labour for the 1998 Social Security Act which made DM’s answerable directly to the Secretary of State, thus removing the relative independence of Adjudication Officers who were answerable to the Chief Adjudication Officer.
True, but adopted by Labour and driven through Parliament by them.
From Maria Miller MP, Under Secretary of State and Minister for Disabled People - in context of the proportion of WCA/DLA appeals that are successful -
” .... it does not necessarily follow that the Department’s original decision was incorrect”.
We have seen similar ministerial / civil servant speak in the past on the same issue.
Rather demonstrates the barriers faced to improving the quality of decision making within the DWP!
‘...It does not necessarily follow that the Department’s original decision was incorrect..’
Run that one by me again??
” .... it does not necessarily follow that the Department’s original decision was incorrect”.
Thus we have now entered an Alice in Wonderland of a world where there is absolutely no connection between the appeal and the original decision. So that leaves a clear judicial playing field to ban appeals to independent tribunals altogether. George Orwell can now be heard spinning furiously in his grave.
” .... it does not necessarily follow that the Department’s original decision was incorrect”.
Thus we have now entered an Alice in Wonderland of a world where there is absolutely no connection between the appeal and the original decision. So that leaves a clear judicial playing field to ban appeals to independent tribunals altogether. George Orwell can now be heard spinning furiously in his grave.
...now entered ... haven’t we been there for years? Remember when Alice returned from Wonderland no time had passed in the real world! Although many have passed since we first saw that phrase in responses from ministers.
Far be it from me to suggest that a minister would be disingengeous (purely on the advice of the a civil servant of course)
There is history from the minister with her comments justifying why dla mobility should be removed for residents in care homes.
Shaun