Evidence likely to be harmful to client

Good morning everyone,

Although aware of the principle of medical evidence being kept from a claimant/appellant that could be harmful to their health, I’m afraid that I am unable to trace the authority under which it is provided.  As always, any help much appreciated.

Thank you.

Patrick

The following assumes the issue is in the context of an appeal.  I’m can’t cite any legal authority but a relatively recent experience involving a Tribunal hearing may assist.

It was an ESA appeal and, amongst other things, the appellant had been diagnosed as having depression, ranging from moderate to severe.  At the hearing, the rep asked the Tribunal to hear some of his own personal observations without the clmt being present - the appellant was agreeable to this.  The Tribunal refused (politely), explaining that such a move would by definition prevent the appellant, who was present at the hearing, from being able to make comment / observations if needed.  Further, the Tribunal pointed out that evidence given in such circumstances potentially put the Tribunal in difficult position in the event of either a statement of reasons or the record of proceedings having to be produced subsequently, given that the appellant would have an absolute right to view those documents.

With the benefit of hindsight, my view is that the Tribunal took the right approach for the right reasons.  As an aside, the appellant’s appeal was successful.

Hello again,

I think I’ve located the authority in question.  It lies at Regulation 42 to The Social Security and Child Support (Decision Making & Appeals) Regulations 1999:

“Non-disclosure of medical advice or evidence
42.—(1) Where, in connection with the consideration and determination of an appeal or referral there is before an appeal tribunal medical advice or medical evidence relating to a person which has not been disclosed to him and in the opinion of the chairman, or in the case of an appeal tribunal which has only one member, in the opinion of that member, the disclosure to that person of that advice or evidence would be harmful to his health, such advice or evidence shall not be required to be disclosed to that person.

(2) Advice or evidence such as is mentioned in paragraph (1) shall not be disclosed to any person acting for or representing the person to whom it relates or, in a case where a claim for benefit is made by reference to the disability of a person other than the claimant and the advice or evidence relates to that other person, shall not be disclosed to the claimant or any person acting for or representing him, unless the chairman, or in the case of an appeal tribunal which has only one member, that member, is satisfied that it is in the interests of the person to whom the advice or evidence relates to do so.

(3) A tribunal shall not be precluded from taking into account for the purposes of the determination advice or evidence which has not been disclosed to a person under the provisions of paragraph (1) or (2)”.

Thank you,

Patrick.

I’d clean forgotten about that provision - and so, it appears, did the Tribunal in the case I referred to (although, on the facts of that case, I think it was still the right approach).

As it happens, given that I have all but left benefits, I’ll take my oversight as rather promising and comforting evidence that my mind shall not be forever inhabited by the flotsam and jetsam of all things benefits :-).

Hello again,

What I really needed, but failed to make it clear was, authority for Decision Makers to keep evidence from, for example, CPNs, from claimants under similar principles.  It does appear to exist under DMG paragraphs 01590 to 01592.  I am aware that this makes reference to eveidence from GPs, however, there is reference to Health Care Professionals earlier in the guide.

Hooray for us as does.

Thank you.

Patrick

In my view rule 14 is drawn widely enough to give a power to a tribunal, with or without an application by the claimant’s representative or the DWP, to withhold almost any document from the claimant’s eyes (or anyone else for that matter).  However, this must also be balanced with the claimant’s rights of access under the Data Protection Act and his rights to a fair hearing under the Human Rights Act.

My recollection si that this is intended to cover evidence which is likely to be directly harmful for health reasons: telling someone who doesn’t know that he is terminally ill/has cancer/has dementia/has severe mental illness which is the cause of what he believes to be purely physical problems. It does not cover evidence that is merely unpalatable or annoying to the claimant, for example their own GP says that they exaggerate or have nothing significant wrong with them, or that their problems are due to lifestyle choices (eg, wouldn’t have any problems with knees if lost weight/emphysema linked to smoking which he refuses to quit).

I’ve only used it once. a long time ago (client had a diagnosis of cancer but had significant mental health problems so diagnosis was known to his wife but had not been disclosed by consulant to client). We submitted report from consultant for a DLA appeal with a ‘harmful evidence’ request for it to be circulated to panel only (which it was).