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Case Law to undermine HCP “inaccurate” reporting.

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John Birks
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The HCP wouldn’t need to attend (I believe) because they’ve provided a witness statement.

But the HCP is playing two roles as I understand it - a Fact Witness and an Expert Witness.

 

Dan_Manville
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Billy Durrant - 08 August 2018 10:58 AM

Agree but inaccuracies and lies have to be rigorously challenged in order for HMCTS to keep understanding that there IS a systemic problem with assessments

I think we can cover this in recon/appeal correspondence. My recon letters have reached a quite weary tone these days “yet again the HCP has discounted the claimant’s account and -as ever- has relied instead on informal observations that are wholly unrepresentative of the claimant’s day to day experience”

They read like “here we go again; they missed that the family are prompting them to attend to their ADLs.”

Still probably 80% of my appeals turn on IOs overlooked prompting provided by friends or family which can be summed up with “well they made it here and they’re clean and pretty well fed; they must be ok”

 

[ Edited: 9 Aug 2018 at 10:51 am by Dan_Manville ]
Mr Finch
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“Why would a HCP put something in the report, which was not said by the claimant?”

Because the reports are in part written by computer. (Perhaps less so with PIP, but it’s still a bit secretive.)
Because the report isn’t able to accommodate the whole examination verbitam, so is designed to be an edited account of what the HCP understands the claimant to be saying.

John Birks
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Trying to get HMCTS is pushing at an open door - They are more than well aware.

https://www.disabilityrightsuk.org/news/2017/november/senior-judge-says-dwp-evidence-tribunals-so-poor-it-would-be-wholly-inadmissible

But them being aware of issues doesn’t mean much. Appeals can’t be overturned just ‘because.’

Case Management will/may/could sort it out.

past caring
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Agree with what everyone has said about the general futility of pursuing an argument that the HCP report is ‘lies’ and particularly with this;

nevip - 07 August 2018 09:50 PM

The question that the tribunal asked in the OP is actually the wrong one.  It should not have asked why the assessor would lie in the report but what evidence do you have that s/he lied.  In other words, put up or shut up.

Two of the most important lessons representatives can and must learn in conducting themselves at tribunal hearings are, 1) never ask your client a question that you don’t already know the answer to, and 2) never make an assertion of fact that you cannot substantiate.

It takes years for a representative to establish a reputation with his or her local tribunal service as honest, fair minded and knowledgeable of the law and the rules of evidence.  It takes less than half an hour to ruin one.

That said, very occasionally, you get one that comes back to bite you on the bum…...

Client referred in January for ESA WCA failure appeal. Is incensed by the ‘lies’ in the HCP report. I give her my usual spiel about how a) that might well be the case but we can’t prove it, b) how my rubbishing the HCP report achieves only that - it doesn’t show that she actually meets the qualifying conditions, c) that anyway,  the starting point of the vast majority of tribunals is scepticism of the HCP report but d) they will still need something to hang their hat on evidentially, so what we need to do is to establish the qualifying conditions are met…..

Upshot being that if she wishes to pursue a complaint about the HCP report, she is at liberty to do so, but I have neither the time nor resources to assist with that - I can and will assist with the appeal.

I get nothing back from the GP when I request medical evidence - and everything that she has is at least three years old, much of it older. A week before the hearing and I’m panicking…..

I know that she did pursue her complaint because the MP from whom we get many of our referrals has told me so - but then, purely by chance, I happen to re-read an email he has sent regarding another client and realise he has mistakenly attached a letter from CHDA about this client’s complaint. It contains the following gems;

As a result of the Medical Advisors review we informed the Department for Work and Pensions (DWP) on the 29 November 2017 that the assessment report does not fully meet our quality standards. It was concluded that the full effects of your medical conditions had not been sufficiently explored or investigated. For example, the medical advisor advised that there is an absence of specific information about your ability to mobilise and whether this can be done repeatedly, reliably and safely with aids, but without the help of another person. Also more detailed information is required about your ability to cope with changing routine and interacting with other people.
…….

The medical Advisor went on to explain that there is information available that you can go to your GP surgery but no indication as to how often that might be and the frequency you need to rest while walking.

Further, the Medical Advisor explains that the Typical Day mentions that you “interact with others” but there is no further information as to precisely what this interaction amounts to in relation to your level of function.

Apart from information from your GP, there is little evidence in the report that you are able to cope with all forms of change.

The 29/11/2017 date is significant because it was well within a month of the DWP’s disallowance decision - and full three months before its submission/response to the appeal.  This prompts me to check the DWP sub in a little more detail than I had done originally - there is no indication of anything being amiss in the submission writer’s response and reliance is placed entirely on the content of the ESA85 report as forming a sound basis for the supersession decision (client, had, fortunately, previously satisfied the WCA in 2012). And then I find an internal memo from the Medical Services Customer Relations Medical Adviser to the Customer Relations Manager which contains another gem,

...I am not persuaded the full effects of the claimant’s conditions have been sufficiently explored or investigated in enough detail. Consequently, it would be difficult to counter any opposing view. The report would, in my view, be difficult to defend if seriously challenged.

Whilst reg. 6 (2)(r) of the D&A Regs. provides that receipt of medical evidence from a health care professional is a sufficient ground for supersession, the Secretary of State still has to discharge the burden of proof required to establish a decision should be superseded - see CIB/1509/2004 and ST v SSWP (ESA) [2012] UKUT 469 (AAC) - so that was the argument I went with.

We won, obviously, and it was pleasing that despite there being a medical member on the panel, the tribunal felt no need to go beyond the legal argument, something I wasn’t sure would be the case in advance of the hearing.

But really, what the hell went on here? That the DWP continued to defend its decision is outrageous.

 

[ Edited: 8 Aug 2018 at 02:43 pm by past caring ]
nevip
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Past caring

I had a similar case with a PIP appeal.  I got a phone call from a DM who said that the assessor had clearly not explored the limitations on my client’s degree of functioning according to the requirements of the statutory criteria.  She went onto inform me that she was willing to ward sufficient points to award SDL, which was what we were going for, outlining which descriptors she thought were satisfied. 

That was fine by me.  I phoned my client and explained the position.  She was happy and authorised me to accept.  I phoned the DM back and authorised her to proceed in the way she proposed.  Job done.  Initial decision overturned that day and client informed by post within a couple of days.

Ianb
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Dan Manville - 08 August 2018 11:21 AM

“well they made it here and they’re clean and pretty well fed; they must be ok”

Which can, of course, just be evidence that claimant is getting the prompting and/or assistance that they need!

Pete at CAB
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Although I very much agree with past caring’s usual spiel ( mine is pretty much identical!) I cannot help but wonder if there would be something to be gained if an HCP could be ordered to attend a hearing under Rule 16 of the FTT Tribunal Rules, (after all it is not uncommon for DWP officers to attend as witnesses in (for example) overpayment cases to give witness testimony and be questioned about about seeing the cl. walking the dog or similar and I can’t see that an HCP is, in this respect, very much different).

It may be a side issue compared with entitlement via the descriptors but the possibility that an HCP could be compelled to attend in person and answer questions (under oath?) from Tribunal members challenging the reasons behind the assumptions the HCP may have made might serve to encourage all HCPs to be more careful and considered in their reports.

Stainsby
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I have attached a few of my submissions here that you could adapt in order to attack an inaccurate HCP report.

I have used case law, a house of commons report , the Adult Obesity Health Survey , along with ICD10 and DSMIV to challenge and highlight inadequacies in HCP reports

File Attachments

RichB
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Provide a copy of the press release for the House of Commons Work and Pensions Committee on PIP and ESA assessments with your submission

https://www.parliament.uk/business/committees/committees-a-z/commons-select/work-and-pensions-committee/news-parliament-2017/pip-esa-full-report-17-19/

Take the full report to the hearing to be produced as required

https://publications.parliament.uk/pa/cm201719/cmselect/cmworpen/829/829.pdf

 

FerhanaBhogadia
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Stainsby - 09 August 2018 01:52 PM

I have attached a few of my submissions here that you could adapt in order to attack an inaccurate HCP report.

I have used case law, a house of commons report , the Adult Obesity Health Survey , along with ICD10 and DSMIV to challenge and highlight inadequacies in HCP reports

Hi
This is really helpful.
I’m having difficulty locating:
[2015] AACR 23
AM v Secretary of State, [2013] UKUT 094 (AAC)
interim decision of Judge Turnbull in CH/1168/2011

I’d love to use some of this great caselaw, but need to submit the caselaw quoted to any FTT / UT
Can you help?

Thanks again.

Stainsby
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Here are two of them ( I cannot find CH/1168/2011 anywhere you could try emailing the UT and ask them to email you a copy)

[ Edited: 19 Aug 2019 at 03:33 pm by Stainsby ]
WRT Case Worker
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Ianb - 08 August 2018 08:12 PM
Dan Manville - 08 August 2018 11:21 AM

“well they made it here and they’re clean and pretty well fed; they must be ok”

Which can, of course, just be evidence that claimant is getting the prompting and/or assistance that they need!

I like that. a cheeky but effective retort for those pesky tick box inferences…

Well kempt, Normal complexion, Heard her name called, etc.