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Forum Home  →  Discussion  →  Disability benefits  →  Thread

PIP where the claimant is not following medical advice

Victoria Hay
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Welfare Benefits Adviser - Hackney, City and Waltham Forest Mind

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Total Posts: 23

Joined: 23 August 2019

I was wondering if anyone knew of any specific guidance or case law about assessing people who are not following medical advice.

I’m challenging a recent decision relating to a client with epilepsy and mental health issues.

The epilepsy is quite severe. The client is refusing medication. The last medication he tried had severe side effects (including causing extreme anger problems) making it very reasonable to stop. But he has refused to consider alternatives. He’s put off by the experience. He is also very angry that his doctors would not put him forward for a CBD trial. And he’s quite distrustful about medicine and official advice.

Renewal - from Standard rate daily living only. (Pretty sure it should be enhance/enhanced). Reduced to 0 points after assessment. (Absolutely unjustifiable - they even took away the points he has for having an adapted shower).

I know I can explain at appeal if needed but I’m looking for anything particularly strong for MR.

I’m sure this was a major issue at the HA and will show up in the HA report (don’t currently have a copy).

The change to his benefit (which removed SDP as well) and they stress of being told he was “not sick enough” have had a huge impact on both his mental health and his physical health. Stress increases his seizures and he had 4 in one day. Knowing I can win at appeal doesn’t really help when the affect on his health in the mean time is so bad.

So I want anything that can strengthen the MR.

I was only able to find some stuff about pain medication which doesn’t really apply. And some different rules for ESA. I don’t know if there’s nothing out there (though it feels like there should be given how frequently HA reports dismiss people based on their medication), or its because it is so hard to look up because refusal, not following, medical treatment etc. all bring up completely unrelated issues.

Does anyone have anything that might help ?

Stainsby
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Welfare rights adviser - Plumstead Community Law Centre

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I have so little faith in MR that I rarely if ever make much more than a token effort and I save my energy for providing a good submission to the Tribunal

If you are looking for case law, there is a fair amount of it in the DLA context which arguably remains relevant:

You could try looking at

R(DLA)10/02 at [38]-[47]
CDLA/3925/1997 at [6]
HJ v SSWP [2010] UKUT 307 at [4]-[6]

It is settled law that the claimant’s own beliefs about his or her treatment are relevant.

It is arguable in your client’s case that there is only weak evidence that your client’s beliefs are unreasonable, irrational or without foundation. 

Even if your client did have unduly strong beliefs about the side effects of treatment, I would point out that the nocebo effect is a real as the placebo effect.

Benny Fitzpatrick
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Welfare Rights Officer, Southway Housing Trust, Manchester

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Have you put in a new claim, as it may be months before you get an outcome?

If not, the frequency of his seizures now,  would indicate a significant supervision need on “planning and following journeys”, “preparing food”, “washing and bathing” etc.

It will also mean the appeal will be for a “closed period”. However, my experience is that Tribunals will usually allow the appeal if there is an award on the new claim.

Victoria Hay
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Welfare Benefits Adviser - Hackney, City and Waltham Forest Mind

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Total Posts: 23

Joined: 23 August 2019

Thank you both so much !

I agree about not normally expecting much from an MR - but because this does seem quite time sensitive (and because I’d be happy to get the previous amount back and continue to appeal for the actual right amount) I am trying.

I think if a (hopefully prioritised) MR doesn’t work it is worth looking at a new claim. I hadn’t really thought about that.

That’s really helpful.

(Neurologist being less helpful and saying - what can I say ? You’ve refused treatment).