PIP decision notes first line anti-depressants

I have noted on a few recent decision that DWP decision makers are making reference to service users taking first-line anti depressants.

This is generally presented without context and normally means the claim has been unsuccessful.

I have contacted the DWP asking for some clarity on this, as second line treatment can vary from upping the orignal dosage or by switching to an alternative first line anti-depressant.

This comes across as a blanket statement which is presented as fact, whereas in reality the health assessor does not fully know what line of treamtment a client is on.

I have attached the flowchart which you may find useful and i will endeavour to update with a response

I see this all the time too. You’re right that it sidesteps the substantive issue – what is the claimant’s mental health like, not what treatment have they been able to access/have prescribed.

With respect to pain, the PIP assessment guidance is quite clear (shock horror):

1.6.35 HPs must also take into consideration the invisible nature of some symptoms such as fatigue and pain which may be less easy to identify and explore through observation of the claimant. HPs should be mindful that the level of analgesia used does not necessarily correlate with the level of pain. GPs are encouraged to avoid prescribing strong painkillers for long-term pain as the harms usually outweigh the benefits and there could also be specific reasons why painkillers aren’t prescribed e.g. intolerance, or the use of other methods of pain relief. When pain is a significant symptom we would expect the claimant to be able to describe the location, type, severity and variability of the pain they experience and the impact it has on their daily life. The HP can assess the disabling effect of the pain by considering such description (where applicable) along with all other aspects of the case, e.g. disease activity/severity, effect on daily activities, treatment, pain relief, pain management strategies, examination findings and informal observations.

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/918328/pip-assessment-guide-part-1-assessment-process.pdf

I’d argue the same principle should carry over to treatment for any other disabling symptoms, such as low mood, anxiety, etc. Certainly if there’s a case to argue that the prescribed medication doesn’t work well/reliably/at all then a lower dose or well-known antidepressant being prescribed should actually go some way to demonstrate the claimant’s difficulties.

It’d be good to get some case law to really affirm that. Even then they’ll still try it on, but it’ll be a bit easier for some claimants once we’ve got something to try and avert tribunal hearings at least.

I see this time and time again

I often cite MM v SSWP (ESA) [2018] UKUT 446 (AAC) in my submissions when I come across the “1st line” argument

Judge Poynter held in in MM v SSWP (ESA) [2018] UKUT 446 (AAC) at [34-[35]

34 The claimant’s representative comments

“A current lack of treatment is not by itself [a reason] including the appellant did not meet the qualifying criteria. … The appellant had had the conditions and symptoms for many years. It may be that management by the GP was currently considered the most appropriate by the appellant’s own health care professional, other treatments and interventions having taken place over [preceding] years. The tribunal made no findings about prior treatments and interventions the appellant had undergone. … The tribunal should have put those concerns to the appellant and considered an adjournment to seek further evidence to address this issue.

35 I broadly agree with those observations. However, I do not agree that the tribunal should have put its concerns to the appellant. The claimant is not medically qualified and therefore lacked the knowledge to respond to any concerns the Tribunal may have had on this point. It is difficult to see how she could have commented other than to suggest that the treatment she received was a matter for her GP’s professional judgment which she was not in a position to second-guess.

Judge Poynter goes on to hold at [40]-[45]

40 But medicine is a broad church. As is recognised in other areas of the law, there is a wide spectrum of reasonable medical opinion and practice. And anyone who has ever sat as a judge or disability-qualified member in the Social Entitlement Chamber will probably be able to provide examples of medical members who hold widely differing views about the issues that commonly arise in appeals. Moreover, it is not unknown for professional people to believe that their own views and practices are more universally held and followed than is in fact the case.

41 Furthermore, particularly in relation to prescribing, treatment is an art as well as a science. Or, at least, it is a matter of professional judgment that can be heavily influenced by the individual doctor’s own experience.

42 To take the current case as an example, the Tribunal’s medical member may well be correct to believe that, across the population as a whole, talking therapies are effective to improve the type of anxiety and loss of confidence that are described in paragraph 34 of the statement. But the professional experience of the claimant’s GP may be atypical. It may be that, for whatever reason, the results achieved by his patients from talking therapies in the past were disappointing and that he is therefore less inclined to refer his patients to such therapies than would otherwise be the case.

Alternatively, he may be aware of circumstances that are not known to the Tribunal, but which suggest to him that the claimant would not benefit from such therapies.

43 Finally, although I do not suggest that it is so in this case, some claimants will simply have a GP who is not very good at his or her job.

44 Assuming a normal distribution of medical excellence, a large proportion of the population will have a GP who is below average. That is not a reflection on the medical profession. It is also true by definition of most, if not all, fields of human activity. Not everyone can be above average.

45 There is therefore a real risk that drawing inferences about function from treatment will in some cases lead the Tribunal to conclude that claimants do not suffer from the loss of function they describe because they are not being correctly treated for it.

I think the “1st line” argument is pretty meaningless when viewed in the light of the general observation in the British National Formulary on the efficacy of anti depressants

“There is little to choose between the different classes of antidepressant drugs in terms of efficacy, so choice should be based on the individual patient’s requirements, including the presence of concomitant disease, existing therapy, suicide risk, and previous response to antidepressant therapy.”

Some of your counter arguments may well depend on the circumstances of your client, and I recently had a case that is a good example. The DM had argued (on the recommendation of the HCP) that my client was fit for work and that ESA Reg 35 would not apply because my client “is not on medication” and is “under the care of his GP”.

I countered with:

“I will discuss the Respondent’s position regarding Regulation 35 further, but I will at this point address the HCP’s contention (p53 of the bundle) that there is no risk at least in part because my client “is not on medication” and is “under the care of his GP”

My client has taken medication in the past I understand that medication was sertraline, but he had a seizure whilst taking it and he stopped for that reason.

Sertraline is a selective serotonin reuptake inhibitor (SSRI) and I note that the British National Formulary (BNF) recommends caution in patients with epilepsy and that the drug should be discontinued if convulsions develop

My client was frightened by the experience of having the seizure and is convinced of the causal link between taking the drug and the occurrence of the seizure.  He has made a conscious decision not to take mood altering medication for that reason

My client’s decision is arguably entirely rational, but even if this was not the case, it must be accepted that the nocebo effect is as real as the placebo effect”

The Tribunal accepted my argument and my client is now in the support group

We have found MM (our client) a very useful case to counter the line of reasoning from DM’s about the level or absence of medication, other treatments or ‘specialist’ intervention r referral etc. as a reason for refusing an award / points whether following a WCA or for PIP etc.

It has also been very helpful in applications for leave in decisions made by tribunals chaired by the same judge as in MM who persists in using a similar line of reasoning in statement of reasons when refusing other appeals! Over recent years we have made more applications for leave against tribunal decisions involving this judge than all other tribunals added together!!