Tribunal adjornment for EMP

Recently we have had a couple of appeal hearings where we are dealing with a claim for a period 12 month ago.  Last couple of hearing have resulted in the Chair requesting EMP.  What are peoples feelings on this when we have Med EV for the relevant period but Chairs asking for EMP.  This EMP will be based on customers circumstance now not 12 month ago.  If I were to attend with current MED ev they would say it was irrelevent as not for claim period and would not accept it or confirm a deterioration and say re claim now.  ANy one had similar experience recently or know a way to tackle it

We’ve got a recent case at Upper Tribunal due to just this issue - the Tribunal did not award on the basis of a new EMP report - we took it to UT as the evidence they’ve relied on was not relevant for the period of the appeal and so should not have been considered - the EMP report did not mention the date of claim and concentrated purely on how our client is now. The Tribunal did not explain how they considered this evidence in relation to the date of claim.

My opinion is that it’s hard enough for a client to remember exactly how they were a year ago and so they can’t expect someone with no previous medical knowledge of that person to give an accurate report for the relevant date of claim - it’s a complete waste of time and money.

As always, I think it rather depends on the facts. What are your client’s particular health problems?  Depending on the diagnosis it may be reasonable to assume that an assessment of a client’s condition as of now may be a fair reflection of how they were a year ago.  Remember evidence is relevant if it can relate to the date of decision.  For example, if the client has a condition which generally involves deterioration over time then an EMP now may show they are highly unlikely to be significantly better now as opposed to the date of decision.  Obviously, the opposite can also apply, if, for example an operative procedure in the interim is likely to lead to an improvement in the client’s condition

Hi all

Devil’s Advocate opinion!

If at the start of a hearing the client is asked whether their health has improved/changed since the decision and they say ‘no’ then arguably a later EMP would be considered relevant.

If a client says ‘my health/mobility/self care is much worse’ and then an EMP report is done 12 months later which shows insufficient needs to warrant an award of DLA etc then potentially this coule be a sign that the difficulties were not sufficient 12 months ago (unless other evidence is available) .

I too get frustrated when a hearing is adjourned for EMP but each case has to be considered on its individual merits.

Chaos

Hi,

I had exactly this same problem- Tribunal 12mths + after the decision date couldn’t decide the case and thought that an EMP would be helpful, despite other contemporary medical evidence. They left so shortly after the hearing, which was very late in the day, that I had no chance no argue about this. I asked for the adjournment for EMP to be set aside, on the grounds that this was well outside the 6 months period. After a lengthy delay of inactivity, the Tribunal Service finally responded, and declined to set aside. I am now waiting for another hearing date to be scheduled - this is almost 6 mths after the set aside request- I haven’t heard anything further yet. When (if!!!) the case is relisted I shall argue for this EMP report to be excluded. And the Chairman kept reminding the client in the abortive hearing not to stray from the time period in question!

Lid26

Had Tribunal heard this week which had been postponed for EMP report (15 months after the date of decision) Obviously EMP report found client could be contender for next years Olympics.

Thankfully sensible Judge (not the one who requested emp) ignored the report and kept the medical wing member straight on the time period.

One interesting point though on the EMP form; there is on the first 2 pages prompts to give the emp an idea of why the report has been requested. In this instance it was blank.

So, did the emp know they were being asked to examine with one eye looking back over? My client stated that he repeatedly told the doctor that it was for an appeal over 1 year old, but was told to ‘answer the questions’

I posted on the ‘decisions & appeals’ board a little while back on a similar theme. It does seem to me that inevitably, as the delays in dealing with/listing appeals grow, it becomes increasingly hard for clients to get a fair hearing just because of the time delays and difficulties of establishing what evidence is relevant and what is not. I’m not blaming the trbunal members for this- just the system. A case in point- I am due to rep a client next week who will have to remember how he was over 3 years ago. As he has a learning difficulty and mental health problems in addition to physical disabilities it will be well nigh impossible for him to accurately report what his needs were then.

I am waiting for an EMP report following an adjourned appeal for a 16 year old with primary systemic vasculitis. As is so often the case now, more than 12 months had elapsed since the decision under appeal (14 since the claim) and our client had undergone 6 months of chemotherapy (between claim and decision) which has improved her to some extent. I asked the tribunal judge to note the request for an EMP that the tribunal would like to know the likely effects of the treatment at that time, recovery period, etc.

I doubt very much that we will get anything other than a standard report, but at least the inclusion of that request in the adjournment notice will mean we can safely raise it at the next hearing if the EMP report is silent on that aspect of the case.