MR tactics - HCP reports

I would be interested to know how reps approach an MR where an assessment has taken place in a PIP case, ESA case or in a UC case where the claimant is pitching for LCW/LCWRA.  Do you ask to see the **85 report and rebut it line by line, or would you regard that as a waste of time: is it more efficient to construct your own MR from the ground up, addressing the relevant activities/descriptors, without waiting to see the report?

Would it be fair to say that, at the MR stage, DWP is unlikely to go against the report irrespective of what the claimant says?  If an MR is successful it won’t be because there is anything wrong with the report, it will simply be because the case has been well put?  And a Tribunal might refer briefly to the report to make its decision UT judge-proof, but otherwise will attach little weight to it and will pay much more attention to (i) evidence from experts in the relevant field, (ii) evidence from people who know the claimant well and (iii) its own observations?

Alternatively, because DWP will be following the report closely, is it more efficient to attack the report at the MR stage and flag up anything obviously wrong with it, which means delaying the MR in order to obtain a copy?

I don’t get involved in PIP/ESA/LCWRA appeals very often, but in my limited experience I’ve found that DWP officers conducting MRs will not shift from the recommendations in the report, while Tribunals will regard it as the least persuasive document in the bundle.  So it’s a bit of a waste of time to build your MR around the report.

All opinions gratefully received - thanks.

There are different schools of thought but my view is that delaying for the report or going through it ‘line by line’ is a waste of time.

I did, when MR was first introduced, give it a proper go for a while and set out mini-submissions but after a dozen or so MRNs which were just copy-pastes of the original decision, the utility of it just didn’t seem to be there. I will usually just set out briefly which areas of the decision the client has an issue with and perhaps write a line or two on what we say the position is.

I have found that the DWP do not respond to criticism of the report - it will just be suggested that if you have some issue with the report you should make a complaint - and it will be accepted as accurate. They usually do not respond to argument (“the assessor recommended that descriptor x applies based on their findings, but in fact those findings should have resulted in descriptor y because of such and such case”).

What the DWP do respond to is new evidence. If the GP will say that the claimant can’t walk 50 metres, this will sometimes be effective in displacing a HCP’s recommendations (although often only after seeking ‘further advice’ from the assessment provider).

I would say that the situation with appeals is rather different to how it was a couple of years ago (for PIP at least) in that the DMs who prepare the bundles are now being encouraged to review the file from the ground up with a view to making concessions; so it can be worthwhile putting forward more thoroughly in the appeal form what the issues are with the decision and what award your client is looking for.

Mainly agree with Elliott regarding the provision of additional medical evidence rather than refuting what was recorded being the reason for review at MR, although I still also ask the client to request a copy of the assessment report as that is normally received before client manages to obtain the GP records. During Covid times I actually had a very high success rate at MR decisions being changed but unfortunately they have now returned to just the occasional overturn at MR.

Always a good thing if you can also highlight, one or two, inconsistencies in the report to suggest it is not reliable - usually things like coped well, but elsewhere will refer to crying during the assessment. Also usually able to pick out that the AHP is assessing based on what is medically required and not what is reasonably required, they often point to justification for not accepting an activity based on lack of MEDS or only being treated by GP.

Wow, thanks everyone.  This is great - really appreciate your replies.

Where you do have a copy of the medical report, I found that it could be helpful in submissions to highlight statements from the HCP that showed consistency with the client’s account of their difficulties and how they are affected by health conditions, rather than arguing the toss over erroneous conclusions then extrapolated from those statements by the HCP.

From the other side - 09 January 2023 10:12 AM

Mainly agree with Elliott regarding the provision of additional medical evidence rather than refuting what was recorded being the reason for review at MR, although I still also ask the client to request a copy of the assessment report as that is normally received before client manages to obtain the GP records. During Covid times I actually had a very high success rate at MR decisions being changed but unfortunately they have now returned to just the occasional overturn at MR.

You are not alone in MRs being less successful, at least for PIP - while MR overturns became much more frequent in 20/21, they have gone back to previous levels - about 75% upheld - see graph at https://www.gov.uk/government/statistics/personal-independence-payment-statistics-to-october-2022/personal-independence-payment-official-statistics-to-october-2022#mandatory-reconsiderations-mrs

It’s not so bad for ESA WCAs (about 50% overturn) - see https://www.gov.uk/government/statistics/esa-outcomes-of-work-capability-assessments-including-mandatory-reconsiderations-and-appeals-december-2022/esa-work-capability-assessments-mandatory-reconsiderations-and-appeals-december-2022#esa-wca-mandatory-reconsiderations-outcomes

And of course DWP don’t produce stats for UC unfortunately

It’s rarely the case nowadays that we have some magic bullet piece of evidence which will cause revision wholly in our favour at MR. I am happy to lay out the case in full at MR but only on the basis that it’s essentially what I’ll be writing at the appeal stage and ensuring appellants understand that statistically the outcome of an MR is essentially random. How much time you want to spend on a process where the outcome is essentially random is very much a personal decision.

Outside of that I steer appellants and myself from making the HCP report the centre of any challenge. I strongly believe that many of the problems we encounter can be wholly bypassed by this approach. Claimants believe the assessment and the report are critical because everything and everybody tells them that. It is the focus of their approach and their anxiety and we do them a massive disservice buying into that narrative. It only ceases to be the case if we make it so. For me that means I focus on ensuring the original claim is accurate, detailed and focused on irrefutable anecdotal evidence. Where I wasn’t involved with the claim pack I’ve often used the MR to fix it i.e. going back and saying “the claimant or their helper said this because they thought they were being asked this. However, once they understood that what they were really being asked was this then their answer would have been this.”

Claimants and reps. will have little difficulty finding at least 30 areas of dispute in a HCP report and more often 50+. However, why bother? The way I put this to claimants is that being able to show the weakness in someone else’s evidence does not get you benefit if your own evidence is poor to non-existent. The focus should be on the strengths of your anecdotal evidence rather than the weaknesses of theirs. This is very much the approach of most tribunals in my experience. There is zero need to expand along the lines of the reports being generally of poor quality. Tribunals know this - yes there are always exceptions but they are fewer and fewer - and you are kicking at an open door. Kick too hard and it will rebound back in your face and give a tribunal member something largely irrelevant to focus on which will wholly detract from the strength of your own evidence. This is why tribunals rarely start with “let’s look at page 86 of the HCP report” and more likely proceed along the lines of “give us anecdotal evidence of your typical day”.

I do of course very briefly address the HCP report lest anyone thinks I’m being evasive or disingenuous. I do this from a slightly more extreme position that that described by @roecab above i.e. I look for 2 or 3 (never more than 3) issues where the HCP report is demonstrably wrong to the extent they make themselves look at best distracted and careless and, more likely, simply incompetent. I’ve cited these examples many times before but

- “the claimant made good eye contact” when the claimant had zero perception of light and was merely being polite in facing where the voice came from.
- “the claimant was male” when they were very obviously female.
- “the claimant worked and regularly socially engaged throughout the working day” when they’d actually explicitly stated in the claim pack the date they had ceased work because they could no longer socially engage and detailed the several RAs they and their employer had tried before reaching that outcome.

I then insert a bland one liner about the above examples irredeemably damaging the credibility of the whole report and then move on to what I want them to actually look at.

I’ve used medical evidence maybe twice in the past decade and take a general approach that it’s useful where a claimant lacks insight into their own condition but otherwise it rarely makes the case better than detailed anecdotal evidence. Claimants and often reps obsess on medical evidence and a lot of the anxiety around it is again avoidable. I’ve had claimants distressed that their GP asks them to pay for a letter and heard WROs tell claimants they can’t assist unless they have GP support. I can usually kill the obsession by asking whether they’ve ever cooked for their GP; toileted in front of them; gone shopping with them or read them a bedtime story. I’ll then jokingly point out that the only way their GP could add as much detail as the claimant themselves is if the claimant had had an inappropriate relationship with their GP. Same often applies to consults. Yes of course a medical professional can add credibility even if their evidence itself is nothing more than repeating what a claimant told them because they believe it to be true but if you get detailed anecdotal evidence out of claimants then the need for medical evidence tends to evaporate anyway. Do I need a consultant to confirm that my claimant has been sectioned twice if my claimant can provide a funny, heartbreaking anecdote of how they successfully broke free of the ambulance crew the first time they were sectioned and got 100 yards down the road before being rugby tackled by their own GP?

We all have our own approaches of course but based on my experience over the past decade I find an approach which sidelines the HCP report at the earliest possible stage has produced the most successful outcomes of my career.

Thanks again everybody for all these really helpful replies

Pretty much what everybody else has said. Claimants are often exercised by the contents of the reports because they see these to be inaccurate or often downright lies, but as has often been said on here, demolishing a report achieves only that - it doesn’t establish the claimant actually meets the qualifying conditions for the benefit concerned, only that the report is rubbish. The DWP isn’t going to budge on the report and with the vast majority of tribunals, you’re pushing at an open door when it comes to criticism of the report. So why bother? And to the extent that unless I do happen to have some fantastic piece of evidence (which is rare, because our first contact with clients will almost always be at MR stage or after) the MR is simply a hoop to jump through - I have no expectation of getting the decision changed at that stage, so it’s often I’ll do the the minimum that is required to lodge a valid MR.

I can think of only two appeals in the last 3 years where I’ve given more than passing mention to the HCP report in my subs to a tribunal. One where the claimant had made a complaint about the way a face to face consultation had been conducted and the standard of the resulting ESA85 report; that complaint was upheld by the assessment provider and the report found inadequate and inaccurate - but the DWP maintained the supersession decision that was based on that report even though it had itself included full details of the complaint and outcome in its response to the appeal. The other a PIP assessment where the claimant was, amongst other things, clear to the HCP of her need for the use of a dosette box, of her friend visiting weekly to help ensure that the correct tablets were put in the right days and of the fact that even with this assistance she still forgot to take her meds on 2-3 days each week (i.e. this stuff was actually there in black and white) - but by the time the HCP came to choose a descriptor the claimant was reported as having stated that she used a dosette box “only for convenience.”. There were a number of other such wilful distortions. In that particular case, also a supersession but on a PIP renewal, the claimant had come to us very late in the day, so there really wasn’t much evidence other than what was in the consultation report. Fortunately, the claimant’s statements were really good and in respect of a number of activities she’d expressly stated her needs had diminished - so it was an easy argument to make that her statements ought to be assessed as being the more accurate when compared to those of the HCP.

Thanks Peter for starting this thread - I’ve personally found it very helpful.

Like others, I try to focus my clients on what the answer should have been rather than on the reasons why the DWP got it wrong. My approach on this has certainly been influenced by others on here - I remember some time ago being quite struck by Mike’s attitude to medical evidence because it went against my initial instinct. But of course it’s absolutely correct that a doctor can give a name to your condition, but probably isn’t best placed to say what effect it has on your day to day experience. So this approach works. I think I will steal/borrow the line about having an inappropriate relationship with your GP.

I did some PIP appeal submissions recently where the client’s mum was having to go and help the client pretty much every day with things like shopping and cooking, and managing money and medication. I explained to them that her account of the things she does for her daughter should be central to her case, whereas there is limited mileage in arguing that the HCP had mistaken being able to talk on the phone during the assessment with being able to mix freely with other people. Although at the same time, I felt it was worth pointing out that the wording on the HCP’s report was literally identical for preparing food and getting dressed - because it undermined the report, and because it amused me.

I probably horrify people with the amount of anecdotal evidence I submit but over the past decade or so since I changed tack I have found that the extra time spent doing that rather than writing to people in the remote hope that a magic bullet will appear or because it’s what I was trained to do has always been time well spent. I absolutely agree that using anecdotal evidence minus medical evidence can feel counter intuitive right up until you do it. Worst case scenario is that I spend 5 to 10 minutes in an appeal hearing where the appellant confirms my submission as 100% accurate and wins. I kinda miss the days of agonising 90 minute appeals but not that much.

I do wonder whether we are clear enough re: anecdotal evidence. I try to distinguish between assertion and anecdotal evidence for claimants and when training front line staff as follows:

Assertion is writing in a claim pack “I fall about 3 times a week. I last fell 2 days ago in the kitchen and hurt my knee.”

GP might write “The claimant tells me they fall regularly. The cause of this is currently unclear.”

There is nothing intrinsically wrong with the above but they could have been written by me or anyone and it is generic rather than bringing a specific individual to life as a living, breathing entity.

Anecdote is writing “I fall about 3 times a week. I last fell 2 days ago in the kitchen. I was holding onto the worktop with my left hand whilst filling a cup of water with my right. My left knee gave way without any warning and I fell to the floor. I fell straight down and slightly forwards into the worktop rather than backwards and on my way down I cracked my head on the edge of the worktop and cut the side of my head badly enough to be seen by my wife later as having bled “all over” the kitchen tiles. I dropped the glass of water. The glass didn’t smash but the water went all over me; the worktop and the floor. It was pure luck that the glass did not smash and cause further injury. When I fell there was no-one else present and I struggled to get up because I was disoriented; bleeding; wet and in pain from both the knee which had given way and my other knee which had hit the floor very hard when I suddenly went down. The twist as I went down jarred my lumbar spine and I subsequently noted that I had also bruised the side of my foot. Whilst my GP and I have not yet identified a cause for such falls it is acknowledged that they take place and I have been able to show my GP the cuts and bruises.”

It is odd how as a profession we financially reward those who do form filling less than specialist advisers when in most cases quality form filling can just make any subsequent HCP report look laughable. 

My fave ever anecdotal evidence was a retinal dystrophy case where the claim pack made an assertion about needing help from others to select clothes and gave a brief example of being laughed at by their kids for selecting shoes which didn’t match. HCP disregarded this just like they wrote “uses a magnifier” and then gave zero for using an aid etc. and I came in post MR.

When interviewing the client their sibling told me that the client had once collected their children from school and was overjoyed that despite increasingly losing their vision one of the other male parents had come over to talk for ages. Most parents ignored them because of course when they smiled, waved or otherwise acknowledged them the client couldn’t actually see any of that and respond accordingly so the other parents thought they were rude, stand offish etc. Take your pick.

Imagine the devastation of the client when they got home and their sibling pointed out that they had gone out minus bra in a wholly see through blouse.

I wrote that up in graphic detail. No medical evidence needed about visual acuity; recent tests; GPs thoughts etc. Only ever one outcome.

What Mike said.

And always, but always remember as a rep that it is entirely legitimate to give evidence of your own direct experience.

My favourite was a DLA appeal for a client with severe Meniere’s disease. Severe to the extent that she would not only lose balance and fall, but lose consciousness, perhaps for 20 minutes, in the process. On one occasion, I opened up the office early to see her as she was generally better early in the day. At the end of the appointment she stood up to leave and collapsed on top of me. She was about 6’6” and extremely heavily built. I was still pinned to the floor underneath her when the first of my colleagues arrived and helped me to get out and get her into a chair. My recounting of this and other incidents didn’t go down well with either the PO or the two wing members, but we had a good judge and I knew he was onside.

My first ever VI client many years back had considerable difficulty in persuading her own orthodox Jewish family she had a sight issue let alone the DWP. Back in those days I did the old medical evidence thing and relied on anecdotal stuff coming out on the day. They were the vaguest people I had ever met and could not give me anything meaningful in advance.

Tribunals at the time were held in Bridge House on Bridge Street just up from the current Civil Justice Centre in Manchester. There were two lifts and one was perpetually dressed in the style of a padded cell for alleged maintenance purposes. It was working but somewhat offputting.

I didn’t expect the entire family to turn up for the hearing and so was busy herding small children and their father into one lift when I realised she had disappeared into the padded cell. Set a clerk off in hot pursuit as she’d no idea which floor to get off at. Advised the family to get off on the 2nd floor and wait for me there. I waited on the ground floor. Lift opened on the 5th floor and a completely different clerk was about to step in and help the flailing sight impaired female when she fainted inside the lift. Bless him, he tried to pull her out and, when he realised he couldn’t, he effectively booted her back in; leapt out of the padded cell and off she went. Took about 10 minutes before we got matters under control and got the lift to the same floor we were. By that time she had come round of her own accord; had absolutely no idea what had happened or where she was but was being aided by a kindly gentleman who understood very quickly that she was vague, confused and sight-impaired.

No prizes for guessing that said kindly old gent was in fact our tribunal chair for the day and the decision in her favour was given in the waiting room without our setting foot in the tribunal room. Said chair, well known for giving decisions in the waiting area, let slip that on previewing the case that morning both his colleagues had inevitably asserted that the claim was doomed.

I just wanted to add to this (though given that they’re so easily discredited, I don’t know that judges will attach much weight to it): I sometimes refer to parts of HCP reports as evidence in support of my clients’ claims.

In the midst of all the nonsense they write, I do find that they frequently accidentally include statements that you can either twist to interpret a bit differently or are sometimes outright supportive.

In the submission I’m writing today, for example: On the last line of their notes re PIP mobility 1, after recommending (a) - 0 points, the HCP notes “...FH showing not going out due to leg pain and depression”.
Ah OK, so presumably you meant to recommend d, e or f then, didn’t you? Or maybe you meant to recommend points under physical mobility issues, due to the leg pain?

My logic would be that as contradictive evidence you end up with: evidence A minus evidence B (hcp report) = 1 - 1 = 0 (or more if your evidence carries more weight etc.)
Whereas, using it as supportive evidence, you end up with a positive relationship = 1 + 1 = 2 (or more likely: 1 + 0.1 = 1.1)

I think it fits with the stats that show how many appeals are won on a basis of ‘no new evidence’ - just a different/more accurate consideration of the existing.

That is for appeals anyway - using this approach at MR has made ZERO difference. DWP deals with contradictions in their own evidence by ignoring it.