Disclosure of medical evidence and associated documents.

Well known at this point that we cannot pick and choose what evidence we submit to tribunals once it’s in our possession. R(I)36/56 et al.

I recall a decision which made it equally clear that you could not withhold a copy of your request for said evidence for obvious reasons. Need a copy to cite to staff but cannot for the life of me find the reference.

All clues welcome.

Nobody?

Sad face.

I don’t know if I have imagined this but I have some memory ish thing going on. False or otherwise there was something in Marc Perlic’s case law directory thingy (upcountry).

Anyway, in the absence of whatever see CPAG thingy from 2007 to share with your colleagues.

Not sure if it will change the sad face to a smirk…..............

‘EVIDENCE
The guidance stresses the importance of forwarding any additional evidence to the appeal service and to the respondent as soon as possible, pointing out that tribunals can adjourn if they feel they need more time to consider evidence that is only provided on the day. It also states that where evidence consists of a written report in reply to a representative’s letter, it is good practice for the letter to be included as ‘this will assist the tribunal in gauging whether the content of the report reflects the independent judgement of its author or simply relays information or opinion of others’.

This point is clearly aimed at the vexed question of medical evidence. Representatives remain under no legal obligation to forward instructing letters to doctors along with the reply. Indeed there are many instances when it will not be possible, for example where the client obtained the letter themselves, or the evidence has been obtained by another person for a different purpose - such as a personal injury medical report or community care assessment. Tribunals are under a duty to weigh all the evidence presented and have to give reasons for the weight they attach to such evidence’.

https://cpag.org.uk/welfare-rights/resources/article/guide-appeal-representatives

Thanks Andy. My recall is that the decision in question or Presidential edict etc. was pst 2007. Just done a Perlic trawl and it was a good reminder of much great case law but sadly not this. Killing me now. I know I have seen this. It’s the sort of thing Commissioner Rice would write but much more recent.

Mebbe a search for citations on Baili?

You may find a reference in the Jacobs guidebook if you have a copy (I don’t).

But iirc, the decision you’re referring to didn’t go so far as making it an actual requirement. And I don’t see how it could - absent the letter that instructed a report, a tribunal might be entitled to give less weight to that evidence, but isn’t entitled to disregard it entirely. If it’s a case of needing to site to staff, isn’t your own explanation of why this is a good idea something that will achieve the same end - and possibly achieve it better, too? My own practise is to give no indication that the WCA/PIP involves a points based assessment, to the extent that where I provide a copy of the relevant schedule to a medical professional I remove the points associated with the descriptors - I’m sure I’m not alone in that. You know why we do this stuff Mike - and I’m sure that you can explain it to colleagues as well as any judge in the UT.

I do have a copy of the Jacobs book and I couldn’t find any reference to it there.

I tend to be pretty stubborn and not particularly accepting of authority - i.e. I’m one of the staff members who would have liked that caselaw reference - in some cases - but not in this one, I think. Like past caring points out the logic behind it is pretty self-evident.

I have had a tribunal case where I’d forgotten to include my evidence request with the rest of the papers - from the SOR I could see that the judge made an adverse inference from that, and assumed I had asked leading questions (I hadn’t - the doctor in question had just elected to be a bit ‘extra helpful’ in his response). The judge hadn’t made us aware of this inference at the hearing and there were other grounds for appeal too, but sadly our client didn’t want to take it any further.

At least for me that (anecdotal) lesson was plenty.

Thanks all. I don’t think it was a requirement so much as a thorough examination of all the issues surrounding this area. Heavily linked in to the duty to co-operate in the Tribunal Procedure Rules. I believe it took the line that it was to be expected rather than required and that in its absence then it was legitimately open to a tribunal to draw such inference as they saw fit when taking what they had in the round.

I will crack what this was if it kills me. It’s bugging me now.