Forum Home → Discussion → Disability benefits → Thread
Meaning of medical evidence in relation to superseding a PIP award
I have a client who was awarded PIP for two years following a face to face assessment which had to be carried out at his home due to anxiety issues. He was awarded 10 points.
After a year he was sent the usual ‘review’ form, which he filled in himself, indicating difficulties with the same activities as on his original PIP form. ATOS then did a paper assessment based on the review form, the previous face to face assessment report and ‘HP medical knowledge’, and awarded only 4 points.
DWP superseded the award under reg 26(1)(a) of the Universal Credit etc (Decisions and Appeals) Regulations 2013. This allows a supersession where medical evidence has been received from a health professional.
The term ‘medical evidence’ does not appear to be defined anywhere in the regs. Is a paper assessment medical evidence? Is there any mileage in trying to argue that in the absence of a further face to face assessment or any other different primary evidence this is merely a difference of opinion so does not amount to ‘medical evidence’?
the HCP report is medical evidence; get your MR in asap with a view to appealing if necessary…..
the HCP report is medical evidence; get your MR in asap with a view to appealing if necessary…..
Tribunal is next week.
I would agree that an HCP report is normally medical evidence, but then they usually contain at least some evidence of a medical nature. All the appeals I’ve had on review cases have had a further face to face assessment, which this one has not.
The HCP report in this case contains nothing but a different opinion, which lead me to look for a definition of medical evidence in the regs, but there doesn’t seem to be one.
Alternatively, is there any case law about reports being so inadequate that they don’t amount to medical evidence?
I can see where you’re coming from and it’s worth trying (as a starting point) to argue that such a report is merely assertion, or commentary on the claimant’s evidence, rather than ‘medical evidence’ in itself. If that is accepted, the ground of ‘receipt of medical evidence’ would not be made out and it would be necessary to show a change of circumstances.
In NH Judge Williams substituted a decision that there were no grounds to supersede an award of ESA where the report was ‘seriously deficient’. Your case may be stronger, as it doesn’t even involve an examination of the claimant at all.
i’d ask for the previous reports from his previous successful claim to be included in the docs, if they aren’t already (which i would assume they’re not)
From s80(3) of the WRA 2012, regulations “must” provide, except in prescribed circs, for PIP entitlement to be determined “on the basis of assessments (or repeated assessments) of the person”. Is therefore a problem with reg 9 of the PIP regs, which seems to turn this “must” into a “may”?
Anyway, this previous thread might be relevant (re paper-based assessments, and FTT’s power to order a face-to-face medical as per CPIP/3544/2015):
http://www.rightsnet.org.uk/forums/viewthread/8693/
the HCP report is medical evidence; get your MR in asap with a view to appealing if necessary…..
With a view to attempting to have the DWP agree to a decision being Official Error, I challenged them that the evidence before them (HCP report) was medical evidence.
They countered that it is not medical evidence but simply an opinion.
Seems that the DWP want it both ways whenever it suits them.
Do you have fact that such a report is indeed medical evidence please?
I think it’s an argument with merit on a number of fronts:
1) The further opinion won’t have new clinical findings so it is nothing but an opinion. The question then is whether it’s a medical opinion and whether that suggests anything has changed. For it to jump the first part of these hurdles I would submit it needs to bring something more to its conclusions than the sort of assessment of the existing evidence which could be made by a lay person. That’s not as simple as they think it is. I have repeatedly won DLA and AA cases arguing that grounds for review simply weren’t made out on this exact argument. No need to get into the detail. Usually takes 10 to 15 minutes to get sorted and the only ones that go on longer are where the case has been given a double slot and the tribunal have no paper hearings to be getting on with if we win quickly 😊
A consultants report which repeats a history told to them by the claimant and then carries on with “I would expect…” needs to be based on clinical findings they have themselves observed or recorded to justify their acceptance of the claimants history amongst other things. That could reasonably be described as a medical report whether I agree with what they “would expect” or not. An opinion based on a weighting of evidence is not a medical opinion in and of itself because it’s been expressed by a medically qualified professional. It will depend on whether any medical expertise was explicitly brought to bear on the decision making process.
2) So, second half of this is that 6 points go AWOL based on what exactly? What has changed? What is the evidence for it? Is it medical evidence (can’t see it myself) or is it just, as surmised, a different opinion?
I wouldn’t get bogged down in whether a specific document by a specific medical professional would automatically be deemed to be “medical evidence”. It’s long been the case that a different opinion is not necessarily evidence of a change of circumstance. Was it R(S) 6/78 or R(S)4/86 which reinforced this? One of the two if not both as I recall.
Hi,
I agree with Mike’s points insofar as they relate to regulation 26(1)(a) of the Universal Credit etc. (Decisions and Appeals) Regulations 2013 (that allows a supersession where medical evidence has been received from a health professional).
And in this client’s case the DWP says that it has superseded the PIP award under regulation 26(1)(a).
So it can be argued at the tribunal that a new medical opinion is not a change in circumstances.
But couldn’t the DWP cite instead Regulation 11 of the PIP Regs 2013? -
“Re-determination of ability to carry out activities
11. Where it has been determined that C has limited ability or severely limited ability to carry out either or both daily living activities or mobility activities, the Secretary of State may, for any reason and at any time, determine afresh in accordance with regulation 4 whether C continues to have such limited ability or severely limited ability.”
This regulation means that PIP, unlike DLA, can be reviewed and superseded at any time and for any reason and that there is no requirement to identify a change in circumstances.
When awarding PIP for two or more years this is the power the DWP cite as the reason it can say in decision letters that it will review the award from 12 months prior to the award ending.
Thanks for the input, in particular Mr Finch and his point about NH. Having read that decision and checked the ESA regs it’s interesting that ‘medical evidence’ is defined for ESA, and receipt of medical evidence is a ground for superseding an ESA award, but despite that Judge Williams still rejected the ‘medical evidence’.
My tribunal today decided to hear evidence and awarded the same points as before.