Forum Home → Discussion → Decision making and appeals → Thread
FTT re PIP /acknowledgment of illness but no points
As part od Deciison notice it is acknolwedged that client has illness - can anyone point me in a direction AS REGARDS CASE LAW AS REGARDS THE (sorry) way tribunal should approach this
Thanks in advance
Is this part of the Xmas quiz?
When you say decision notice do you mean the DWP decision or a subsequent Tribunal decision?
Either way it doesn’t seem that unusual to me - they are just acknowledging that claimant has health problems but (I assume) that the impact of these problems on the activities covered in the ESA/PIP descriptors is not sufficient for them to score enough points.
But when coupled with supportive medical evidence this would seem to be somewhat contradictory (and nil points were awarded)
You can have very serious health problems and still score 0 points. The question isn’t what your health problems are, but how they interact with the points system.
The standard decision notice template invites the Tribunal to acknowledge that the claimant has particular conditions - so for instance a decision notice might read “Whilst the Tribunal accepts that Mr Smith has osteoarthritis of the knee, the nature and extent of the resulting limitations are insufficient to score the required number of points and as a result Mr Smith does not qualify for either component of PIP”. There’s nothing inherently wrong with that - refusing ESA/PIP is not inconsistent with accepting that health problems exist.
Everything said so far is spot on.
Having a health problem isn’t enough.
Neither is not being able to do the activities.
You have to have a problem that fits in with the prescribed descriptors for the activities - hence if it’s not on the list or doesn’t meet the regs then you cannot score the points.
Eligibility is via reg 4 the Assessment of Ability to Carry Out Activities.
WRA 78 Daily living component - A person is entitled to the daily living component at the standard/enhanced rate if the person’s ability to carry out daily living activities is limited by the person’s physical or mental condition…
WRA 79 Mobility component - A person is entitled to the mobility component at the standard/enhanced rate if the person’s ability to carry out mobility activities is limited by the person’s physical or mental condition…
This bloke must have said he couldn’t do stuff and had a medical condition. It might be ESA and DLA but the point is the same - a medical condition or two is not enough on it’s own.
http://www.dailymail.co.uk/news/article-5193815/Benefits-cheat-64-filmed-working-SCAFFOLDER.html
Supportive medical evidence! The phrase makes me wince. Supportive of what? The diagnosis? The prognosis? The symptoms? None of that gets you ESA or PIP. Describing functional ability in sufficient detail? Rarely. Repeating what the claimant has told them? Usually indicates they believe the claimant but doesn’t take you too far down the road as it will depend entirely on the individual case.
i’ve got a long term medical condition but wouldn’t qualify for ESA or PIP on any view….as the condition (given it is under control with medication) has no particular impact on any relevant function.
One of the issues we have to address sooner or later is the social model of disability. Government basically reinvented DLA as PIP with much talk of the social model yet the process is wholly driven by the medical model. Ask most WRAs/WROs and they will insist they believe in the social model. In reality most of us perpetuate the medical model by our insistence on the primacy of medical evidence despite there being evidence that around 52% of disability benefit claims succeed without it. Of the 48% which succeed with some evidence it’s not clear that it’s medical evidence or that it is decisive.
Day after day I can hear or come across colleagues advising people on how their claim isn’t going to succeed unless they have the support of their GP, a letter from a consultant and so on and yet, largely, it appears to simply not be true. For such an evidence based profession this, to me, is a problem. Of course there are cases where it will be critical. I had one such example yesterday when coming across a Psych. who picked up the phone and started and ended an MR by ripping apart the HCP report line by line for example. Generally however I think over reliance on medical evidence, often accompanied by bewilderment when it isn’t forthcoming; doesn’t say what you wanted; doesn’t achieve the desired end etc. has became an issue.
A conversation involving listening a claimant and the specific barriers they face as compared to someone else with their condition/impairment is often more than enough. In recent years I’ve found that the appeals I’ve won the quickest have been the ones with the most detail from the claimant and not necessarily the ones with the most detailed reports.
think you’re right about that, Mike, especially with mental illness/brain injury
I’ve two clients at the moment with subtle brain injury (one with a pre existing congenital problem that also can affect the brain) and trying to get the DWP, in particular HCP’s, to “get it” does require medical evidence and even then…...and the man with pre existing had been on the sick forever before his relevant accident, because of the congenital condition. in particular, they don’t grasp the short term memory problems - as a man said yesterday, i can remember things i’ve always known (e.g., how to drive) but can’t learn new things, they don’t stick. which is a major barrier when you also need to retrain, but can’t because you can’t learn because you can’t remember.
The problem is exacerbated by the process.
The HCP is in fact the DM as they follow the former in interpreting law and implementing a legal decision. I presume this is for contractual reasons. (and possibly a toe in the water for a future offshoring outsourcing opportunity?)
Therefore current HM Gov/DWP logic seems to be that I should see a doctor about selling my house and see a conveyancer about my foot.
I’m sure there’s a better analogy but it would probably involve cars or something…...
The problem is exacerbated by the process.
The HCP is in fact the DM as they follow the former in interpreting law and implementing a legal decision. I presume this is for contractual reasons. (and possibly a toe in the water for a future offshoring outsourcing opportunity?)
Therefore current HM Gov/DWP logic seems to be that I should see a doctor about selling my house and see a conveyancer about my foot.
I’m sure there’s a better analogy but it would probably involve cars or something…...
I agree, but we also exacerbate and endorse the process
Everything said so far is spot on.
Having a health problem isn’t enough.
Neither is not being able to do the activities.
You have to have a problem that fits in with the prescribed descriptors for the activities - hence if it’s not on the list or doesn’t meet the regs then you cannot score the points.
At least for PIP it’s a bit more complicated by reg 4(2A) though isn’t it? It’s appallingly drafted but has a deeming effect of some sort; that claimants who cannot reliably complete the activity should be deemed to score something.
And if no points are scored
The problem is exacerbated by the process.
The HCP is in fact the DM as they follow the former in interpreting law and implementing a legal decision. I presume this is for contractual reasons. (and possibly a toe in the water for a future offshoring outsourcing opportunity?)
Therefore current HM Gov/DWP logic seems to be that I should see a doctor about selling my house and see a conveyancer about my foot.
I’m sure there’s a better analogy but it would probably involve cars or something…...
I agree, but we also exacerbate and endorse the process
I’d say passively endorse, rather than enthusiastically endorse.
There are many things I disagree with but comply for the sake of a quiet life.
Everything said so far is spot on.
Having a health problem isn’t enough.
Neither is not being able to do the activities.
You have to have a problem that fits in with the prescribed descriptors for the activities - hence if it’s not on the list or doesn’t meet the regs then you cannot score the points.
At least for PIP it’s a bit more complicated by reg 4(2A) though isn’t it? It’s appallingly drafted but has a deeming effect of some sort; that claimants who cannot reliably complete the activity should be deemed to score something.
The demeaning effect?
Point taken but the issue is still that there has to be a problem that fits within (and not outside of) the prescribed activities and descriptors.