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Case Law to undermine HCP “inaccurate” reporting.

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The CASA
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At tribunals I rep at, judges often ask, “Why would a HCP put something in the report, which was not said by the claimant?”  or “why would the HCP say the claimant walked easily to the assessment room?”. When I suggest it’s because they are paid to do such or the thousands of claimants and witnesses who contradict HCPs cannot all be wrong? Usually, the judge reprimands me. Therefore, it would be helpful to have a piece of case law, where the UT has concurred with my suggestions. Can anybody help. Please?

     
Uphill Struggle
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I don’t necessarily think in those circumstances you want to resort to quoting Commissioners decisions for what is essentially a factual issue.

I would be suggesting any one of the following:

1. The HCP misheard or misunderstood the appellant and it’s reflected in their reasoning.

2. The assessments by their very nature are time-limited and will only provide a snapshot of a particular day.

3. HCP’s are under increasing pressure to conduct these assessments, it’s entirely possible such pressures affect the ability to conduct these assessments to a high standard.

4. Depending on other evidence, I would be suggesting to the tribunal that there is a preponderance of consistent, credible evidence in keeping with the appellant’s account of their stated restrictions or limitations (referencing any reports, tests, medication or specialist involvement).

Look, tribunals are well aware of the shoddy nature of HCP reports and the murky practices that go on. What they don’t want is anecdotal evidence or an outright suggestion of lies or corruption with no foundation.

It’s no wonder the judge rebukes you, we’ve all fallen into that trap at one stage, but where they do it repeatedly, you need to try a different approach.

Hope this helps.

     
ClairemHodgson
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What US said.

NOT the way to undermine a HCP report at all - more likely to rebound on your client, in fact.

better to have a witness - if someone was with your client and watched him/her get along the corridor (family member or support worker or whatever….) plus the medical records and the like….

     
Benny Fitzpatrick
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I see a lot of clients whose only ground for appeal is “the HCP report is all lies”. I generally point out that an award is not gained by attacking the decision alone, but by providing convincing evidence that one actually meets the legal criteria for an award. (It always amazes me how many clients at this point reveal that they are totally unaware of the criteria, and have never even considered whether they meet them.) I totally agree that Tribunals are usually well aware of the shortcomings of HCP reports and will place only a limited amount of value on them, where there is credible alternative evidence available.

In addition, I often point out to clients that it is in their interest to keep the panel “on our side”, and that a confrontational attitude (e.g: making unfounded accusations of dishonesty) is unlikely to play out in our favour. I have occasionally warned clients that if they use the “L-word”, I will withdraw from the hearing forthwith. Thankfully I have never had to make good on this threat.

     
Jeremy Barker
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The CASA - 04 August 2018 04:56 AM

At tribunals I rep at, judges often ask, “Why would a HCP put something in the report, which was not said by the claimant?”  or “why would the HCP say the claimant walked easily to the assessment room?”. When I suggest it’s because they are paid to do such or the thousands of claimants and witnesses who contradict HCPs cannot all be wrong? Usually, the judge reprimands me. Therefore, it would be helpful to have a piece of case law, where the UT has concurred with my suggestions. Can anybody help. Please?

That’s completely the wrong approach. Claiming that the HCP is paid to make inaccurate reports is perilously close to alleging fraud and if you were a lawyer it would be professional misconduct to do that without having compelling (preferably documentary) evidence.

You need to remember that the primary point of the tribunal hearing is to determine which descriptors apply to the claim. While that may involve showing that some points in the HCP report are inaccurate that’s best done by producing evidence that shows something different. For example, if the HCP report said that the Claimant walked 75 metres from the car park to the assessment centre it helps to show that the person who took them there dropped them off right out side the door.

     
BC Welfare Rights
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The thing is though…

Some of the HCP reports I see are more than shoddy, they are deliberately deceptive. Just one example, I attended an assessment with someone with ME/CFS. I practically had to carry her into the assessment room, she could barely walk and was slumped in the chair unable to hold her head up due to muscle pain in her neck, unable to raise her arms from her side due to pain. She explains it all at length, provides medical evidence of condition and letters from specialists and GP describing quite precisely her walking limitations and the other effects of post-exertional malaise.

Gets zero points, obtains HCP report.

PA4 report states: ‘walked into assessment room at normal pace with normal gait…all upper body movements appeared fluid and pain free…able to rise from chair unaided and without apparent difficulty…no sign of muscle wastage or evidence of pain…able to cope easily with assessment’. And so on, untruth after untruth.

She asks for the CCTV footage of her going into the assessment room, it is ‘unfortunately not available’. Complains to HCPC, its not interested. Complains to DWP, batted off to Atos. Complains to Atos, ‘not upheld’. That nurse, who may well be a neo-Nazi with her own agenda for all we know, carries on writing report after equally despicable report many of which turn up on my desk as appeals against loss of mobility cars, loss of independence, loss of ability to keep warm… One of them loses so much weight he nearly dies and ends up in hospital severely dehydrated trying to get out to do his shopping. We go on making complaints, nothing happens. There is no accountability anywhere.

It is hardly any wonder that given the chance to look someone who matters (the tribunal) in the eye and say: ‘that report is lies, the HCP is a liar, I have been denied essential benefits because a so-called professional wrote plain, bare-faced lies about me’ that they are desperate for the chance to validate their experience, desperate for someone to listen. And then they get us saying, no don’t do that, it won’t help you…

It makes me want to scream just watching it. How it feels to be on the end of it I can only guess.

     
Uphill Struggle
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Billy Durrant - 07 August 2018 12:48 PM

We go on making complaints, nothing happens. There is no accountability anywhere.

It is hardly any wonder that given the chance to look someone who matters (the tribunal) in the eye and say: ‘that report is lies, the HCP is a liar, I have been denied essential benefits because a so-called professional wrote plain, bare-faced lies about me’ that they are desperate for the chance to validate their experience, desperate for someone to listen. And then they get us saying, no don’t do that, it won’t help you…

It makes me want to scream just watching it. How it feels to be on the end of it I can only guess.

I share your frustrations with both the process and the system. I can’t begin to imagine the indignity that is visited upon our clients.

The problem with the OP’s approach is that as a professional representative:

(a) we know that tribunals are not the appropriate place for discussion about the injustices and hardship caused by decision-making;

(b) the Tribunal expects a higher standard of behaviour from us, and if we go in and state that the HCP is deliberately deceptive, the harm to our client is incalculable.

As a rep, when I’m formulating an argument, I always put it thus: if I’m the tribunal judge and I’m writing up a statement of reasons to support awarding enhanced rate mobility or the support component, what would cut it in terms of my approach?

Do I say that I listened carefully to all of the evidence (including how the appellant was, in fact, dropped at the door of the assessment centre and was pushed in using an attendant-propelled wheelchair), looked at the supporting medical records (which included medication, test results etc) and decided on balance I preferred the appellant’s evidence?

Or do I go with the fact the representative has, in terms, made unsubstantiated allegations about the system and the veracity of the HCP’s account, that I suspect (because I have no tangible proof) that the HCP and/or the system is corrupt and consequently I prefer the appellant’s evidence?

     
John Birks
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The tribunal appeal procedure is about the decision made.

Any systemic problems are outside of the tribunals scope. Problems with the ‘system’ are a different test for a different function for a different committee/inquiry/post mortem.

Until someone reviews the ‘system’ we just deal with the evidence and the truth.

     
stevenmcavoy
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i once had a hmrc submission to tribunal accuse me of telling my client to lie (the lie was that she was saying she had told them about her child’s dla).

rep on the day had to apologise to me and the client and we adjourned to get the cd’s they hadnt produced.

guess what the cd of her calls showed :D

     
ikbikb
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Just stick to the facts
The statement of a typical day can be read out to a client in Tribunal and they are asked to state if correct or not
It is far better if this is done before hand and any points of dispute then submitted in writing.
There is no gain in calling anyone a liar, it malicious, undermines the case and unprofessional. It is also irrelevant as the important issue is the correct facts.
Discrepancies and inaccuracies in the report, failure to include relevant points not made by the client or reportedly not recorded in the assessment, and medical evidence should be used to support any statement but this should not exclude a statement from a appellant.
The point made earlier in why would a HCP record a statement may be relevant if it is very detailed. This needs to be addressed before the hearing and put to the client.
The sooner people are given a realistic option to record these assessments the better.

      [ Edited: 7 Aug 2018 at 04:22 pm by ikbikb ]
SamW
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I agree in general with the responses above, especially from a practical viewpoint. Nothing good comes from explicitly questioning the integrity of the DWP, HCPs, other medical professionals who have given unfavorable opinions etc. It doesn’t go down well coming from clients and I agree with others above that as representatives we have to remain professional and be vigilant to avoid making any suggestion along those lines. Practically you just have to dissemble a bit and say that the HCP must have misheard or misunderstood and leave it to the Tribunal to read between the lines.

Having said this I would offer a slightly different perspective.

For me if a Tribunal Panel member asks “Why would a HCP put something in the report, which was not said by the claimant?” they do seem to be begging the question to a certain extent. It is almost inviting the appellant and/or the representative to give a response which they then go on to criticize. So I do have some sympathy for the OP.

If you were feeling really punchy there is perhaps even an argument to be made that by asking that question a Tribunal panel is committing an error of law, as the question seems to be based on a logic of automatically affording more credibility to the HCP than the appellant without giving any justification for this. The correct approach is to point out the difference between the oral/PIP2 evidence and the contents of the medical report and invite any comment, without couching that question in terms that is immediately placing the appellant on the back foot trying to defend their credibility.

One last suggestion. Ideally you have a PIP2 form that is consistent with what your client is saying at tribunal. In case you could (if you were feeling brave!) put the question back on the Tribunal member and ask why would the appellant change their account of their needs from PIP2 to medical assessment and then back again in their oral evidence at tribunal? Although you’d have to make sure you do this in full polite-mode to avoid getting on the wrong side of the panel and damaging your client’s appeal.

      [ Edited: 7 Aug 2018 at 04:37 pm by SamW ]
nevip
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The question that the tribunal asked in the OP is actually the wrong one.  It should not have asked why the assessor would lie in the report but what evidence do you have that s/he lied.  In other words, put up or shut up.

Two of the most important lessons representatives can and must learn in conducting themselves at tribunal hearings are, 1) never ask your client a question that you don’t already know the answer to, and 2) never make an assertion of fact that you cannot substantiate.

It takes years for a representative to establish a reputation with his or her local tribunal service as honest, fair minded and knowledgeable of the law and the rules of evidence.  It takes less than half an hour to ruin one.

     
ClairemHodgson
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Billy Durrant - 07 August 2018 12:48 PM

The thing is though…

Some of the HCP reports I see are more than shoddy, they are deliberately deceptive. Just one example, I attended an assessment with someone with ME/CFS. I practically had to carry her into the assessment room, she could barely walk and was slumped in the chair unable to hold her head up due to muscle pain in her neck, unable to raise her arms from her side due to pain. She explains it all at length, provides medical evidence of condition and letters from specialists and GP describing quite precisely her walking limitations and the other effects of post-exertional malaise.

Gets zero points, obtains HCP report.

PA4 report states: ‘walked into assessment room at normal pace with normal gait…all upper body movements appeared fluid and pain free…able to rise from chair unaided and without apparent difficulty…no sign of muscle wastage or evidence of pain…able to cope easily with assessment’. And so on, untruth after untruth.

She asks for the CCTV footage of her going into the assessment room, it is ‘unfortunately not available’. Complains to HCPC, its not interested. Complains to DWP, batted off to Atos. Complains to Atos, ‘not upheld’.

i can understand you wanting to scream, but since you were in fact there to know how she got into the room etc, the cure there was for you to give evidence to that effect - you are allowed to do that as it was something you witnessed.

One can but think it’s a shame such HCP’s cant be called as actual witnesses and the contradictions put to them in cross examination - which is the normal method of undermining liars in court court…...

     
Elliot Kent
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ClairemHodgson - 08 August 2018 08:32 AM

One can but think it’s a shame such HCP’s cant be called as actual witnesses and the contradictions put to them in cross examination - which is the normal method of undermining liars in court court…...

Well there is always Rule 16…

     
Helen Rogers
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If you think about it logically, no one else other than the HCP can answer the question “Why would a HCP put something in the report, which was not said by the claimant?”

     
BC Welfare Rights
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I am in agreement with what everyone else has said, just pointing out why claimants want to go down that route.

I think the OP is answered beautifully here:

Uphill Struggle - 07 August 2018 01:30 PM

As a rep, when I’m formulating an argument, I always put it thus: if I’m the tribunal judge and I’m writing up a statement of reasons to support awarding enhanced rate mobility or the support component, what would cut it in terms of my approach?

Do I say that I listened carefully to all of the evidence (including how the appellant was, in fact, dropped at the door of the assessment centre and was pushed in using an attendant-propelled wheelchair), looked at the supporting medical records (which included medication, test results etc) and decided on balance I preferred the appellant’s evidence?

Or do I go with the fact the representative has, in terms, made unsubstantiated allegations about the system and the veracity of the HCP’s account, that I suspect (because I have no tangible proof) that the HCP and/or the system is corrupt and consequently I prefer the appellant’s evidence?

Claire, that particular decision was overturned at MR but in other cases I give a clear statement to the tribunal of what I witnessed and how that differs from the HCP. Or if I didn’t witness it, I will summarise what the claimant alleges and say something along the lines of “For whatever reason the HCP has stated…”  To date at least, that has usually worked.  As with others I wouldn’t dream of making unsubstantiated allegations of corruption, whatever my personal feelings.

John Birks - 07 August 2018 02:01 PM

Any systemic problems are outside of the tribunals scope. Problems with the ‘system’ are a different test for a different function for a different committee/inquiry/post mortem.

 

Agree but inaccuracies and lies have to be rigorously challenged in order for HMCTS to keep understanding that there IS a systemic problem with assessments. As Sam points out, it is wrong for them to automatically assume that the HCP is truthful and the claimant not.

ClairemHodgson - 08 August 2018 08:32 AM

One can but think it’s a shame such HCP’s cant be called as actual witnesses and the contradictions put to them in cross examination - which is the normal method of undermining liars in court court…...

IME this is the one thing that most disappoints claimants about their tribunal experience. It is the lack of accountability and consequence for the wrongdoer, even when they have been believed and won their case. And the knowledge that when they get reassessed again shortly they may well have to go through the same experience with the exact same untouchable HCP all over again.