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The Scottish Case

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The CASA
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Has anybody read about the assessment process in a case being called the “The Scottish Case”?

     
Elliot Kent
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That’s a pretty vague prompt. Who said it and what point were they making?

At a punt, it could be something to do with the MM litigation in the Supreme Court which has come from Scotland and relates to PIP activity 9. That’s probably the most high profile Scottish case which is currently going through the courts.

     
The CASA
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No Elliot,

PM me and I’ll put you in the picture, same goes for others.

     
Dan Manville
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Is thsi that Glaswegian Lawyer? I’ve seen comment on it. We tried something similar with the WCA a few years back off the back of PLP’s work in MM & DM It didn’t fly but I think it rattled a few people.

     
BC Welfare Rights
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past caring
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If it is that one, I’m not certain of there being any wider impact, even if it succeeds - it’s predicated on individual discrimination against him, rather than claimants with mental health problems as a class (even though he says claimants with mental health problems as a group are affected). Indeed, the report says,

He had been receiving PIP from 2013 until it was removed following a reassessment in November 2016.
It was only reinstated last October, after he took his appeal to the social security tribunal.

So the DWP didn’t initially discriminate against him - but then it did? Begs a whole load of questions, doesn’t it? *scratches chin*

 

     
HB Anorak
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I wondered if the appellant was called MacBeth and lawyers consider it bad luck to mention it by name?

     
Elliot Kent
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HB Anorak - 11 February 2019 10:35 AM

I wondered if the appellant was called MacBeth and lawyers consider it bad luck to mention it by name?

I was wondering how long it would take…

     
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I was thinking more Timon of Athens….

     
HB Anorak
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Well, someone had to.  Thought I would take one for the team

     
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A friend of mine, who, in hot blood,
Hath stepp’d into the law, which is past depth
To those that, without heed, do plunge into ‘t.

     
The CASA
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Sorry for the delay in replying, I have been on holiday.A claimant in Lanarkshire lost his PIP after an assessment. He requested the AR. However, two reports were included, both in respect of the assessment. However, one report scored him 0 points, the other 8 points.
Marion Fellows, his MP has raised this in Parliament. To date the DWP has prevaricated. The DWP blame IAS with IAS blaming the DWP.
Obviously, nefarious activity by one of the parties has taken place. I believe this is not a one off. but which one?
Also, I have flimsy evidence that parts of AR are being amended. However, I cannot narrow this down to the guilty party IAS or the DWP. If you can anonymise the section in the AR of your clients, which refers to the MSE/MSO, please scan them in and pm them to me. I intend to publsih the results of this research on Rightsnet.

Please note: I am only interested in the page in the AR, which refers to the MSE, especially for clients who allege no MSE took place for whatever reason.

     
Mike Hughes
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BC Welfare Rights - 11 February 2019 09:59 AM

This one?
https://mydisabilitymatters.news/news/disabled-solicitor-launches-ground-breaking-legal-case-over-pip-discrimination/199164/

I remember reading this on the DNS site. There’s a case to be made but it’s most likely not going to be this one. Struck me we were dealing with a flailing Mackenzie friend type scenario. “This is wrong and this is wrong and this is wrong”. A lack of focus. For example, the point about a lack of qualifications. My GP is very well qualified. Couldn’t tell you the most basic thing about my VIs. Better still, a pivotal aspect of 1 of them is not and never has been included in medical text books. What then?

Same with MH. I get the aspect about how this feels from the claimants end of the telescope but something vile and life-changing is not automatically discriminatory much as I might want it to be. Small aspects of it may be but this is focused on sweeping generalisations. I’m not optimistic for his chances frankly.

I could even buy into the “invisible impairments” argument were it not for the overwhelming evidence that visible impairments and obvious consequences are repeatedly ignored.

 

     
Peter Turville
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I note a new (perhaps I have previously missed it!?) standard para. in DM reasoning:

“It should be noted that the report is not a detailed record of what was discussed at the interview. Instead the report reflects the HCP’s professional opinion of your functional ability. The HCP will draw much of the information needed from informal questions, discussion about your daily activities and also from less obvious factors such as body language, facial expression and informal observations of your movements. I am satisfied with the accuracy and integrity of the report.”

So a HCP may record (accurately or otherwise) what a claimant reports but do not have to record and justify their own informal observations which may form the basis of their recommendations. Which may be a bit off point / different to the issue in the Scottish Case but one can see why in general claimants so often dispute what is recorded in HCP’s record of the standard MSE etc tests (standardised responses in the ESA85 v informal observations not recorded / justified which lead to the opinion).

Its not unknown for a HCP report to be reviewed and amended by another HCP either by the provider or on referral back by the DWP. However. sometimes the reason why it has been amended are not clearly noted / justified (I had one case where the original HCP report had been amended 4 times - to increase the points awarded each time!).

      [ Edited: 12 Mar 2019 at 02:05 pm by Peter Turville ]
Mike Hughes
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Well quite. Currently have a client who had a PIP assessment which purported to include an MSE. Client insisted they’d had no MSE and the specific measurements were essentially fictional. Complaints followed and it transpired that the claimant didn’t have a formal MSE. They had been a victim of “informal observations”. That would be okay if the obs were not so far from the reality and if the HCP had been able to informally observe. Unfortunately, the claimant noted that the HCP had not seen their approach to the building and had been brought out to them in reception. They then turned on their heel and walked ahead of the claimant all the way to the assessment room. I’m sure some claimants think these people do have eyes in the back of their head but in this case it was apparently so!!!

Assessment provider argued that HCP had in fact walked alongside the claimant. That lasted right up until we pointed out that this would be physically impossible. They’d been telling claimants (not for the first time) that the lift was “not for claimants” and then leading them up the stairs. Easy enough to demonstrate that the stairs are barely wide enough to accommodate one person let alone two along side each other. AP eventually had to concede that the HCP was either in front and made it all up or at the back on narrow stairs and not in a position to look down and see. Cue “we weren’t there so we’ll never know” response from the AP.

Fortunately the appeal did not hinge on the matter. It merely angered the claimant beyond words.

     
ClairemHodgson
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and of course “the stairs are not for clients” falls foul of the need to make reasonable adjustments (for those who couldn’t climb them) and narrow stairs OR lift wouldn’t help the claustrophobic