IB65 wording; is this misleading?

I agree the wording is far from ideal but is it a bit academic now that PCAs are a thing of the past? Unless you are thinking of trying to identify claimants who did not pursue appeals because of the wording? Which I guess would be a difficult exercise.

Thanks for replying- PCA’s aren’t strictly a thing of the past yet, though…..

Please, oh please, tell me that a decision maker did not deliberately disregard points awarded under the same mental health descriptor?  If so, I thought I’d seen and heard everything by now.  Obviously not.

nevip - 13 May 2011 12:22 PM

Please, oh please, tell me that a decision maker did not deliberately disregard points awarded under the same mental health descriptor?  If so, I thought I’d seen and heard everything by now.  Obviously not.

Yes, this is exactly what happened in this case. In fact, when I queried it with the benefit delivery centre, the advisor I spoke to confidently told me that only the highest points in the mental health daily activity categories are added together. In this case the medical examiner awarded 8 points between 3 daily activities- the decision maker awarded 4 points (2, 1 and 1).

Worse than the wording in the decision being less than ideal, I believe that the wording is wrong and misleading, and that any claimant who has received such a letter should receive a new decision with the correct information included, and that the appeal rights should be reinstated. I may be going too far for some tastes, but my sense of justice has been upset…..!

“Worse than the wording in the decision being less than ideal, I believe that the wording is wrong and misleading, and that any claimant who has received such a letter should receive a new decision with the correct information included, and that the appeal rights should be reinstated”.

I agree, absolutely.

nevip - 13 May 2011 12:35 PM

“Worse than the wording in the decision being less than ideal, I believe that the wording is wrong and misleading, and that any claimant who has received such a letter should receive a new decision with the correct information included, and that the appeal rights should be reinstated”.

I agree, absolutely.

Thanks. We’re looking through other decisions at the moment.

My colleague and I suspect that this may be due to the rules for ESA (adding up the highest descriptor points from every activity) being applied to the Personal Capability Assessment. At the very least, clients are being misinformed. Please check your PCA decisions.

Hello again,

Just to let you know that I have sent a complaint to JC+, and asked for it to be dealt with in accordance to the official complaints procedure. I’m aware that this may be construed as splitting hairs, but I’ve argued less clear cut points…. It’s surely a question of what it would be reasonable to conclude from the information given…. Certainly, the decision maker in this case has concluded incorrectly; what chance the claimant?

I’ll let you know how it progresses.

Regulation 26 of the Incapacity for Work (General) Regs is the authority. It makes it quite clear that
“(3) In determining a person’s score in respect of descriptors specified in Part I, where more than one descriptor specified for any activity applies to him, only one descriptor shall be counted and that shall be the descriptor with the highest scroe in respect of each activity which applies to him.
(4) In determining a person’s score in respect of descriptors specified in Part II the score in respect of each descriptor which applies to him shall be counted”
The Schedule is the details of the PCA and Parts I and II are the physical and mental descriptors respectively.

Thanks Ariadne. The question, ultimately, is whether the paragraph in question misrepresents this law. At the very least, I think that it needs to be rewritten- whether or not it could be shown to have affected the reasoning of a claimant deciding whether or not to appeal a decision is another matter. Whether the paragraph constitutes guidance in the tradition of a ‘written statement of reasons’ and could therefore be construed as an error in law is another matter altogether. Too much for little ol’ me- I just had a hunch and ran with it.

When you spend a fair proportion of your working life trying to figure out ways to challenge decisions, and something like this pops into your mind it can seem blindingly obvious and it rouses the emotions somewhat. It’s worth challenging and pointing out, although my expectation for the effect of the challenge has reduced over the weekend….

efloyd - 13 May 2011 12:51 PM

My colleague and I suspect that this may be due to the rules for ESA (adding up the highest descriptor points from every activity) being applied to the Personal Capability Assessment. At the very least, clients are being misinformed. Please check your PCA decisions.

Was always only a matter of time :(

neilcoll - 17 May 2011 10:41 AM

efloyd - 13 May 2011 12:51 PM

My colleague and I suspect that this may be due to the rules for ESA (adding up the highest descriptor points from every activity) being applied to the Personal Capability Assessment. At the very least, clients are being misinformed. Please check your PCA decisions.

Was always only a matter of time :(

In the case of my client, the front page of of IB65 correctly states the points gained (8). It also states that a claimant needs 10 points under the mental health descriptors. It goes on to say that the decision maker can only add up the highest point from each daily activity, and follows on with the Secretary of State’s submission, which states that the claimant achieved 4 points (the highest points 2, 1, 1 achieved from each descriptor).

Aside from all of this, it would be reasonable to assume that there exists a new generation of DM’s used to writing only LCW decisions and submissions, and some are bound to slip up when faced with a PCA….. Well, I have evidence that this happened once…..