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Compensation following tribunal

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Phil R
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I have a client that obtained a psychological report to help with a PIP tribunal. Has anyone had any luck getting the cost of medical evidence back from the DWP following successful appeal?

     
John Birks
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Would the DWP have paid for such a thing in the first place?

     
Phil R
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Probably not but neither would the client.

     
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It was the claimant’s decision to obtain and pay for the report. If she did so following professional advice, then that advice ought also to have informed her she would need to bear the cost herself, even if the appeal was allowed.

     
Phil R
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I’ll take that as a no then. The report was commissioned and paid for by the client’s professional deputy so it’s not much of a problem. I do think however, that having to pay for a report to help overturn what was a terrible DWP decision in the first place, is taking justice out of the hands of those who cannot afford it.

     
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That has been so ever since Legal Help (and with it the availability of disbursement to pay for medical reports) for welfare rights cases was withdrawn.

That said, even if compo was a possibility, aren’t there a couple of problems with something like this? If the DWP’s initial decision was patently wrong in the first place, wouldn’t it logically follow that the psych report was entirely unnecessary to winning the appeal? And if the report was crucial, how do we know that without a statement of reasons from the tribunal to that effect?

     
Elliot Kent
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You could always ask? ICE could compensate if so minded.

Shy bairns get nowt.

     
Paul_Treloar_AgeUK
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I think there’s probably some kind of argument to be made under category 2 or 3 of Financial redress for maladministration like Elliot said, if you don’t ask you don’t get (at least that’s what I think he said, not being fluent in Geordie…..)

     
Phil R
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past caring - 26 March 2019 01:06 PM

That has been so ever since Legal Help (and with it the availability of disbursement to pay for medical reports) for welfare rights cases was withdrawn.

That said, even if compo was a possibility, aren’t there a couple of problems with something like this? If the DWP’s initial decision was patently wrong in the first place, wouldn’t it logically follow that the psych report was entirely unnecessary to winning the appeal? And if the report was crucial, how do we know that without a statement of reasons from the tribunal to that effect?

An appellant without representation may find it extremely difficult to convince a panel that what they are saying is true compared to what the HCP is saying. That relies on the tribunal accepting their word over the HCP without supportive medical evidence.

     
Elliot Kent
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Paul_Treloar_AgeUK - 26 March 2019 01:38 PM

like Elliot said, if you don’t ask you don’t get (at least that’s what I think he said, not being fluent in Geordie…..)

Hahaha, I am certainly not a bona fide Geordie, as my colleagues will tell you, having emigrated here from slightly further down south… It was a motto of a former colleague of mine.

Another way to put it is by way of Wayne Gretzky: “you miss all the shots you don’t take”.

My point is just that there is no absolute legal bar to asking for compensation and there is no reason why it would be inappropriate or unprofessional to ask, so if the agency concerned feel really strongly about it and are prepared to put in the effort, why not ask?

I think PC is probably right - the DWP will probably say that it isn’t their problem and it might be a waste of time but I don’t see that, as of itself, as a reason not to give it a go.

     
NeverSayNo
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Phil R - 26 March 2019 02:28 PM
past caring - 26 March 2019 01:06 PM

That has been so ever since Legal Help (and with it the availability of disbursement to pay for medical reports) for welfare rights cases was withdrawn.

That said, even if compo was a possibility, aren’t there a couple of problems with something like this? If the DWP’s initial decision was patently wrong in the first place, wouldn’t it logically follow that the psych report was entirely unnecessary to winning the appeal? And if the report was crucial, how do we know that without a statement of reasons from the tribunal to that effect?

An appellant without representation may find it extremely difficult to convince a panel that what they are saying is true compared to what the HCP is saying. That relies on the tribunal accepting their word over the HCP without supportive medical evidence.

What the HCP is saying is often easily pulled apart. Plus what they have written down, even if accurate, has limited value when they do not also report the questions that produced those answers. In my own experience what appears most important is what an appellant says to the questions at tribunal. Tribunals can be persuaded to ignore the HCP report, but they still will not make an award if the claimant on their own oral evidence does not fit the activities/descriptors. I find whether with or without medical evidence, an appellant is going to be asked a lot of questions at tribunal and usually its their answers that will persuade a tribunal.

 

     
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NeverSayNo - 26 March 2019 03:46 PM
Phil R - 26 March 2019 02:28 PM
past caring - 26 March 2019 01:06 PM

That has been so ever since Legal Help (and with it the availability of disbursement to pay for medical reports) for welfare rights cases was withdrawn.

That said, even if compo was a possibility, aren’t there a couple of problems with something like this? If the DWP’s initial decision was patently wrong in the first place, wouldn’t it logically follow that the psych report was entirely unnecessary to winning the appeal? And if the report was crucial, how do we know that without a statement of reasons from the tribunal to that effect?

An appellant without representation may find it extremely difficult to convince a panel that what they are saying is true compared to what the HCP is saying. That relies on the tribunal accepting their word over the HCP without supportive medical evidence.

What the HCP is saying is often easily pulled apart. Plus what they have written down, even if accurate, has limited value when they do not also report the questions that produced those answers. In my own experience what appears most important is what an appellant says to the questions at tribunal. Tribunals can be persuaded to ignore the HCP report, but they still will not make an award if the claimant on their own oral evidence does not fit the activities/descriptors. I find whether with or without medical evidence, an appellant is going to be asked a lot of questions at tribunal and usually its their answers that will persuade a tribunal.

Well quite.

And if the initial DWP decision was so ‘patently wrong’ I don’t see why this would not have been apparent to the tribunal? - i.e. without the need for a psychologist’s report.

That aside, I think Elliot and Paul were right - there’s no harm in asking. I sometimes forget that other advisers have more resources or more scope in their job roles to pursue this kind of thing and not everyone is limited to dealing with matters which a) fall strictly within the scope of welfare rights advice and b) for which there is remedy in law.

     
ClairemHodgson
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Paul_Treloar_AgeUK - 26 March 2019 01:38 PM

like Elliot said, if you don’t ask you don’t get (at least that’s what I think he said, not being fluent in Geordie…..)

Spot on, says Claire from Durham & Newcastle…

     
Mike Hughes
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Key phrase here is “having to”. The deputy may have felt it was the only way forward but it rarely is. It’s more likely that it was fed by the assumption that medical opinion can only be overturned by a different medical opinion. Recent decision on this site have reconfirmed that absolutely is not the case and anyone doing PIP appeals understands that in most cases reliance on further medical reports is rarely the main focus. Whilst a deputy may not be in a position to know that they are in a position to seek advice on the appropriate way forward. Whilst there is no harm in asking I think any success would be remarkable.

     
Phil R
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I think the problem the deputy had was that the appellant suffered a brain injury, one of the effects being he has no insight into his condition. Therefore, when you speak to him, you could be of the opinion that he is more than capable of doing all the activities without assistance as that is exactly what he will tell you. The deputy wanted to ensure that his issues and lack of insight were in front of the panel.

     
Mike Hughes
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Phil R - 28 March 2019 09:09 AM

I think the problem the deputy had was that the appellant suffered a brain injury, one of the effects being he has no insight into his condition. Therefore, when you speak to him, you could be of the opinion that he is more than capable of doing all the activities without assistance as that is exactly what he will tell you. The deputy wanted to ensure that his issues and lack of insight were in front of the panel.

I have a similar case. Brain aneurism which was preceded by 4 strokes. Total lack of insight albeit they present somewhat maniacally/intensely so at minimum (if I can get them out of the house and into a tribunal room) they will present as aggressive. Discharged from neuro to district nurses when their neuropsych went on mat leave. Discharged by district nurses as soon as they could from what I could tell. No neuro input for some years. I’ve got the family to re-refer in to neuro but there is a huge backlog. However, my sub covers all the above and I’m not anticipating an issue on the day if we haven’t got an up to date neuro report by that date.