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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

Obtaining further medical evidence and patients with mental health conditions

Ruth Knox
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I have had a look at [2013] EWCA Civ 1565 but am still a bit confused.  Is it the case that where a claimant with a mental health conditions is being assessed for Work Capability, the DWP always has the duty to contact their GP for Further Medical Evidence before making a decision?  Or is this an oversimplified view?

Elliot Kent
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It definitely doesn’t mean that.

The case was a JR dealing with the notion that (broadly) the WCA process was discriminatory against people with mental health problems. The claimants established as a general proposition that it was, but the issue of what was to be done about that became problematic. The Court of Appeal under the citation you give held that the approach of the UT to that issue was not a valid one and it sent the case back down.

In the re-hearing under neutral citation [2015] UKUT 107 (AAC), the UT held that because the particular claimants had not suffered any disadvantage (as against ‘people with mental health problems’ as a class) it had no power to do anything so the claims were dismissed. It went on anyway to consider some suggestions as to what order it could have made if it had found discrimination but it commented (albeit obiter) that there were significant practical problems with the proposed reasonable adjustments which had been put forward in relation to evidence gathering.

I think the summary of it really is that it was a strategic challenge which identified flaws in the WCA system and put pressure on SSWP to proactively address them, but it is not an authority that any specific action is required in a given case.

Ruth Knox
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Thanks Elliot, that is really interesting. I thought I must have missed something - I think I came across it around 2013 and then forgot all about it until recently.  I could see in the Court of Appeal that they thought the UT had overstepped itself but thought that the fact it had upheld the case on a number of grounds might have carried weight.

Ruth Knox
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Given the JR I thought there might be something more specific in the Decision Makers Guide in relation to mental health but can’t find anything other than medical services may seek further information. Still think it is worthwhile writing on final page “ As I am unable to give a good account of my own condition please contact my GP ( CPN, consultant, etc)  What do others think as a tactic?

Va1der
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It is blatantly obvious that DWP should seek evidence from claimants’ health professionals. Encouraging them to do so, seems a bit like using a leafblower in a storm.

If anything, I’d try to use language throughout the form that makes it even dafter not to. Such as dragging the focus over from what the client thinks themselves, to what they have been told by health professionals. ‘My CPN tells me I should do X, Y and Z to manage my condition’ etc.

Fingers crossed Scottish Social Security will do better, and demonstrate a more useful approach.

Ruth Knox
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Yes I agree they should do this but Inthink they often don’t. That’s why I wondered if asking them explicitly to do so would be a useful tactic

Mike Hughes
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Va1der - 16 November 2020 10:45 AM

It is blatantly obvious that DWP should seek evidence from claimants’ health professionals. Encouraging them to do so, seems a bit like using a leafblower in a storm.

If anything, I’d try to use language throughout the form that makes it even dafter not to. Such as dragging the focus over from what the client thinks themselves, to what they have been told by health professionals. ‘My CPN tells me I should do X, Y and Z to manage my condition’ etc.

Fingers crossed Scottish Social Security will do better, and demonstrate a more useful approach.

Totally agree. Sadly a system designed for claimants to prove entitlement does mean there is little onus on DWP or a HCP to seek something to clarify so steering the focus is an excellent way to pile the pressure on.

Last MH tribunal I did included the priceless phrase to a PO “... and can you think of a reason why you wouldn’t need evidence referred to more than 50 times in the claim pack?”