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Pulp sang ‘Help the aged’ but the Secretary of State says no cos they are too old, and isn’t ‘contractually obliged’ and don’t have the ‘infrastructur

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Andyp5 Citizens Advice Bridport & District
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Pulp sang ‘Help the aged’ but the Secretary of State says no cos they are too old, and isn’t ‘contractually obliged’ and don’t have the ‘infrastructure’.

Any constructive thoughts or ideas on the following gratefully received.

Judge Gray held in CPIP/3544/2015 that a First-Tier Tribunal has power to direct the Secretary of State to undertake a medical assessment - DWP (4 times) in response to HMCTS directions argue it does not apply to AA and DLA ‘where the claimant is 65 or over’.

Secretary of State’s response to the latest (4th) set of Directions directing an EMP visit to our client’s home below.

‘I have confirmed with the Attendance Allowance Unit that, following Appeal Reform in 2013, they are no longer contractually obliged to organise examinations of claimants by an examining Medical Practitioner’ in connection with claims to Attendance Allowance or Disability Living Allowance where the claimant is 65 or over. There is no infrastructure in place to facilitate such examinations, which are appropriate to working age benefits such as Personal Independence Payment, i.e. the benefit referred to in the case law included with the representative’s submission’.

‘If a Tribunal Judge deems it necessary to carry out a medical examination once a claimant has made an appeal against a decision regarding a claim for Attendance Allowance, it is the responsibility of the Tribunal Service to make the necessary arrangements and meet the costs’.

Extract from our last interlocutory submission below - this has been going on since 2019.

‘Judge Gray held in CPIP/3544/2015 that a First-Tier Tribunal has power to direct the Secretary of State to undertake a medical assessment such as Directed by Judge ************ and the two Tribunal Caseworkers referred to above (paragraphs 29 – 35 cited below). As conceded by the Secretary of State in their submission to Judge Gray in CPIP/3544/2015. Please see CPIP/3544/2015 attached’.

‘The power of the FTT to direct a medical assessment
29.  This appears in an amendment to schedule 2 to the Tribunal Procedure Rules (First-Tier Tribunal) (SEC) Rules 2008 (the procedural rules). 
30. Schedule 2 is headed “Issues in relation to which the tribunal may refer a person for medical examination under section 20 (2) of the Social Security Act 1998.”
31. Section 20 applies to any appeal brought under section 12 of the Social Security Act ( the SSA)  against a decision on a claim for a relevant benefit or as to a person’s entitlement to such a benefit.  These are appeals against any decisions of the Secretary of State in relation to benefit entitlement which are not specifically designated as unappealable decisions under schedule 2 of that Act.  A relevant benefit, under section 8 (3) of that Act includes a personal independence payment.

32. Section 20 (2) SSA provides that

20(2) The First-Tier Tribunal may, if conditions prescribed by Tribunal Procedure Rules are satisfied, refer the person –
(a) in respect of whom the claim is made; or
(b) he was entitlement is at issue,
to a healthcare professional approved by the Secretary of State for such examination and reporters appears to be First-Tier Tribunal to be necessary for the purpose of providing it with information to use in determining the appeal.

33.  Section 39 (1) of the same Act defines a “health care professional” widely, to include registered doctors and nurses, as well as registered occupational therapists or physiotherapists, and empowers the Secretary of State to add other registered health care professionals.
34. To return to schedule 2 of the procedural rules, the list of issues which fall with in that schedule includes whether a claimant satisfies the conditions for entitlement to either the daily living component or the mobility component of PIP (schedule 2 (a) (vi) and (vii)) and (schedule 2 (j)) and the rate at which the allowance is payable.
35. Accordingly in an appeal against a PIP decision relating to issues of entitlement the FTT has the power to direct that what is described as a medical examination and performed by a health care professional, take place’.

Attendance Allowance heads the list of benefits Schedule 2 Tribunal Procedure Rules (First-Tier Tribunal) (SEC) Rules 2008 refers to. 

[ Edited: 29 Apr 2021 at 11:09 am by Andyp5 Citizens Advice Bridport & District ]

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HB Anorak
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I think there is a point of construction.  DWP are saying that the Tribunal has power to direct an assessment by a DWP-approved practitioner, and no such person exists for the purpose of AA and pension age PIP cases, therefore a direction cannot be made.  They are saying the power to direct only applies insofar as there already exists an approved person to do it.

The alternative view is that the Tribunal has the power to direct an assessment, full stop, but it is for DWP to approve who does it - the Tribunal cannot appoint an examiner over DWP’s head when using that powder of direction.  If there is no-one currently approved, they had better approve someone.

Elliot Kent
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The obvious point is that directions are mandatory orders. You don’t get to just give some excuse and then they go away. There would need to be a request for the directions to be varied or set aside, or for compliance to be waived, or an appeal against them attempted. It doesn’t appear from your write up that any of these things have occurred. “Sorry guys, no can do” is not a valid response - its an egregious rule 2 breach.

If that is the case, I would be minded to write to the Tribunal requesting further directions that unless the respondent either complies with the directions or formally challenges them within (say) 28 days, they should be barred from further participation in the appeal as under rule 8 and the Tribunal should then proceed to consider summarily determining the remaining issues against the respondent.

I would add that this is just as true even if it is right that the FtT does not have the power to make the directions it did. They still need to be properly challenged.

[ Edited: 29 Apr 2021 at 12:12 pm by Elliot Kent ]
Andyp5 Citizens Advice Bridport & District
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Thanks Peter and Elliot for your responses really appreciated!!!

 

Andyp5 Citizens Advice Bridport & District
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HMCTS agree with Pulp too!!!!!!!!!!!

For completeness this is a Bridders CA / Age UK North South and West Dorset collaboration if Paul stumbles upon this.

Couple of extracts from a Directions Notice below may be of interest.

‘In its most recent submission the DWP asserts that it is no longer contractually obliged to organise and pay for examinations of claimants by an examining medical practitioner in connection with claims for Attendance Allowance and Disability Allowance. Further enquires have revealed that this is incorrect’.

A Jurisdictional Team Manager within HMCTS has liaised with the Policy Team at DWP, and it has been confirmed by the Policy Team that the submission referred to above by the Attendance Allowance Unit is incorrect. The DWP Policy Team has confirmed that if a Tribunal requires an EMP or HCP report then a direction should be made and the relevant department (in this case the Attendance Allowance Unit) will commission a report from the provider’.

Andyp5 Citizens Advice Bridport & District
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The Tribunal Procedure (First Tier) (Social Entitlement Chamber) Rules 2008, Part 1 rule 2 (1), (2) – ‘Overriding objective and parties obligations to co-operate with the Tribunal’.

Secretary of State’s response - :

Extracts below….......................................................................

‘the department’s supplier for carrying out examinations by medical professionals - the Centre for Health and Disability Assessments (CHDA) - has confirmed that they are contractually obliged to carry out a consultation by a visit to a claimant when requested to do so by HMCTS’.

‘However, this can not be done by the Attendance Allowance Unit; such a referral must be made to the CHDA directly from HMCTS and include a request pro-forma and a copy of the claimant’s consent for assessment form’.

Elliot Kent
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I am sure that there is some entertainment value in sitting on the sidelines whilst this is disputed, but ultimately it seems to have been forgotten somewhere who is in charge in this process.

The judge has directed a result to happen (i.e. an assessment to be conducted) and should not be expected to babysit as the DWP and HMCTS officials try to figure out the minutiae of which pro formas need to be completed.

Andyp5 Citizens Advice Bridport & District
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I think that’s harsh Elliot.

I don’t think anyone could have predicted the intransigence, unwillingness, curmudgeonly, uncooperative responses at each stage of this ongoing grinding saga from the Secretary of State. 

I didn’t post this for entertainment value, I used the reference to Pulp to garner attention. The reason I posted it was for a wider social policy angle i.e. the challenges engaging with the DWP in the current climate.

Also forlorn or otherwise that higher ups might want to take some responsibility.

What it does say about a DWP department that contracts out to, in this case it appears Maximus. Contacts the contractor for advice regarding the contract? In response to the directions and responds to HMCTS as if that contractor has nothing to do with the DWP at all i.e. third party separate entity e.g. GP. Let alone the previous responses stating…....................not in the contract

Elliot Kent
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Yes I don’t think that we are disagreeing about anything Andy? Certainly I am not intending to be critical of anyone but the DWP and apologies if it came across that way.

What I am saying is that it is wholly inappropriate, disrespectful and in breach of Rule 2 for the DWP to be responding to directions as though they were an invitation to enter into some sort of dialogue about all of this nonsense. That is not the function of directions. Directions exist because a judge has ordered you to do something and you are legally bound to do it - particularly if you are a government department. There should not be a situation where it is necessary for a judge to have had to order the DWP to do the same thing 5 times (by my count) without it being done.

In my view what perhaps ought to have happened (perhaps several months ago now, but certainly at this stage) is for the Judge to have said to the DWP: “I have ordered you to do this which is within my power. Have it done - I don’t care how - or I will bar you from proceedings under Rule 8. Otherwise, appeal my order”.

 

[ Edited: 16 Jul 2021 at 03:37 pm by Elliot Kent ]
Mike Hughes
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Well said Elliot. Can only echo that.

Politicization of the DWP means that they show similar tolerance of and respect for judges as politicians show to racists in football i.e. not much.

Andyp5 Citizens Advice Bridport & District
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Elliot Kent - 16 July 2021 03:29 PM

Yes I don’t think that we are disagreeing about anything Andy? Certainly I am not intending to be critical of anyone but the DWP and apologies if it came across that way.

What I am saying is that it is wholly inappropriate, disrespectful and in breach of Rule 2 for the DWP to be responding to directions as though they were an invitation to enter into some sort of dialogue about all of this nonsense. That is not the function of directions. Directions exist because a judge has ordered you to do something and you are legally bound to do it - particularly if you are a government department. There should not be a situation where it is necessary for a judge to have had to order the DWP to do the same thing 5 times (by my count) without it being done.

In my view what perhaps ought to have happened (perhaps several months ago now, but certainly at this stage) is for the Judge to have said to the DWP: “I have ordered you to do this which is within my power. Have it done - I don’t care how - or I will bar you from proceedings under Rule 8. Otherwise, appeal my order”.

 

No worries Elliot we’re in accord!!!!!!!!!!. I was thinking of beleaguered public sector workers in HMCTS !!!!!!!!!

Thanks too for your responses really handy and food for thought.

Have to confess never envisaged such a response. I am baffled as to why? 

It’s important to highlight and share iniquitous case scenario’s in the public domain via Rightsnet, NAWRA, CPAG’s EWS, et al.

Would urge other 1st tier advice agencies to do the same.

 

Mike Hughes
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I’m not baffled Andy. We’re at the stage where DWP can write subs advising claimants that their rep is a clown (paraphrasing but I’ve had it twice now and in both instances we went on to win the appeals in every last aspect) and completely ignore judges. Totally agree this sort of stuff needs wide publicity.

Andyp5 Citizens Advice Bridport & District
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Mike Hughes - 16 July 2021 05:08 PM

I’m not baffled Andy. We’re at the stage where DWP can write subs advising claimants that their rep is a clown (paraphrasing but I’ve had it twice now and in both instances we went on to win the appeals in every last aspect) and completely ignore judges. Totally agree this sort of stuff needs wide publicity.

I take your point Mike, it’s an extraordinary era!!!!!!!!!!

That said I need to take refuge in my bafflement every so often, if only so I can summon up or should that be dredge sufficient reserves of sanity, to etc etc.

Then there’s getting over missing out on promotion first Sutton pipping us, then Hartlepool. 

 

Mike Hughes
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Fair point.

I feel your pain. Console yourself with the fact Sutton won’t survive now the pitch has been dug up.

I’ve yet to recover from 2013. An FA Trophy win; 2 visits to Wembley in one season; 98 points and still no promotion.

Andyp5 Citizens Advice Bridport & District
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See attached letter from the Minister for Pensions Correspondence Manager.

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Andyp5 Citizens Advice Bridport & District
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Client’s appeal allowed AA awarded (EMP/HP report confirmed etc etc) - collaborative effort with Sarah and Liz from our friends/allies at https://www.ageuk.org.uk/northsouthwestdorset/services/information-advice/

Just to complete the narrative see extract from an email from Sarah who attended with client concerning the Maximus (WCA) venues in Weymouth and Yeovil lack of accessibility.

‘Well what a nightmare that was. The venue got changed to Yeovil and DWP booked a taxi (My insert - the original venue Weymouth is not disability friendly). The taxi that turned up was completely unsuitable and Mrs. ******  was unable to get into it. So I drove her. Despite reassurances that the building was accessible this turned out to be only partially true. We did manage to get in eventually but it was not easy and it left Mrs. *******  pretty exhausted. And then she had to do it all again to get out’.

Thanks Elliot, Mike, HB for your help really appreciated!!!!!!!!!!

Age UK do some amazing stuff, and Covid has especially hit their funding really badly.

If you are a Welf who can spare odd bibs and bobs of time, you may find your local Age UK can find some use for you.

Check them out - https://www.ageuk.org.uk/