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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

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!!!