Pulp sang help the aged and the DWP say no we won’t help the aged! HMCTS must!

From https://www.gov.uk/attendance-allowance/eligibility:

“If you need an assessment

You’ll only need to attend an assessment to check your eligibility if it’s unclear how your illness or disability affects you.

If you do need an assessment you’ll get a letter saying why and where you must go. During the assessment, a medical professional will need to examine you.”

Isn’t this exactly what it required?

Good luck getting anything other than the traditional HMCTS response.

I am fascinated though. What kind of AA case ends up here? What’s there to dispute? Diagnosis? Symptoms? Something not addressed in the claim pack?

Other thoughts.

Ask the tribunal to bar the SOS and their evidence for non-compliance with direction AND ask the tribunal to pay for and arrange the medical assessment.

If they deny both, there may be an error in law for a UT appeal.

Mike Hughes - 07 December 2022 06:03 PM

Good luck getting anything other than the traditional HMCTS response.

I am fascinated though. What kind of AA case ends up here? What’s there to dispute? Diagnosis? Symptoms? Something not addressed in the claim pack?

Long story Mike…......just come back from a month off with Covid coupled with being less than impressed with the SOS’s stance.

1. We are going to respond to the SOS’s response to the directions with our observations i.e. evidence from the previous case i.e. HMCTS response from DWP business team that they can direct EMP visits and its the job of the DWP to sort it.

2. We will also refer the SOS to erm the letter from errrrrrrr a minister acting for the SOS saying sorry and yes we can and sorted.

3. If the above doesn’t work, then seek help from the MP again and ask that they also ask the DWP to produce something in the public domain for their staff.

4.  ‘propensity to fall’ SOS response you would have seen many times i.e. yeah you fall but everything will be fine if you take precautions i.e., make sure you don’t move.

We are going to run with

Judge M Rowland held in CA/4332/2003 that ‘It is common ground before me that the tribunal’s decision is erroneous in point of law.  I agree.  There is no requirement that falling be frequent.  Obviously, if there is a risk of injury occurring through falling, the risk of injury is greater if the risk of falling is greater.  That may have some bearing on the reasonableness of requiring continual supervision. 

However, the fact that falling is not frequent does not necessarily make the risk of injury insignificant and the tribunal did not explain why they rejected the claimant’s submission that, despite the infrequency of his falls, the risk of serious injury was still such as to require him continually to be supervised.  As the Tribunal of Commissioners pointed out in R(A) 6/89, at paragraph 24, the question whether there is substantial danger requires consideration to be given both to the likelihood of the event in question occurring and to the seriousness of the possible consequences of the event if it should occur (paragraph 5).

NAI - 08 December 2022 09:11 AM

Other thoughts.

Ask the tribunal to bar the SOS and their evidence for non-compliance with direction AND ask the tribunal to pay for and arrange the medical assessment.

If they deny both, there may be an error in law for a UT appeal.

Thanks for the response NAI.

Couple of extracts from a Directions Notice from the previous case we had below and the letter attached referred to in response to Mike’s post.

‘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’.

I don’t think that’s the approach I would take. The DWP have been directed to get the EMP report done. They are refusing to comply with that direction - note that they have not applied for it to be varied, simply stating their refusal to comply as though it were optional. The appropriate course of action is for the FtT to give them 14 days to change their tone and bar them from proceedings under rule 8 in default.

There is no reason at all why your client or the Judge should be dragged into an argument about whose budget these reports come from.

Elliot Kent - 08 December 2022 01:17 PM

I don’t think that’s the approach I would take. The DWP have been directed to get the EMP report done. They are refusing to comply with that direction - note that they have not applied for it to be varied, simply stating their refusal to comply as though it were optional. The appropriate course of action is for the FtT to give them 14 days to change their tone and bar them from proceedings under rule 8 in default.

There is no reason at all why your client or the Judge should be dragged into an argument about whose budget these reports come from.

Doesn’t that run a risk that the tribunal may then decide, on the evidence available, that the client isn’t entitled to AA at all - presumably they’re seeking the medical assessment because they’re not sure of any entitlement on what they have already?

Don’t disagree with you that the spat between DWP and HMCTS about paying for the examination should be an issue that concerns the client. However, I would be worried about the above, in the absence of anything to suggest otherwise.

Elliot Kent - 08 December 2022 01:17 PM

I don’t think that’s the approach I would take. The DWP have been directed to get the EMP report done. They are refusing to comply with that direction - note that they have not applied for it to be varied, simply stating their refusal to comply as though it were optional. The appropriate course of action is for the FtT to give them 14 days to change their tone and bar them from proceedings under rule 8 in default.

There is no reason at all why your client or the Judge should be dragged into an argument about whose budget these reports come from.

Elliot Kent - 08 December 2022 01:17 PM

I don’t think that’s the approach I would take. The DWP have been directed to get the EMP report done. They are refusing to comply with that direction - note that they have not applied for it to be varied, simply stating their refusal to comply as though it were optional. The appropriate course of action is for the FtT to give them 14 days to change their tone and bar them from proceedings under rule 8 in default.

There is no reason at all why your client or the Judge should be dragged into an argument about whose budget these reports come from.

Thanks Elliot must admit that was my initial thought. But we want to be proactive and assert our client’s case.

We put in a interlocutory request seeking a EMP visit because our client in their late 80’s is so visually at risk at falling. It’s something we would rarely advise to put it mildly. But in the absence of any other medical evidence and we are confident as in the previous case an EMP would to come to the same conclusion leading to a quick resolution i.e. lapsed appeal or a very short stay in Weymouth.

It may appear unorthodox, but essentially it is a bespoke strategy for this client.

Mike I know I know regarding having no medical evidence and client’s testimony and in this case the Tribunal’s observations of client. But we want a quick resolution.

Going back to my ‘approach’ the thinking behind was through the prism of a first tier basic walk in advice agency. Assuming an agency is involved. But also unrepresented client’s helped by family and so on so forth.

Most of us are not equipped for challenges like this, so I would like a situation in which the DWP could actually do what should be pretty basic stuff for them without any drama’s.

I know I know wishful thinking but I am determined to keep chipping away and for our client to be treated with a some respect and compassion. Hopefully benefiting others in the process.

See attached letters from DWP complaints team.

Second file not opening for me?

Mike Hughes - 18 July 2023 12:54 PM

Second file not opening for me?

Is anyone else having the same problem? Opens for me as a normal PDF document. Got any suggestions Mike?

Well that clears everything up then? I think?

It’s remarkable that even in the response conceding that they were wrong all along, the directions from the tribunal are referred to as the tribunal having “asked” for and “requested” a report as opposed to the correct language of having “directed” or “ordered” one.

It’s opening for me now Andy.

Elliot Kent - 18 July 2023 01:31 PM

Well that clears everything up then? I think?

It’s remarkable that even in the response conceding that they were wrong all along, the directions from the tribunal are referred to as the tribunal having “asked” for and “requested” a report as opposed to the correct language of having “directed” or “ordered” one.

Extraordinary stuff!!!!!

Mike Hughes - 18 July 2023 01:35 PM

It’s opening for me now Andy.

Phew!

Computer has been converted to Gates 11 has been problematic, but clearly wasn’t the problem this time.