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Appeal refused submission of Audio recording of PIP assessment
Hi,
I submitted the audio recording of the PIP assessment as part of an appeal.
They have provided a direction notice and stated that :
“the recording is not relevant to the issues before the tribunal and the tribunal can assess the appellant without this evidence. “
Is this normal?
Any advice appreciated.
Is the recording relevant to the issues raised by the appeal and if so, how? I can see why a judge doesn’t want the panel to have to listen to an hour or so of the assessment unless there is a particular reason to do so. You can always ask for the directions to be amended, if there is a burning reason for the panel to hear the recording.
Tribunal procedure rules
6 (5) If a party or any other person sent notice of the direction under paragraph (4) wishes to
challenge a direction which the Tribunal has given, they may do so by applying for another
direction which amends, suspends or sets aside the first direction.
As has been said repeatedly on these forums, even the PIP assessment report will only very rarely be of much relevance in a PIP appeal - so a recording is likely to be even less relevant.
Claimants may understandably get upset and exercised as what they perceive as inaccuracies in assessment reports - “I never said that”, “They didn’t ask me about this” and so on. But even where that is true, even where you establish the report is poor and unreliable - that is all you have done.. Tribunals know that PIP assessment reports are poor - you are pushing at an open door.
What needs to be done in an appeal is to establish that the claimant does in fact meet the conditions of entitlement - showing the assessment report is rubbish doesn’t begin to do that.
The recording of an assessment may show a claimant was treated unfairly, that they were not asked particular questions, that they gave different answers or perhaps even that they were treated in a discriminatory manner - but those are all matters of a complaint to the DWP. So I am struggling to see the circumstances in which the recording of an assessment may be of particular relevance to an appeal.
[ Edited: 29 Nov 2024 at 02:53 pm by past caring ]Hi,
I submitted the audio recording of the PIP assessment as part of an appeal.
They have provided a direction notice and stated that :
“the recording is not relevant to the issues before the tribunal and the tribunal can assess the appellant without this evidence. “
Is this normal?
Any advice appreciated.
If this tribunal takes the view that recordings are never relevant, because the tribunal can always assess the appellant for themselves (as they do), it must follow that the assessor’s report is also irrelevant.
A direction of this kind must surely depend on what the issues actually are. Suppose one issue is how far the appellant can walk. They say they can’t walk more than 50m. The assessor’s report says that they said they can walk 200m. The recording shows clearly that the appellant said nothing of the kind. The recording must be relevant, because it shows that evidence which the SoS asks the tribunal to accept and rely on, is in fact unreliable. I actually have a UC WCA case at the moment where the recording shows that quite a lot of the assessor’s report is a complete invention - including a non-existent husband for the appellant! The recording doesn’t just show that some SoS evidence doesn’t exist. It also implies that the assessor is not a credible source of evidence on anything.
I think this is dangerous territory Paul
Scenario 1
The appellant says they can only walk 50m
The assessment report says they told the assessor they can walk 200m
The recording shows they told the assessor they can only walk 50m
The assessor says they can walk 200m
You say this implies the assessor is not a credible source of evidence on anything.
Is that the end of it? What further evidence might the tribunal need?
Scenario 2
The appellant says they can only walk 50m
The assessment report says they told the assessor they can walk 200m
The recording shows they did tell the assessor they can walk 200m
The assessor says they can walk 200m
Why is the appellant’s credibility not similarly in question in this case? Why should they not be similarly ‘fixed’ with what was said in the assessment?
If an appellant’s evidence is good and credible and if, perhaps, there is some reasonable medical evidence from those actually involved in treating the appellant, it would be unusual for a tribunal to really want to get into the assessment report at all. I cannot think of the last time I repped in a case where the tribunal said something along the lines of “You told the assessor x” or “This is different to what you said in your assessment”. In fact I cannot remember the last appeal where a tribunal was even interested in the assessment report. But even where a tribunal might want to, then a straightforward explanation suffices - “I’m not a good judge of distance” or “I didn’t really understand the question”.
I really cannot think of a case where listening to what was said in the assessment interview really will (or should be) determinative of how a tribunal decides an issue of fact - there will always be better evidence. And we really do not wanting to be doing anything that might open the door to a claimant being fixed with what was said in an interview/assessment…..
Of course you’re right to say that there needs to be other evidence, and that other evidence may well be more convincing than the assessor’s report. Establishing that the report is wrong doesn’t prove the appellant is right. But in your scenario 1 the recording shows two things: the assessor is unreliable, so their credibility on other contested issues is damaged, and the appellant has always said the same about walking distance, so their credibility is strengthened.
As for scenario 2, any properly advised appellant is not going to mention that there is a recording! I certainly wouldn’t advise putting in a recording routinely, especially as tribunals are going to be very reluctant to add the extra time needed to listen to a recording to the length of the hearing. But I have known tribunals to rely at least in part on the assessor’s report so I still think that in a appropriate case a recording may be useful ammunition.
I think the FtT in this case is wrong to refuse to receive the recording in peremptory terms. It would have been better to invite an explanation of the relevance of the recording and/or a narrowing of which parts of the recording were to be considered. Just because, as caseworkers, we might question the value of the recording that does not mean that its appropriate for judicial power to be used to rule out the entire class of evidence.
I broadly agree with Simon that actually introducing the recording into proceedings is going to be inappropriate in virtually every case (perhaps excepting a case where the client has died or some such and it is the best evidence available). The value (such as it is) of the report is the opinion that it offers on the descriptors. It is not there to be the last word on what the claimant has to say about their own disabilities. So if the assessor’s account of history is inaccurate, what of it? The FtT can, and will, ask its own questions.
However, Paul uses an apposite word here - the recording is “ammunition”. There is some forensic value in showing that the assessor’s report is unreliable because they weren’t paying attention/were dishonest/were drunk and therefore got a bunch of the facts wrong. There can also be a valid concern that a client’s credibility could be attacked if their account before the FtT is vastly different to what they are noted as having told the assessor and you may want to defend your client against this pre-emptively. I think that either of these purposes can be achieved by the threat of introducing the recording. If your submissions give a couple of quotes from the recording and if you say “should the Tribunal wish to consider these issues further, the full recording can be made available”, you are going to achieve your purposes without ever having to actually insist on the FtT listening to the recording.
[ Edited: 3 Dec 2024 at 08:28 am by Elliot Kent ]I’m conscious that I may have taken this debate a long way from Emma’s original case, but it might be of interest if I say what I’m planning to do in the appeal I mentioned in my first post (“The Case of the Non-Existent Husband”). I’m going to put in a submission detailing the important discrepancies between the report and the recording, and upload the recording to MYA. The appeals officer will then have access to the recording and presumably if they are doing their job properly will listen to it. Hopefully they will then put in a supplementary submission saying that the SoS no longer relies on the report. That makes it unnecessary for the tribunal to listen to the recording.
[ Edited: 2 Dec 2024 at 05:32 pm by Paul Stockton ]I’m conscious that I may have taken this debate a long way from BCD’s original case, but it might be of interest if I say what I’m planning to do in the appeal I mentioned in my first post (“The Case of the Non-Existent Husband”). I’m going to put in a submission detailing the important discrepancies between the report and the recording, and upload the recording to MYA. The appeals officer will then have access to the recording and presumably if they are doing their job properly will listen to it. Hopefully they will then put in a supplementary submission saying that the SoS no longer relies on the report. That makes it unnecessary for the tribunal to listen to the recording.
I wouldn’t rate the prospects of either of those things happening. I think that what will happen is that nobody will listen to the recording and/or you may receive directions excluding it.
But I think that it suffices for your purposes that an unsympathetic FtT would then be on notice that it would be impossible for it to make a finding that your client lacks credibility on the basis of inconsistency and/or that the report is generally reliable without practically inviting an appeal to the UT.
So job done - although we are no further forward in terms of establishing an entitlement.
Agree with Elliot regarding FTT being perhaps wrong to refuse out of hand to take the recording as evidence (there are no particular rules as to admissibility of evidence, as we know) - the views I was expressing were really in the context of the opening post, where we’re really left to guess as to why the recording might be of significance in this particular case - I very much understood it as suggesting their being relevant in the generality of cases.
And it was that really that caused me concern and made me want to caution against steps that might - some way down the road - lead to the routine use of recordings. Of course, we’re not going to end up in a position where FTTs spend their time listening to recordings of assessments. But it’s conceivable - were they to be routinely recorded by IAS, Capita etc - that the transcripts could routinely be provided, in the same way transcripts of IUCs are provided in overpayment cases. With the advances in AI and voice recognition word processing software, that really wouldn’t be too difficult.
But yes, if there’s a particular reason why you might want some of the recording in evidence, judicious quotation is the way to go - though, if I were doing that, I’d probably provide a copy of the recording at the outset, rather than saying it could be made available should the FTT wish. I’ve not got a blanket aversion to the use of recordings as evidence. Recently had a case referred in to me at the stage where the UT had directed a permission hearing - the grounds of appeal weren’t fantastic. But was able to get permission and the appeal allowed without a hearing pretty much on the basis of the ROP - and doing just what has been suggested here, quoting appropriate sections and summarising the remainder to show the appellant was not asked questions they really ought to have been (and which their own answers demanded) so that they were denied a fair hearing. And the recording provided to the UT for it to listen to.