Medical Evidence and Decision Makers

Hello All,

This is my first appeal, so nerviously I would welcome any comments….

We are having a lot of cases referred to us where the ESA decision maker is not obtaining factual reports from our clients GP or Consultants via the ESA113.

As an example, Client A who has been migrated from IB to (IB)ESA has a history of eating disorders and it is documented in the bundle (IB85) from previous examinations that they are receiving medical treatment in respect of her physical and mental health. 

Details of GP and Specialist Consultants have also been provided on the ESA50.

Our client undertook an examination with the HCP for 30 minutes and the DM accepted the HCP report of 0 points and made a determination that no limited capability for work exists.  Our clients are telling us that their GPs know their medical history and condition best.  I say that no further medical evidence has been obtained and that the DM is biased to the HCP.

On first appeals the Med 3 certificates are being disregarded with the DMs and the HPCs stating that they bring no significant weight.

Our clients are also saying to us that they have approached their respective GPs to obtain medical evidence and are told that they are only will to report if requested by the DWP.  It seems to be that they are being prevented from being able to present their situation fairly and that the DM is fettering the DM process.

This is my first appeal and I was thinking about going along the lines of :-

1) Not taking into account any other evidence offends Natural Justice and is biased.  DMG 01220

2) The Burden of Proof by the DM to supersede the ESA award has not been discharged because the DM has not seen that all the necessary evidence is brought to light. DMG 01341 (1 R v. Secretary of State ex parte CPAG [1990]; 2 QB540; SS (C&P) Regs, reg 7(1), JSA Regs, reg 24) DMG 01045 states that initially the burden lies with the claimant to prove that the conditions for a claim or application are satisfied but they should do as much as possible to ensure that the claimant has every opportunity to provide all relevant evidence

3) And DMG 01570 that A claimant may argue that a medical report produced for another benefit should be used to decide a claim or dispute. The DM should, if possible, obtain a copy of the report and take it into account when making the decision. i.e. a Med 3 or any previous reports supporting our clients condition.

Presumably I have to convert these into regs, but is this a way to go or have I got it totally wrong?  I was thinking about either perhaps getting a direction from the TS to obtain the medical evidence from GPs etc or writing myself to GPs and obtain that evidence for the TS.

My advice would be to concentrate on the substance rather than the process.  The days of getting decisions overturned on technicalities have largely long gone.  The DWP has a ground to supersede merely on receipt of a medical report from a HCP.  It does not have to rely on a change of circumstances.  However, that is not to say that you should not ask the tribunal to apply its mind to whether there has been any change.  Of course, you should and experience will teach you how.

Try not to get too hung up on the Department’s inadequacies..  They are well known to most tribunals (at least round here).  It’s all about the evidence.  Forget the DWP here.  Most of us don’t expect much from them.  You should write to as many medical people who are treating/ providing care for your client and use that evidence to rebut the DWP’s evidence.  Sloppy evidence gathering by the DWP is a policy matter for it, lobbyists and Parliament.  Tribunals might wish to comment in passing but not much more.  That said, you should certainly point out any deficiencies in the DWP’s evidence and ask the tribunal to give it the appropriate weight.

But, in the final analysis it is simply a matter of the tribunal weighing all the evidence and deciding where the truth lies on the balance of probabilities.  Remember, your best asset is your client.  In the absence of conclusive supporting evidence if he blows his credibility at the hearing (providing that he is not plainly insane) then he’s had it.  You’ll find that as you get more experienced you’ll get more relaxed about the process and find a way of doing things that works for you.  Take it easy, keep caring and good luck.

Dont forget that even if the GP and Consultants will not provide a report or opinion directly to you , you can request the clinic notes and letters (copies) and submit these as evidence, then if the Tribunal need a specific opinion they may request this themselves.

...And do consider other potential sources of evidence (examples could include therapy notes if available/relevant, support workers, nutritionalist, family members, etc).

Hello all,

I am grateful to all your replies and help.  In moving this issue forward, do you think that it would be sensible for me to approach the GP and Hosipital directly and ask for medical evidence?

My client is making cliams that no one seems to belive and my clients only way of proving her statements is with the medical evidence which DWP are not taking up.  She also disputes what was said and agreed at the medical.

I am thinking of asking for a direction from the TS to direct that the DM issue a ESA113 to ‘assist them’ with their decision making this way will not attract a charge for the report.

My client will fall apart at the hearing, she is too scared to read the bundle so I fear for her at the hearing.

In ther mean time I will go through all the descriptors and make representation.

Thanks all, for getting lift off with my first appeal.

Mik
RCJ CAB.

hi mik

yes, i do think you should approach your client’s doctors for medical evidence.

when i was a rep i always thought getting good medical evidence was the best thing i could do for the client in incapacity and disability cases - the tribunal has to weigh up the evidence and so it’s essential there is some weight on your client’s side.

i think it may be good idea to try and get evidence yourself first. if that doesn’t work will give you good grounds to ask tribunal to obtain it.

cheers ros

Yes, write to the doctors for reports.  Some tribunals take the appellant to that part of the IB85 (description of a typical day) and ask him whether there are any inaccuracies.  If yours doesn’t you can, either in written submission or at the hearing.  I, personally, rarely (and never for WCA/PCA appeals) do written subs and prefer to do it verbally on the day.  Its fresh in the tribunal’s mind that way and also tests the appellant’s credibility (which I have done in advance of course – never ask questions of your client at a hearing that you don’t already know the answer to).  You obviously have to do what works for you.  I used to do written subs when I first started, I was so scared of making mistakes - but that’s just inexperience.

Furthermore, tribunals expect appellants to be nervous and will make allowances for that.  Experienced tribunals are usually quite good at distinguishing between nerves and outright evasiveness.  However, tribunals are not infallible and sometimes get it wrong like we all do.

Funny, isn’t it - I take the complete opposite approach from nevip, although possibly due to experience with more awkward/obstreperous tribunal panels in my area. I always do a written submission - that way, a tribunal only has to fail to deal with a (material) argument that I have raised in its statement of reasons and the door is wide open for a set aside or successful appeal to Upper Tribunal. Got caught out like this a couple of times when I started (i.e. - had no way of showing that I’d made a particular argument because of no written sub) and decided it wouldn’t ever happen to me again.

That said, there isn’t a right or wrong way - it’s a matter of judgement and experience. If I was sure of the tribunals in my area and knew they would never take such liberties, then I’d go with oral subs too.

On another tack - and maybe more relevant to the O/P - when obtaining medical evidence for ESA cases, I do a couple of things…..

- provide the GP/consultant/whoever with a copy of Schedule 2 and remove the points associated with each descriptor. Also ensure that there is no reference in the request for evidence to the WCA being a points-based assessment.

- indicate only the activity which the client states they have a problem with, not the specific descriptor that they say applies - then ask the GP/consultant to indicate the descriptor they believe to be most appropriate. When I started out I gave the specific descriptor and invited the doctor to agree or disagree, but this has the disadvantage of a) tribunals occasionally (though wrongly) trying to say that you’ve put words in the doctor’s mouth and b) creating an all-or-nothing scenario where if the GP doesn’t agree with the descriptor your client has chosen, they don’t then have the opportunity of agreeing with a ‘lesser’ descriptor that would have indicated your client should at least have scored some points for the particular activity.

“Funny, isn’t it - I take the complete opposite approach from nevip, although possibly due to experience with more awkward/obstreperous tribunal panels in my area. I always do a written submission - that way, a tribunal only has to fail to deal with a (material) argument that I have raised in its statement of reasons and the door is wide open for a set aside or successful appeal to Upper Tribunal. Got caught out like this a couple of times when I started (i.e. - had no way of showing that I’d made a particular argument because of no written sub) and decided it wouldn’t ever happen to me again”

My colleague does written subs for exactly the same reason.  It just goes to show that even people in the same team can work differently.  There’s more than one way to skin a rabbit.

Absolutely.

I get twitchy if I don’t prepare a written sub and supportive medical evidence certainly helps but ultimately, it generally hangs on the credibility of the client’s oral evidence on the day. If the OP can get the client to the venue I rather suspect the tribunal will very soon understand the extent of the problems and won’t need to ask the client more than a very few questions.

nevip - 20 June 2012 09:25 AM

Yes, write to the doctors for reports.  Some tribunals take the appellant to that part of the IB85 (description of a typical day) and ask him whether there are any inaccuracies.  If yours doesn’t you can, either in written submission or at the hearing.  I, personally, rarely (and never for WCA/PCA appeals) do written subs and prefer to do it verbally on the day.  Its fresh in the tribunal’s mind that way and also tests the appellant’s credibility (which I have done in advance of course – never ask questions of your client at a hearing that you don’t already know the answer to).  You obviously have to do what works for you.  I used to do written subs when I first started, I was so scared of making mistakes - but that’s just inexperience.

Furthermore, tribunals expect appellants to be nervous and will make allowances for that.  Experienced tribunals are usually quite good at distinguishing between nerves and outright evasiveness.  However, tribunals are not infallible and sometimes get it wrong like we all do.

I do written submissions for the reasons listed by others.  its particularly good if you ask for reg 29 for example and the tribunal ignore it in the written reasons.

that being said though i have often wondered about the impact a well delivered oral submission would have on a tribunal on the day. even my submissions though tend to be very factually based and i let the client (hopefully well prepared) tell their story.

it would be great if there was a definitive easy answer to which way is best.

FTT judges also have different preferences. Some really don’t like oral submissions in my experience.

That depends on their content.  My personal experience is that judges will give me some latitude. For PCA/WCA appeals at the outset I will merely outline the relevant descriptors by number, make a brief submission on reg 29 if in issue and, where appropriate, highlight anything important in the medical evidence and any important legal and procedural matters, if any.  I’ve never had a problem with any judge doing that.  What I don’t do is summarize the substantive evidence pertaining to the relevant descriptors.  I leave that to the tribunal to draw out.  Tribunals here tend to know what they are doing.  I will have previously put my client through a mock tribunal (without them knowing) so I know what that evidence is likely to be.

My view is that preparing your client is half the battle.  Of course, if your client fluffs his lines on the day then you have no control over that whether you do a written or verbal submission.  If that happens, you then have the opportunity to put questions to your client, or clarify the evidence, when invited by the tribunal to do so.  However, I always tell clients that if I have nothing to say at the end it means that everything has been covered and that he hasn’t put his foot in it.  And, sometimes, if a client does put his foot in it attempts by the rep’ to drag the case back again will be to no avail, no matter how clever he thinks he is.  You can’t win them all.

I agree. Preparing the client is more than half the battle.

I’m sure we’ve all had that sinking feeling during a hearing where the client does the equivalent of taking a shovel and starting to dig and as you say, an attempt to drag it back can often just make the hole bigger.

I do wish that I could find a fool-proof way, however, from preventing clients from telling the panel how much worse everything is now compared to when the decision was made even when it isn’t. It doesn’t seem to make any difference how often I labour the point before-hand, they still go & do it.

“I do wish that I could find a fool-proof way, however, from preventing clients from telling the panel how much worse everything is now compared to when the decision was made even when it isn’t. It doesn’t seem to make any difference how often I labour the point before-hand, they still go & do it.”

Yes, irritating that isn’t it?

Thanks everyone for all your replies.  I can see and appreciate everyone’s different styles of working and I am sure I will soon develop my own.

TBH I am dreading my first hearing but I know it has to be done.  :)

Will keep you posted.
Mik