Missed medicals

I would be interested in hearing from anyone who has dealt with an appeal on this situation and came up with good arguments or information that I might be able to use.

My client failed to attend one medical examination, the DWP accepted her reasons and continued paying ESA. She missed a second medical. They refused to accept her reasons for not attending it, even though she produced a letter from her GP which confirmed that she had had all her teeth pulled that week and was still in discomfort, plus some detail about the nature of her mental health issues, which include an intense paranoia about germs. The client thought she would catch an infection if she left the house and had contact with other people, especially people who were sick (at the medical assessment centre) while she still had stitches in her gums. She has been wearing gloves since she went to the dentist so as not to get germs in her mouth when she is eating.

The client wanted to attend the medical, but on the day felt too ill and the paranoia got the better of her. Her mother tried to phone the medical assessment centre for her, but kept being put on hold and ran out of credit on her mobile before she could get through.

The DWP statement about why they refused to accept the reason is distinctly poor: 1. she gave her GP two reasons why she didn’t attend, so neither one is plausible (??) 2. she has failed to attend three medicals (but they have only mentioned two, neither the client nor her mother can remember her being asked to attend more than two, and I didn’t know there was a “three strikes and you’re out” rule for ESA.)

I cannot find anything relevant in the Commissioners/UT decisions. I may find some clues in the DM’s guidance but haven’t had time to look at it yet.

Although the decision is a poor one, I am not counting on the tribunal agreeing with me, so I am looking for more to persuade them with.

Her reasons seem acceptable, however why didnt she rearrange the medical examination if she knew she was going to have 4 teeth taken out the same week and she would have known it would cause her problems both physically and mentally?
How many chances someone gets to attend is just at the DM’s discretion as far as I know ( I was a DM 8 years ago). Our area seem to be operating a one strike and your out policy!!

I have looked at the DM’s guidance, it is of some help in that this particular DM doesn’t seem to have followed it! I have drafted a submission for the Tribunal which is mainly based on discussing the DWP’s failure to justify their own decision, and more details about the client’s health issues. The only Commissioner’s/UT decisions on failure to attend a medical concern the largely technical issue of whether the claimant was given adequate notice of the date of the medical examination, and how “seven days’ notice” should be defined. There is nothing on how the DWP should treat medical evidence from the claimant on why they were unable to attend. Perhaps this is because this particular issue is not very problematic. Or is it that no claimants have appealed about it yet?
My client’s appeal is next week. If don’t win it, and it goes to the UT, I will post again on the subject.

Agree completely with Tony.  Well put.

However, could it not be argued here that Reg 23 ESA Regs did not actually apply at the date of your client’s medical because it did not fall to be determined whether she had LCW as Reg 23(1) requires.

Reg 30 ESA Regs which treats you as having LCW only applies where it falls to be determined that you have LCW - see section 8(5) WRA 2007.

Reg 30 stops applying if you are treated as having LCW for some other reason - see Reg 30(1)(b).

Reg 25 ESA provides as follows:

“25.—(1) A claimant is to be treated as having limited capability for work on any
day on which that claimant is undergoing medical or other treatment as an in-patient
in a hospital or similar institution, or which is a day of recovery from that treatment.

...(2) For the purposes of this regulation, “day of recovery” means a day on which a
claimant is recovering from treatment as an in-patient in a hospital or equivalent
under paragraph (1) and the Secretary of State is satisfied that the claimant should be
treated as having limited capability for work on that day.”

In the week of her medical, the client has all her teeth pulled out.  That is arguably “other treatment” in a “similar institution” to a hospital ((ie, a dentist’s) so that Reg 25(1) applies.

She is not admitted overnight at the dentist’s but that’s not necessary to be classed as a hospital in-patient -see DMG 42044:

” 42044: A hospital in-patient includes a claimant who is admitted to hospital for a single day, for example to have day surgery which doesn’t need to involve an overnight stay.  The distinction is with attending an out-patient clinic which would not be regarded as being an in-patient.”

That’s important because you are also treated as having LCW under Reg 25 on any day of recovery.  My reading of 25(3) is that the day of recovery does not have to be spent in the similar institution or hospital, otherwise it would say “a day on which a patient is recovering in hospital” rather than ” a day on which a patient is recovering from treatment…in a hospital”.  In other words the requirement to be in hospital qualifies the treatment not the recovery.

She was recovering from the treatment on the day of her medical which means Reg 25 applied, Reg 30 did not and, consequently, it did not fall to be determined that she had LCW for the purposes of Reg 23.

Reg 25(3) admittedly leaves it to a DM’s discretion as to whether a day is a day of recovery, however, the tribunal can make any decision that the DM could make.  This does not appear to be a case where the DM’s discretion is non-justiciable. 

If the above argument is not correct then Reg 24(b) lists, non-exhaustively, the claimant’s state of health “at the relevant time” as a factor in considering good cause. Relevant time, I’d suggest, should be construed as meaning more than the single day when she is supposed to attend the medical.  And also, if the DM has previously treated missed medicals as good cause ones then no more should be said or inferred about them.

Tom H’s post would have been useful if I’d seen it before the client’s appeal hearing. I’ll bear it in mind for any future similar issue.

Sorry Tony, but yours isn’t helpful. There is actually a reason for the existence of case law.

While it is true that there is a reason for case law the issue needs broadening out a little.  Every adviser has a different style and some have more experience and confidence than others.  There are many ways to skin a cat.  Everyone has to find a way that works for them.  When I first started doing tribunals I was very uncertain although, oddly, never nervous.  So, I used to do written subs, replete with case law, for every hearing I attended.  Experience soon taught me that once case law had been well established on a particular point then quoting it to tribunals was like teaching your grandmother to suck eggs and could grate with some chairs. Not all.

Soon I stopped doing written subs altogether, except the odd one every now and again.  For example I have a cut and paste one using 2 CD’s on why re-assurance can be guidance and supervision for the purposes of DLA, LR Mob.  I do this because tribunals often misdirect themselves on this issue. The first thing I noticed was that my success rate didn’t change.  For the most part I make my points orally at the hearing, quoting case law rarely, except where difficult points of law emerge or simply to remind the tribunal where judicial precedent has for the most part settled in response to a particular issue put to me by the judge, or emerged for the first time during the hearing.

So while case law is obviously important it’s how and when you use it that matters.  Most cases that tribunals hear are what are known as ‘facts and reasons’ cases where the case law is well established and well known and usually not in issue.  The tribunal’s inquisitorial role usually draws the facts out and the reasons the facts have come into being.  An experienced representative, cognisant of the relevant facts of the case with a good knowledge of the law, statute (including case law (and, where appropriate, the common law (case law in other words), where statute is largely absent)) will make sure that the tribunal addresses and deals with all the relevant issues.  That said, there is no harm in a representative regularly using case law as his modus operandi, or until he feels he doesn’t need to any more.

Edited for clarity

Case law is valuable in complex cases which raise issues of law, especially when the law is in flux. For example, probably only full-time Judges can keep up with EU law aspects of the right to reside rules. These are most likely to happen in judge-alone tribunals.

In yer bog-standard ESA/DLA appeals, the sort of thing that might be helpful is the very latest UT decision on the meaning of particular ESA descriptors, or interpretation of what residential care actually amounts to. Remember that all judges and other members are issued with copies of the relevant Sweet and Maxwell volumes and updates and thus ought to be able to find for themselves any case-law that is now well-known (Like Fairey-Halliday, for example, which you should never quotre to a Tribunal these days, unless they show during the hearing that they are unaware of it or its nuances!)

The vast majority of cases turn on their facts. Where a person has to show “good cause” for an act or omission, or the word “reasonable” rears its head, then the Tribunal can make up its own mind what it thinks is good cause etc. This is why the dracft UC regualtions alck those lists of things that ahve to be taken into account when determining good cause. They wre worried that DMs were intrepreting those lists to mean that ONLY things mentioned could be good cause. It is a question of fact: what in a criminal trial would be one for a jury to decide, not a judge.

Just to let folks know, the client won her appeal. The judge said on the statement of reasons, “Having seen and heard Ms X, I am satisfied she had good cause for missing her medical appointment.”
This was from a judge who is known to give claimants a hard time at appeals. However, it probably helped that the client’s mental health issues are apparent. She came to the hearing clutching a bottle of hand sanitising lotion, which she carries everywhere to disinfect her hands and most things she comes into contact with, due to her irrational fear of germs.
    I’m still puzzled as to why missed medicals have never been the subject of a UT appeal. As we all know, the DWP’s decision making standards are less than perfect.

It’s quite simple why these cases have (apparently) never got to the UT. They turn entirely on a question of fact - did the failure have a reasonable cause. In my experience most appeals win, because tribunals tend to be better than DMs at understanding the horrible complexity of ordinary people’s lives.
Of course some of them will have got there. The UT will either have upheld the tribunal’s decision (if it was unfavourable), or have decided the case was so clear-cut that it can make their own decision in favour of the appellant without a rehearing. What it will not do id provide quotable case-law on what is reasonable. That’s because no two people will ever agree in every case what is reasonable, because what is reasonable is probably very personal to the individual claimant, and once you start trying to define what is reasonable you risk implying that anything else cannot be reasonable.

The last explains why the draft UC regulations don’t include factors to be taken into account in deciding what is reasonable. It becomes too prescriptive.