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‘financial advantage’ involved so independence of GP reports questioned by FtT
DLA Appeal- The Judge has written that the medical evidence of the 2 specialists was preferred to 2 supporting GP letters (2 different GPs from the same practice) as they were more independent particularly as no financial advantage was involved.
My client’s credibility is also questioned, but that I can deal with, as the discrepencies are not huge given that he struggles to judge distance.
I’m looking for error of law. I am sure I can argue against this, but I wondered if anyone knows of any caselaw please? (tips or previous threads welcome too).
Thanks,
DLA Appeal- The Judge has written that the medical evidence of the 2 specialists was preferred to 2 supporting GP letters (2 different GPs from the same practice) as they were more independent particularly as no financial advantage was involved.
My client’s credibility is also questioned, but that I can deal with, as the discrepencies are not huge given that he struggles to judge distance.
I’m looking for error of law. I am sure I can argue against this, but I wondered if anyone knows of any caselaw please? (tips or previous threads welcome too).
Thanks,
from what you have written its not really one that needs a particular bit of caselaw.
in my opinion this one will come down to the tribunal’s reasons for preferring some of the evidence over others.
as long as the tribunal have clearly explained their rationale behind doing so then the decision will stand.
My suggestion and i would presume you have already would be to get the full written reason for the decision and look at what reasoning is given for the preference if that isnt given properly then thats where the error of law can be
The differences between GP evidence and Consultant evidence tend to be because one sees the client probably more than the other and covers often a wider range of issues and if those none consultant things are important to your client and their case mixing and matching works.
On the financial advantage point i find when they charge Consultants charge far more for evidence than GPs do
Is the Judge suggesting that the GP’s can be bought?
The department pays fees to get GP factual report. As for the GP’s evidence I have cited the followings from the case law:
In CS/773/81 the Commissioner held “It is in the nature of things that a general practitioner who has been regularly seeing his patient is likely to be in a better position to form an accurate view of that patient’s condition than is a medical officer of the Department after a single examination”.
CDLA/810/98 held “an important part of the work of tribunals concerned with social security law relates to the weighing up of medical evidence and the resolution of issues arising out of such evidence. Clearly, in deciding what weight is to be given to a particular piece of evidence, one of the factors may be the amount of contact the person giving the evidence has had with the appellant…Furthermore, a general practitioner will usually have access to a patient’s notes, hospital reports and other material. He or she may have discussed the patient’s problems with other doctors and staff, such as a practice nurse, working in the same practice who have had more contact with the patient.”
It was also held in CIB/1442/96,”The GP is a professional person and as the claimant’s husband pointed our nobody was forcing him to give one answer rather than another.” This was endorsed by another decision CDLA/3337/98, “In sending Dr.G a copy of the appellant’s statement the CAB hoped to obtain his agreement and support. He was however free not to give it. Even if the statement is to be reckoned as a ‘prompt’ this was to a professional man giving his opinion not reciting his lines.”
I hope the above is useful to you.
If the only substantive reason for giving more weight to the consultant reports than the GP reports is this supposed lack of financial advantage then;
a) yes, if it’s in the full statement of reasons it’s an error of law.
b) it does not matter whether the GPs were, in fact, paid for their reports whilst the consultants were not (though even better, of course, if the Judge were factually mistaken on this point) - as has been suggested, there is a clear implication that the GPs’ professional integrity has been undermined by the offer of financial inducement. Something for which there will be not a shred of evidence - take a look at CDLA/2277/2005 on this.
c) as for some general guidance on the weighing of medical evidence - R(DLA) 3/99 amongst others.
Thanks everyone!
I have the statement of reasons and the only reason given for preferring the consultants’ reports (which were requested as part of DLA claim by DWP) is because of the alleged ‘financial advantage’ involved in obtaining the GP’s letters.
I think it is very dodgy reasoning.