Dr Who? or PIP appeal hearing adjourned for an EMP’s report to be obtained.

Has the Judge has made Direction to the effect that HMC&TS; should obtain amedical report?

I would seek out why a expert in mental health who knows the appellant effectivelly turned up as a witness and was not allowed to give evidence.

Pete C - 10 September 2015 12:11 PM

Has the Judge has made Direction to the effect that HMC&TS; should obtain a medical report?

Peter, Will be picking decision notice up later today (poor souls run off their feet) and will let you know.

ikbikb - 10 September 2015 12:21 PM

I would seek out why a expert in mental health who knows the appellant effectively turned up as a witness and was not allowed to give evidence.

ikbikb, so did the CPN !! Your point was put to the Judge responded “they couldn’t make their decision on the back of and old envelope”, which I’m still trying to figure out what the hell they’re on about.

Off to sit in front of the ‘wise ones’ again; funny this PIP appeal has 2 x F2F reports…...never rains….buses etc

Afternoon Mick!,

Have had three separate judges now state that they do not have power to directly request an EMP report they can only request that the Department request one but are not able to go further than that. Waiting on our region to organise its long over due TUG to raise this and/or get any info on how many appeals are being adjourned for attempts at getting EMP visits.

Sounds like a bit of fudging going on here.  While it is true that s80 of the Welfare Reform Act 2012 and reg 4 of the PIP Regs require an assessment be carried out, there is nothing in those regulations (or the Act) that requires that the assessment be a face to face assessment.  As long as some sort of assessment has taken place then the tribunal is required to stand in the decision maker’s shoes and do its own.

That said, the tribunal is perfectly at liberty to request an EMP report and tribunals often do.  A direction under rule 6 of the Tribunal Procedure Rules can be issued and note, it is a direction and not a request, so the DWP cannot just ignore it and can be brought into contempt if it does.  However, if the DWP do not comply it can be forced to attend a hearing and give evidence as to the terms of its contractual agreement with any given provider and explain why it can’t comply with the direction. 

And, a tribunal should not refuse to allow the appellant or the rep’, to make oral submissions at an evidential hearing.  Witnesses giving evidence (such as the CPN) will be subject to the tribunal’s discretion (exercised judicially of course).  However, once, after hearing submissions, the tribunal decides to adjourn, it is not obliged to take any further evidence because that opportunity will arise at the re-convened hearing.

Grunkle - 11 September 2015 12:36 PM

Afternoon Mick!,

Have had three separate judges now state that they do not have power to directly request an EMP report they can only request that the Department request one but are not able to go further than that.

The Decision Notice Reads; The clerk shall arrange for the Appellant to be examined by an Examining Medical Practitioner.

Judge stated that he’d checked with ‘Senior Judges’ that they’re still able to access EMPs. Definitely going on the next TUG agenda

Will keep you posted

clearly I golf date to keep, a very senior Judge when the listings were running late,  cancelled the earlier hearing as we had a CPN with us, and she refused to give up such a rare opportunity to get specialist advice from some one who knew the claimant. also unless something exceptional the specialist evidence should always carry more weight, than a EMP, again I say clearly golf or something else beckoning.

I had this very issue at a PIP tribunal a few months ago.

When the judge said she would issue a direction that an EMP assessment be arranged by DWP within 4 weeks, the DWP attending officer said he didn’t think that would be possible and the judge asked if this meant he thought she couldn’t make such a direction.  We agreed that the direction could and should be made although it was unlikely the timescale would be met.

After several months, a cancelled HCP appointment and the district judge directing that a further date for a hearing should be set due to the extended delay (DJ wouldn’t have known about the cancelled appt), the claimant had the assessment and is now very happy with his award of PIP - without the need for a further tribunal hearing.

Continuing saga…..

This is from the minutes form our latest TUG meeting held on 26/10/2015

2. What is the position regarding adjournments to obtain so-called EMP reports in PIP tribunals? We have been told by a Presenting Officer that once the DWP has made a decision on a PIP claim, they are unable to refer the claim back to ATOS to obtain a new face-to-face assessment. I was personally told this by a PO at a tribunal where the original ATOS report was considered inaccurate. However, on another occasion where there was no report done for the claim, the tribunal adjourned to obtain an EMP report. There was no PO at that tribunal. We are seeing more PIP claims being decided negatively without a PIP assessment so the issue of adjourning for an EMP report may become more frequent.

DTJ: from my experience it appears to be the opposite. The Judiciary are able to obtain and request an EMP if necessary. The submissions do hold copies of the medical assessment. There has not been an increase in adjournments for this reason.

Then this came in from the Tribunal which started this thread…...thank crunchy its Friday people

What was also discussed at that TUG meeting although the minutes don’t cover it very well was what seems to be the increasing use of adjournments (in my experience by certain judges only) for further medical evidence.  I made the point that it seemed some tribunal medical members in particular were very reluctant to proceed unless they had GP records.  I felt they were acting like they would in medical practice before they made a clinical decision or before referring to another specialist, when the WCA or PIP assessment is ultimately a legal test based upon probabilities not certainties.  They seem to have forgotten that a decision only has to be made on the balance of those probabilities (whereas in medical practice the threshold for decision making is likely to be higher).  We all know that there is no evidential rule requiring corroboration of evidence.  Re the particular question of this thread, it was unfortunate that no one from your org was able to make it to the meeting (that’s not a criticism - it was mentioned at the meeting that your rep had been delayed) as the short response from the judge could have been challenged better.

Update on initial post…..

And the plot thickens. Client received letter from HMCTS (copy attached)

CPN on A/L so I agreed to attend to monitor questions as decision under appeal May 2015

Doctor duly arrived and launched into questions about DLA ???

Stopped the doctor and asked what form he was completing…..and sure enough he’d been sent a DLA medical assessment form.

The doctor gamely tried to continue, “It’s a similar benefit so we’ll just fill it in eh?” until he was politely shown the door.

And to cap it all he was employed by Maximus. Shame the PIP assessment provider for NE England is ATOS

Can this client get any worse service from our caring sharing DWP?

The plot sickens…..

This is really handy; I’ll be seeking directions for an assessment to be carried out next week.

So they’ve sent an ESA assessor to complete a PIP assessment? With a DLA form.  What a mess.

Just noticed this case, CPIP/3544/2015, where the FTT’s error in law was assuming that they could not direct a medical assessment where DWP had only done a paper-based consultation:

The power of the FTT to direct a medical assessment
29.  This appears in an amendment to schedule 2 to the Tribunal Procedure Rules (First-Tier Tribunal) (SEC) Rules 2008 (the procedural rules). 
[...]
35. Accordingly in an appeal against a PIP decision relating to issues of entitlement the FTT has the power to direct that what is described as a medical examination and performed by a health care professional, take place.