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(PIP) Be VERY careful what you ask your GP for

FlorineFlorine Member Posts: 37 Connected

We've just received the Statement of Reasons for my caree's appeal - it was very illuminating.

Brief history: caree with a fluctuating condition transferring from DLA to PIP, originally awarded zero points in both categories.  Certainly deserved 12 points in the mobility category as unable to mobilise more than 20 metres.  Caree (C) also housebound and therefore couldn't attend the appeal.  First appeal session adjourned for non-attendance: tribunal directed DWP to submit paperwork for previous DLA and ESA assessments (they didn't); directed us to submit evidence from GP plus C's medical records.

I wrote the request to the GP, hoping to give her some indications of the points we needed her to address: she was very keen to help.  Unfortunately, she misunderstood the descriptors, and what she wrote was not very helpful.  I winced when I saw it, but because the tribunal had directed us to submit it (and we were very near the deadline, so had no time to revise it) I believed I was obliged to send it in.  GP's comments were that C in the past decade could "rarely" walk 200 metres, and that she "often" requires a wheelchair to go any distance.

As I've probably pointed out on here before, GPs are rarely in a position to comment on how the PIP descriptors affect a patient's life, and this is an excellent example of how a little knowledge can be dangerous.  She has no real idea of how far C can walk, having never seen her walk further than from the surgery waiting-room to her office, or how her condition affects her ability e.g. to prepare meals, etc.  She'd obviously read an overview of the PIP process and decided that although she perhaps couldn't commit to saying that C couldn't walk 20 metres, confirming that she couldn't manage 200 metres would be enough, because after all, 200 metres is the limit beyond which you can't claim, isn't it?  As a professional person, and clearly being reluctant to commit herself to anything she couldn't be certain was true, she was over-generous in her estimation of how far C might be able to walk.  So her "evidence" actually contradicted, or at least undermined, C's case, indicating the possibility that she might on occasions being able to walk 200 m, and didn't necessarily always need to use a wheelchair to go out.

Result: at its second session (again unattended), the tribunal found that C was entitled to standard rate mobility because her ESA had her in the Support Group as being unable to walk more than 50 metres - but not the high rate, which she should have had.  She's now gone over pension age, so can't put in a fresh PIP application, but is stuck with this low award for the rest of her life - or at least until such time that the Government moves the gateposts again and decides to reassess even the older claimants.

So, if you can, be very careful what you submit from your GP. It's difficult, but if you have time and the opportunity, go over it with a fine-tooth comb and see if you can get it amended if there's anything that might harm your case.  Hugely difficult given the pressure on GPs to do other things, though.

Replies

  • pollyanna1052pollyanna1052 Member Posts: 1,942 Disability Gamechanger
    sorry to hear how wrong it went.
  • wilkowilko Member Posts: 2,091 Disability Gamechanger
    Hello, yes you have to be proactive in your health care ect. For example I had a unexpected four day stay in hospital last year, my discharge notes stated I could walk 100 meters using a stick. After contacting the ward clerk who did her best to contact the author of the report many weekly phone calls a consultant phoned me and after explaining the mistake and reasoning I needed it corrected the mater was resolved and an updated letter with correct distance  mentioned sent to myself and GP. Had you spotted the error and contacted your GP I am sure this could have been amended and your award given .
  • bekindalwaysbekindalways Member - under moderation Posts: 69 Connected
    @Florine i'm sorry to hear that you feel that way about your GP.   I can only imagine your frustration and disappointment.

    To place a title on here is suggestive that 100% of doctors do not understand any persons illness.  That I am afraid to say is inconsistent with the valuable and supportive work doctors do....... yes, I include my own. (Since retired but transferred to someone else who has a similar understanding)

    I can only try to explain my own circumstances....  it is not about my doctor.... it is ALL about the doctors surgery from the lowly, yet indispensable receptionists who get grief from people.. (me included on two occasions....over 10 years) 

    Please try not to judge doctors in general on here.  Your comment will deter some from talking with honesty and frankness to their own doctor, in the belief that your comment means that all doctors are the same....  this isn't true on any level.

    I genuinely wish you well and whilst I am not qualified to give advice, I would urge you to speak to a doctor within your surgery, who understands the illnesses you have and their impact on your daily living and/or mobility. 

    In fairness, not all doctors are versed to understand the PIP system.  Please therefore don't blame them for any statement they made. You would have been given a copy like others. You will have read it and forwarded to the DWP as part of your evidence.     So please try if you can, not to tar all GP's with the same brush.  

    Mine and others in my local practice are truly amazing.

    Best wishes xxx
  • mikehughescqmikehughescq Member Posts: 4,004 Disability Gamechanger
    Extremely sorry to hear this @Florine but your post is an excellent example of why there are very very limited circumstances in which a claimant should approach their GP. Have you explored an application for leave to appeal to the UT? Most tribunals err in law in some way so have an adviser cast an expert eye over it as finding an error of law is now the only route for you to open the errors of fact. 

    One further observation. You ARE actually obliged to present all relevant evidence so you had no choice but to submit the letter. Again this is an excellent reason as to why people need face to face advice and a detailed assessment of the merits if they’re case before attempting to obtain further evidence.
  • skullcapskullcap Member - under moderation Posts: 182 Courageous
    Florine said:

    We've just received the Statement of Reasons for my caree's appeal - it was very illuminating.

    Brief history: caree with a fluctuating condition transferring from DLA to PIP, originally awarded zero points in both categories.  Certainly deserved 12 points in the mobility category as unable to mobilise more than 20 metres.  Caree (C) also housebound and therefore couldn't attend the appeal.  First appeal session adjourned for non-attendance: tribunal directed DWP to submit paperwork for previous DLA and ESA assessments (they didn't); directed us to submit evidence from GP plus C's medical records.

    I wrote the request to the GP, hoping to give her some indications of the points we needed her to address: she was very keen to help.  Unfortunately, she misunderstood the descriptors, and what she wrote was not very helpful.  I winced when I saw it, but because the tribunal had directed us to submit it (and we were very near the deadline, so had no time to revise it) I believed I was obliged to send it in.  GP's comments were that C in the past decade could "rarely" walk 200 metres, and that she "often" requires a wheelchair to go any distance.

    As I've probably pointed out on here before, GPs are rarely in a position to comment on how the PIP descriptors affect a patient's life, and this is an excellent example of how a little knowledge can be dangerous.  She has no real idea of how far C can walk, having never seen her walk further than from the surgery waiting-room to her office, or how her condition affects her ability e.g. to prepare meals, etc.  She'd obviously read an overview of the PIP process and decided that although she perhaps couldn't commit to saying that C couldn't walk 20 metres, confirming that she couldn't manage 200 metres would be enough, because after all, 200 metres is the limit beyond which you can't claim, isn't it?  As a professional person, and clearly being reluctant to commit herself to anything she couldn't be certain was true, she was over-generous in her estimation of how far C might be able to walk.  So her "evidence" actually contradicted, or at least undermined, C's case, indicating the possibility that she might on occasions being able to walk 200 m, and didn't necessarily always need to use a wheelchair to go out.

    Result: at its second session (again unattended), the tribunal found that C was entitled to standard rate mobility because her ESA had her in the Support Group as being unable to walk more than 50 metres - but not the high rate, which she should have had.  She's now gone over pension age, so can't put in a fresh PIP application, but is stuck with this low award for the rest of her life - or at least until such time that the Government moves the gateposts again and decides to reassess even the older claimants.

    So, if you can, be very careful what you submit from your GP. It's difficult, but if you have time and the opportunity, go over it with a fine-tooth comb and see if you can get it amended if there's anything that might harm your case.  Hugely difficult given the pressure on GPs to do other things, though.

    Having it amended will result in both reports being sent to the Tribunal, the first one and the amended one. Also, and this is what the Tribunal will be looking for, will be the letters/telephone conversation from the claimant to the GP in trying to suggest what the GP should say.
    Sometimes it is better not to contact your GP at least that way there can be no negative information passed over. 
  • mikehughescqmikehughescq Member Posts: 4,004 Disability Gamechanger
    Er, no.

    If you obtain GP evidence then it will be sent to you as claimant. It’s then your choice what you do with it. The GP won’t be sending it anywhere else. However, if you elect to not submit it to HMCTS and a tribunal subsequently request you obtain your medical records then you most certainly have an issue which will need to be addressed.
  • FlorineFlorine Member Posts: 37 Connected
    edited April 1
    Extremely sorry to hear this @Florine but your post is an excellent example of why there are very very limited circumstances in which a claimant should approach their GP. Have you explored an application for leave to appeal to the UT? Most tribunals err in law in some way so have an adviser cast an expert eye over it as finding an error of law is now the only route for you to open the errors of fact. 

    One further observation. You ARE actually obliged to present all relevant evidence so you had no choice but to submit the letter. Again this is an excellent reason as to why people need face to face advice and a detailed assessment of the merits if they’re case before attempting to obtain further evidence.

    Thanks, Mike.  Sorry for the delay in replying, but I'm not getting notifications on this thread, and didn't realise there were unanswered replies.  I haven't "explored" the application for leave to appeal yet, but was certainly considering it, although what effect Covid-19 has had on all that I dread to think.  I don't currently have an adviser, and am not too sure where to turn on that front, since a lot of the advice-giving organisations don't appear to be qualified to deal with UT cases.  I'm assuming that CAB won't be able to help - and will probably be overrun anyway at the moment?

    Thanks also for the confirmation that we were obliged to submit the evidence - that was what I thought, so I don't understand how the DWP were able to withhold their paperwork which, as I mentioned on another thread I think, included a re-reconsideration which gave C 12 points on personal care instead of the 7 or whatever she had previously.  I wondered if a decision taken without reference to the DWP's paperwork might itself be counted as a error of law.

  • IanHainesIanHaines Member Posts: 26 Courageous
    My GP has done such incredible reports/letters for me, during benefit application traumas (I don't call them processes), that my actual welfare advisor asked for the GP's permission to print a copy out, without names or addresses showing, and PUT IT UP, IN THE WELFARE ADVICE CENTRE as a perfect example of how GP's reports/letters should be!  The advisor tells me that claimants often photograph the one on the wall and show it to their own GPs, in the hope that the same approach could be taken, to accompany their forms!
  • skullcapskullcap Member - under moderation Posts: 182 Courageous
    IanHaines said:
    My GP has done such incredible reports/letters for me, during benefit application traumas (I don't call them processes), that my actual welfare advisor asked for the GP's permission to print a copy out, without names or addresses showing, and PUT IT UP, IN THE WELFARE ADVICE CENTRE as a perfect example of how GP's reports/letters should be!  The advisor tells me that claimants often photograph the one on the wall and show it to their own GPs, in the hope that the same approach could be taken, to accompany their forms!
    I am so surprised although it depends on it's contents. A GP would not normally (unless they lived with you) know how your life is impacted with reference to the PIP descriptors. Anything that you describe to the GP is just that - 3rd hand hearsay evidence which may or may not be true. If a GP does describe issues it would normally start with - My patient tells me......
  • mikehughescqmikehughescq Member Posts: 4,004 Disability Gamechanger
    Florine said:
    Extremely sorry to hear this @Florine but your post is an excellent example of why there are very very limited circumstances in which a claimant should approach their GP. Have you explored an application for leave to appeal to the UT? Most tribunals err in law in some way so have an adviser cast an expert eye over it as finding an error of law is now the only route for you to open the errors of fact. 

    One further observation. You ARE actually obliged to present all relevant evidence so you had no choice but to submit the letter. Again this is an excellent reason as to why people need face to face advice and a detailed assessment of the merits if they’re case before attempting to obtain further evidence.

    Thanks, Mike.  Sorry for the delay in replying, but I'm not getting notifications on this thread, and didn't realise there were unanswered replies.  I haven't "explored" the application for leave to appeal yet, but was certainly considering it, although what effect Covid-19 has had on all that I dread to think.  I don't currently have an adviser, and am not too sure where to turn on that front, since a lot of the advice-giving organisations don't appear to be qualified to deal with UT cases.  I'm assuming that CAB won't be able to help - and will probably be overrun anyway at the moment?

    Thanks also for the confirmation that we were obliged to submit the evidence - that was what I thought, so I don't understand how the DWP were able to withhold their paperwork which, as I mentioned on another thread I think, included a re-reconsideration which gave C 12 points on personal care instead of the 7 or whatever she had previously.  I wondered if a decision taken without reference to the DWP's paperwork might itself be counted as a error of law.

    If DWP withheld paperwork and that can be evidenced then that’s more grounds for a set aside than an error of law.
  • skullcapskullcap Member - under moderation Posts: 182 Courageous



    If DWP withheld paperwork and that can be evidenced then that’s more grounds for a set aside than an error of law.
    But surely only if it is relevant to the appeal in question? Or are you suggesting that if the DWP hold evidence in another file for another benefit or even a previous or earlier face to face assessment they are required to disclose all of it?

    If that is the case then there must be thousands of appeals that have gone through the system where for example the DWP had failed to disclose a previous DLA claim and award or maybe an ESA one. Maybe there is relevant evidence in say a claim for Industrial Injuries from years ago that might also have been relevant
    I do wonder where you would want to draw the line. 

  • FlorineFlorine Member Posts: 37 Connected
    skullcap said:



    If DWP withheld paperwork and that can be evidenced then that’s more grounds for a set aside than an error of law.
    But surely only if it is relevant to the appeal in question? Or are you suggesting that if the DWP hold evidence in another file for another benefit or even a previous or earlier face to face assessment they are required to disclose all of it?

    Ah yes, set aside.  I believe we were out of time for that anyway.

    The re-reconsideration *would* be relevant: it was in the bundle of C's paperwork that the DWP were supposed to have submitted to the tribunal, but didn't, and the only reason I know about it was because we submitted a subject access request for the same papers once it became obvious that the DWP weren't going to comply.  It was dated inbetween the two tribunals, but unfortunately, it didn't arrive until after the second tribunal.

  • skullcapskullcap Member - under moderation Posts: 182 Courageous
    Florine said:



    Ah yes, set aside.  I believe we were out of time for that anyway.

    The re-reconsideration *would* be relevant: it was in the bundle of C's paperwork that the DWP were supposed to have submitted to the tribunal, but didn't, and the only reason I know about it was because we submitted a subject access request for the same papers once it became obvious that the DWP weren't going to comply.  It was dated inbetween the two tribunals, but unfortunately, it didn't arrive until after the second tribunal.

    So the first you knew about it was via FOI request?
    I can't see that every claimant should have to go to that length. If that was the case all of the evidence, most of it relevant and some reasonably recent (within 5 years) that is contained in previous benefit claims and award should be obtained? I would be surprised that the DWP hold files going back more than 12 months.
  • mikehughescqmikehughescq Member Posts: 4,004 Disability Gamechanger
    A late set aside application is perfectly possible.
  • worried33worried33 Member Posts: 386 Pioneering
    edited April 8
    @Florine i'm sorry to hear that you feel that way about your GP.   I can only imagine your frustration and disappointment.

    To place a title on here is suggestive that 100% of doctors do not understand any persons illness.  That I am afraid to say is inconsistent with the valuable and supportive work doctors do....... yes, I include my own. (Since retired but transferred to someone else who has a similar understanding)

    I can only try to explain my own circumstances....  it is not about my doctor.... it is ALL about the doctors surgery from the lowly, yet indispensable receptionists who get grief from people.. (me included on two occasions....over 10 years) 

    Please try not to judge doctors in general on here.  Your comment will deter some from talking with honesty and frankness to their own doctor, in the belief that your comment means that all doctors are the same....  this isn't true on any level.

    I genuinely wish you well and whilst I am not qualified to give advice, I would urge you to speak to a doctor within your surgery, who understands the illnesses you have and their impact on your daily living and/or mobility. 

    In fairness, not all doctors are versed to understand the PIP system.  Please therefore don't blame them for any statement they made. You would have been given a copy like others. You will have read it and forwarded to the DWP as part of your evidence.     So please try if you can, not to tar all GP's with the same brush.  

    Mine and others in my local practice are truly amazing.

    Best wishes xxx
    Agreed, people seem to be very negative about GPs on here, and they shouldnt all be tarnished with the same brush, my current GP and my old GP have been very good to me, whilst consultants seemed to be just in a rush to discharge me, its important if you want your GP to understand your conditions, to keep in touch with them regurly, and always keep using the same GP instead of seeing different ones every time, but even then a GP might have their own opinion on what can be managed, and professionally they cannot lie.

    When I gave my GP the form to fill in that was supplied by a welfare rights group (the one that confused poppy), I didnt ask my GP to recommend specific descriptors, the GP picked out the ones based on her medical opinion and knowledge of my well being. 

    What surprised me with this appeal though, is that the DWP were asked to supply evidence, they refused, and it was simply acceptance of the refusal, as that was to me a warning sign that the DWP perhaps wouldnt to submit as the evidence would have supported the claimant.  So I would have pushed that regardless of deadlines.
  • mikehughescqmikehughescq Member Posts: 4,004 Disability Gamechanger
    I’d ask people to re-read the title of the thread perhaps. No-one is being “very negative” about GPs. The suggestion is, as per the title, to “be careful”. Regardless of subsequent posts I think the original point stands. It’s also worth saying that’s couple of anecdotes about great GPs are just that. A couple of anecdotes. No-one is tarnishing all GPs. 

    However, the general point is that far too many claimants wrongly assume that evidence from their GP will be good enough and far too many GPS submit evidence that is either sub par; plain inaccurate or unintentionally completely unhelpful. That holds true even when the GP in question is lovely and very professional and so on. 
  • worried33worried33 Member Posts: 386 Pioneering
    edited April 8
    One could argue though that far too many assume it wont be useful, and so dont even try to get it from their GP.  The argument can be made both ways. 

    On a site like this, it will be loaded with negative experiences, we wont hear from the many people that claim PIP, and get an award without hassle, and those people may include who get good supportive evidence from their GP's.  So I do think its wrong to be telling people that its a majority experience because none of us know that.

    I agree be careful in just blindly supplying that evidence, read it first to make sure it supports your case, if it doesnt, then dont submit it.
  • mikehughescqmikehughescq Member Posts: 4,004 Disability Gamechanger
    @worried33 I’m in my 4th decade of welfare rights advice and management. I have contacts right across the UK and I have worked across 4 very different geographical regions. I can assure you that 48% of successful disability benefits cases are accompanied by medical evidence but 52% of successful cases are accompanied by none at all. They’re wholly reliant on well explained anecdotal evidence. So, whilst you’re quite right that a site like this is unlikely to be loaded with positive outcomes, the reality is that most of those cases don’t request or have any medical evidence at all. 

    The most commonly requested medical evidence is GP evidence but it’s only really of use in 3 instances. Where a claimant has reduced insight e.g. mental ill health or learning disability, or. where medical records reveal something. The latter is rarely requested by claimants. There is plenty of strong anecdotal experience that GP evidence alone rarely results in an award even when it is good or supportive. 

    If you’d like to read further evidence on the point take a look at the Work and Pensions committee report on the experience of assessments. You’ll drown in stats to some extent but they support my point and deal explicitly with where supporting evidence comes from. 

    One final point. With all due respect claimants cannot pick and choose their evidence. You can’t withold evidence if it doesn’t say what you want. There are 2 very clear reasons for that. 

    1 - if your medical records are requested at any point it will soon be spotted that you requested a letter but that letter doesn’t appear in the evidence. You’ve instantly undermined your case by looking like you have something to hide. It’s a common mistake.

    2 - the tribunal procedure rules require that all parties submit what they have. 

    Brings us back neatly to the original point. Don’t seek evidence because someone knows you or is likely to be supportive. Identify the gaps in your case and decide what will fill the gap. Most often it’s anecdote. 

  • worried33worried33 Member Posts: 386 Pioneering
    edited April 8
    Your point #2 is interesting because someone on here posted the DWP refused a tribunal request for evidence and then the tribunal simply moved on from the request.

    I do agree with most of what you just said, if the case is strong enough without GP evidence then it may not be needed, but thats different to a blanket statement telling people to never get their evidence from their GPs because its always going to be useless, some of us know the sort of information we would need rather than asking for silly things like confirmation of medication and diagnosis which wouldnt be of much use.

    On your point #1, legal representative's will commonly pick and choose evidence they use to support their cases in courts, its common practice in the uk legal system, and indeed people I personally know who work for welfare organisations will advise their clients the same, that doesnt mean I think you wrong, its just interesting you disagree with that, if the tribunal finds that a letter was requested, it doesnt mean anything unless they were specifically told that letter had evidence supporting the DWP case.  Otherwise they cannot make assumptions, as cases are supposed to be decided on facts not assumptions.  A letter that isnt supportive isnt necessarily the opposite, it could just be the information provided is deemed not relevant and so doesnt get used.  If I asked my gp for a letter and it was something stupid like just a list of my medication I would probably not supply it, as I can just show my medication to the visiting HCP on the f2f.
  • mikehughescqmikehughescq Member Posts: 4,004 Disability Gamechanger
    Apologies for the long response. 

    With regard to my point 2. Yes, not uncommon and always needs challenging. 

    It's important to understand that there are significant differences between criminal cases and the conduct of tribunals. 

    Firstly, the burden of proof is completely different. 

    Secondly, they are governed by separate legislation; guidance and rules. What happens in a court room has no bearing on what happens with social security appeals. That said, the prosecution in a criminal court case is obliged to disclose all relevant evidence to the defence and, again, often get pulled for not doing so (albeit often many years later on appeal). The general principle stands. You must disclose what you have. It's been a principle of public law since the year dot and is enshrined into legislation in many jurisdictions.

    You can find the tribunal rules at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/488476/consolidated-sec-rules.pdf Rules 2, 7, 14 and 15 are relevant but especially 2 as the over-riding principles trump everything. The Tribunal Bench Book for panel members reinforces all of this. 

    Generally, where you end up is that:

    1 - you can't submit medical evidence which has been requested without also enclosing the request you made in the first place. Well, you can, but a failure to show what you asked will nowadays always downgrade the weight given to the resulting evidence. 

    2 - you can't pick and choose your evidence. If you do so then you're risking action under rule 14 on the basis of a failure to comply with rule 2. It has happened and there are multiple UT decision on the point. 

    3 - yes, there are still organisations and advisers who proceed on the basis that you can pick and choose your evidence. That's exactly why there is UT caselaw on the point i.e. it was spotted for some reason e.g. no request letter included or medical records revealed a request. I've yet to see a piece of caselaw where it was upheld as good practice. Some advisers see tribunals as an adversarial game. Tribunals however are inquisitorial and don't welcome such an approach. 

    Your assertion that cases are decided on facts not assumptions is incorrect. Tribunal cases are determined by facts which are established "on the balance of probabilities" i.e. what is more likely than not to be true. Tribunals are also allowed to draw inferences where it's reasonable to do so. If you fail to submit medical evidence which puts your case in a poor light and fail to mention it it's hardly unreasonable a tribunal could conclude they're not getting the full picture. 

    Similarly, there are still advisers who proceed on the "describe what you're like on your worst day" approach. It has been held to be fraud in 2 cases! Nuff said really. 

    4 - your statement that 

    "A letter that isnt supportive isnt necessarily the opposite, it could just be the information provided is deemed not relevant and so doesnt get used.  If I asked my gp for a letter and it was something stupid like just a list of my medication I would probably not supply it, as I can just show my medication to the visiting HCP on the f2f." 

    is about your decisions/choices but not about the law. It's also something of a straw man. We're not talking about where you asked for lists of medication. We're always been talking about the specific scenario whereby a claimant requests supporting evidence from a GP. 

    5 - I agree that 

    "if the case is strong enough without GP evidence then it may not be needed, but thats different to a blanket statement telling people to never get their evidence from their GPs because its always going to be useless" 

    but then nobody from the original poster (OP) onwards on this thread has made any such blanket statement! Another straw man argument.

    The OP said to be careful what you ask for because, whether or not you know what you want, you have no control over what comes back. The fact that some people do get brilliant letters back takes nothing from the point that it's rarely the best way to go; you have limited control over what comes back and if you don't then disclose it you immediately create a potential credibility issue. 
  • worried33worried33 Member Posts: 386 Pioneering
    edited April 9
    thanks for the info :)

     wont comment further as we be going in circles.
  • FlorineFlorine Member Posts: 37 Connected
    A late set aside application is perfectly possible.

    Oh really?  I hadn't realised that.
  • FlorineFlorine Member Posts: 37 Connected
    worried33 said:
    I agree be careful in just blindly supplying that evidence, read it first to make sure it supports your case, if it doesnt, then dont submit it.
    Not an option in this case, since the tribunal had ordered it.  Or so I thought.  The DWP obviously decided differently.
  • FlorineFlorine Member Posts: 37 Connected

    2 - the tribunal procedure rules require that all parties submit what they have. 

    Mike, many thanks for carrying on with this in my absence :)   Yes, ^ that was exactly what I'd assumed.  Yet the DWP ignored it, not submitting evidence which would if anything have supported our case.  It doesn't seem fair to me that they can get away with that.
  • worried33worried33 Member Posts: 386 Pioneering
    Mike can I ask you to please point to where in the document it states that any evidence acquired that hasnt been specifically asked for must be presented as you quoted you cant pick and choose your evidence, I passed the document on to the welfare group and they told me there is no reference to it, I checked it as well myself and there isnt anything there saying that.

    Thank you.
  • mikehughescqmikehughescq Member Posts: 4,004 Disability Gamechanger
    edited April 10
    Forgive my cynicism but you did say 
    thanks for the info :)

     wont comment further as we be going in circles.
    and now you appear to be playing me off against some un-named people in an un-named “welfare group” in order to prove that I am wrong by asking me to show where something is in a document when I didn’t actually say it was in the document. In other words a “straw man” once again!!! 

    More than happy to continue the discussion, not least because the OP has clearly found bits of it useful but... without my permission, you appear to have wilfully misquoted/misrepresented me in another forum. 

    It looks like a deliberate attempt to cause reputational damage seeing as I effectively have no right to reply to an accusation I said something which, if you re-read the relevant post above, I clearly did not. You appear to be quite content to post elsewhere that I did. 

    For the purposes of clarity what I said was that the procedure rules require you to disclose what you have. I also said that there has long been a public law principle which says the same. 

    So, to get specific...

    Rule 2 establishes the over-riding principle 

    Overriding objective and parties’ obligation to co-operate with the Tribunal
    2.—(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.

    Note the words “obligation to co-operate” and the words “fairly and justly”. Note that it applies to all parties.

    Then we jump to rule 24

    Responses and replies(c)
    24... 4) The decision maker must provide with the response—

    (b) copies of all documents relevant to the case in the decision maker’s possession, unless a practice direction or direction states otherwise”

    So, the most common interpretation of this is that a decision maker must disclose what they have. If the tribunal is to comply with rule 2 then so must other parties.

    24... (6) confuses this slightly by saying 

    (6) The appellant and any other respondent may make a written submission and supply further documents in reply to the decision maker’s response.

    but the “may” here isn’t referring to a choice about whether to submit evidence. It’s just saying that once you have the DWPs argument you can choose to reply further and put in further evidence. 

    We can then move swiftly forward to 37

    Setting aside a decision which disposes of proceedings
    37.—(1) The Tribunal may set aside a decision which disposes of proceedings, or part of such a
    decision, and re-make the decision, or the relevant part of it, if—
    (a) the Tribunal considers that it is in the interests of justice to do so; and
    (b) one or more of the conditions in paragraph (2) are satisfied.
    (2) The conditions are—
    (a) a document relating to the proceedings was not sent to, or was not received at an appropriate time by, a party or a party’s representative;
    (b) a document relating to the proceedings was not sent to the Tribunal at an appropriate time;

    which spells out that a decision can be set aside if a document is missing. Whilst this is most often used by claimants it’s easy to forget that as 37(2)(a) notes it’s an option also available to DWP. Thus the words “a party”.

    So, is it explicitly in there? No, absolutely not, but then nor did I say that it was and my previous posts above will continue to bear witness to that. However, taken as a whole that’s the way the rules should be read. 

    That then is reinforced by case law which has examined various aspects over the years. There are literally multiple examples but, frankly, it’s Saturday afternoon on a beautiful weekend and I’m of the view that, given your approach, it’s best to answer in detail then place you on my ignore list ASAP.

    Here then is one example.

    https://www.rightsnet.org.uk/welfare-rights/caselaw/item/both-secretary-of-state-and-representatives-should-provide-relevant-evidenc

    The link contains a further link to the actual decision but the Rightsnet summary ought to suffice given that it includes the phrase 

    “... and that the representative should have provided the documents if they were in possession of them.

    It is but one decision of many. You’ll note it’s quite explicit in referring back to rule 2 in order to justify its conclusion. There are others like 

    https://www.rightsnet.org.uk/welfare-rights/caselaw/item/requirement-for-claimants-to-cooperate-and-share-evidence-in-their-knowledg

    which also talk about the long established principle that if you want to show entitlement you need to co-operate and provide what you have.

    The only exception in amongst many cases was the decision in which a rep received medical records at the last moment and put them all in not realising they contained child protection information which legally ought not to have been disclosed. 


  • FlorineFlorine Member Posts: 37 Connected
    worried33 said:
    Mike can I ask you to please point to where in the document it states that any evidence acquired that hasnt been specifically asked for must be presented as you quoted you cant pick and choose your evidence,

    I think this has got rather off-track, given that the evidence WAS specifically asked for and wasn't presented :(

    Mike, thank you very much for your patience, and your pretty exhaustive response above!

  • mikehughescqmikehughescq Member Posts: 4,004 Disability Gamechanger
    Said my piece. Nothing to add. 
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