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When DwP hold medical evidence from the tribunal

tru88letru88le Member - under moderation Posts: 87 Courageous
Do the  first tier tribunal ever know if the dwp has  pulled your medical evidence.?
It seems such a dastardly trick to be able to remove your opponents evidence secretly and have them turn up with no medical back up.

Replies

  • mikehughescqmikehughescq Member - under moderation Posts: 4,932 Disability Gamechanger
    The implication of your post is that there are circumstances in which DWP can withhold evidence from a tribunal; that the tribunal would have no way of knowing that, and, this is a deliberate way of undermining otherwise legitimate appeals. I think this has been done to death on a previous thread but for the avoidance of doubt...

    To be absolutely clear, there are no such circumstances. I’ll take you through the possible scenarios one by one.

    1 - if you sent your medical evidence to DWP as part of a claim then it must appear as part of the evidence in an appeal bundle. As all parties should get the same appeal bundle you would know straight away that it was missing as soon as you got your copy and you’d be able to alert the tribunal. You can have no issue with DWP in those circumstances. 

    2 - if your copy of the appeal bundle contained the medical evidence but the tribunals copy did not then that is a copying error by HMCTS. It’s unfortunate, and does happen quite regularly, but it’s nothing to do with DWP. Whether you are unrepresented or not there are few things you can assume in an appeal hearing and so the first thing you would check (even more so with telephone hearings) is all parties have the same papers. Again, you can have no issue with DWP in such circumstances.

    3 - if you sent in your medical evidence to DWP but it was in respect of an earlier claim then, unless it was used in respect of the current claim, DWP would be right to exclude it. Again though, you’d know this as soon as you got the appeal bundle.

    4 - a tribunal have the power to exclude evidence if it is late or irrelevant. They also have the power to exclude evidence if they believe it would be harmful to you to see it. Just as importantly they have no choice over excluding some evidence where it is illegal for it to be disclosed in the first place. You can read the basic rules on this at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/488476/consolidated-sec-rules.pdf

    Most people rarely read their full GP records before sending them in or realise the implications of doing so. The best examples I can think of here are where your GP records contain evidence of abuse of which you may have no recall or your GP records are not exclusively about you e.g. they contain references to other members if your family. This is not just a vague data protection issue. There is a very famous recent case in which a representative from a well known advice organisation absent minded it took a whole bundle of medical evidence and sent it into the tribunal without reading it. It contained lots of child protection information and the repercussions were very serious indeed. Sometimes appeal bundles contain a note to say evidence has been excluded and sometimes they do not. Indeed in my experience it’s more likely a clerk will get instructions to exclude evidence and will include it in error than it is for DWP to deliberately exclude it.

    5 - DWP often say evidence does not exist when it does. Nowadays it’s easy enough to do a subject access request under the FOI to sort this but it’s easy enough to trip them up and, in every case I have ever come across, evidence had not been deliberately excluded, it had just been assumed it didn’t exist or the decision maker simply didn’t look hard enough. 

    Two fine examples on this:

    - decision makers would routinely say that DHSS visiting officer records did not exist or had been destroyed in Supplementary Benefit cases post 1988. Inevitably the presenting officer, after a few bad experiences with reps like me pulling them apart, would go check perhaps in the week before the hearing and would find years of the stuff. I had several cases where records went back to 1966 and one which went back to National Assistance. Nowadays a SAR via the FOI would sort that.

    - I recently had a case where DWP contradicted the appellants claim there had been previous disability benefit claims and refused point blank to comply with a judges direction for copies of those claims to be added into the appeal bundle. They were happy to say in writing that the appellant was wrong. Unfortunate then that the appellant was able to produce both previous rejection and award letters!

    There are few unique scenarios of injustice in social security. Hang around long enough and you’ll have seen something before. In 34 years I have not seen the scenario you describe. I strongly suspect that what actually happened was one of the above.

    Even if the remote possibility of your scenario being some new horror turns out to be an accurate reading of events I think it’s important to remember that very few cases turn on medical records and, if you think yours might have, then what’s really being said is that your claim pack; other supporting evidence and verbal evidence on the day was not sufficient to secure an award. The burden of proof in social security cases is quite low. Things just have to be proven on the balance of probabilities so if a tribunal can’t find in your favour based on your appearance on the day then realistically it is at best a really long shot that the inclusion of medical records would have somehow magically changed that.

    It’s important to understand this as the exclusion of one item is rarely crucial. I recently did a case in which it became apparent that either the clerk had had a brain fart with page numbering or between 30 and 50 pages were missing from my bundle and, it soon became clear, from the panels bundle too. The appellant and I chose to go ahead rather than request an adjournment because I was confident my submission dealt with enough to get the appropriate award either way. The tribunal was won unsafe 15 minutes. 

    To conclude then, if your medical records were, in your mind, the thing which has deprived you of an award, I think that is so unlikely as to be obviously wrong. If you think DWP deliberately excluded those records then, as I have hopefully comprehensive it dealt with above, that is simply not the case.
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