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PIP functional examination advice please

wildlifewildlife Member Posts: 1,314 Pioneering
edited December 2017 in PIP, DLA and AA
@mikehughescq

I am wanting clarification on whether I should have had a physical exam when I had provided a very recent Physio report with results of a strength test and overall muscular/reflex/myotomes test which stated I had a problem throughout the body not just in the lower part. This was ignored by both my assessor and 3 decision makers in favour of false exam results made up by my assessor. I have checked the DWP Guidelines and the only reference I can find is in section 1.6.35 which states "Where there is clear and current evidence of a claimant's functional examination findings HP's do not need to conduct an examination". I can find no other reference. This is not the same as saying HP's are wrong if they decide they need to do an exam. This brings to mind the question of would I have been better to refuse to do the exam. from my perspective rather than end up with a whole sheet of false results that robbed me of higher rate Daily Living? Any advice would be appreciated as I wish to make notes of how to best deal with a review in 3 years time. I will be 70 by then. 

Replies

  • mikehughescqmikehughescq Member Posts: 6,006 Disability Gamechanger

    The reference you have found is the exact right one and it's more than enough to suffice for the argument that they should not have done a physical exam if you then pose the question "Okay then, bearing in mind you had up to date medical evidence and functional results from a specialist in the field, could you specify the precise reason you decided you needed further tests? What was the specific deficiency you identified with the original evidence? What was not clear or not current?"

    The answer of course is that they won't be able to find such answers. I have pursued several complaints on the above basis and the assessment providers do not necessarily back down and concede that they shouldn't have done the functional assessment. What they will do is find a way to concede that perhaps there was stuff they missed and thus they'll make a revised recommendation to a decision maker.

    As to the question of whether you should have refused the functional assessment, that's not straightforward. The guidance says they should seek separate verbal consent. I have successfully argued that they cannot possibly prove they did unless they record it in the report, which of course they never do. This is another string to your bow as it's easy enough to assert they didn't ask plus... I have yet to come across anyone where they did actually ask.

    However, were you to have refused to proceed then it's likely that rather than accept that and move on they would end the assessment and claim you had failed to participate. You would ultimately win that argument, most likely at appeal, but it would add time to the process. In most cases I would recommend proceeding but having a witness to the fact that that you objected to the process and asked them what was not clear or current and why they were proceeding. You should ask them to record your objections at the same time as suggesting they record your consent on the form and that if they don't then you don't want to go ahead.

    I have found it's also useful to talk to consultants about how functional assessments particular to you should be conducted. That enables you to point out on the day when they are conducting such tests in a non-standard way. So, for example, a Snellen eye test should be at 6m in specific light and a specific height. If it's not then the results are invalid.

  • wildlifewildlife Member Posts: 1,314 Pioneering
    @mikehughescq Thank-you that's very helpful. There is a consent box just under the Observations section on the PA4 and it does say I consented to a physical examination. But I knew nothing then of the necessity for one and how that was decided upon. I vaguely remember her asking for permission so no complaint on that score. However I will write another letter to ATOS with a new complaint as I have plenty of time whilst waiting for ICE and it may help that in the long run. 
  • mikehughescqmikehughescq Member Posts: 6,006 Disability Gamechanger

    They asked and recorded it. Goodness me.

    Having said all of the above I'm afraid I would still say that an appeal with good representation absolutely sorts this once and for all.

  • wildlifewildlife Member Posts: 1,314 Pioneering
    OK I hear what you're saying and will consider it.
  • unicorn85unicorn85 Member Posts: 8 Listener
    wildlife said:
    OK I hear what you're saying and will consider it.
    Hi wildlife, i'm glad you are still fighting - do you think you'll appeal at the tribunal now?....what happens if you appeal after the one month deadline?
    good luck!
  • wildlifewildlife Member Posts: 1,314 Pioneering
    edited November 2017
    @unicorn85 Thank-you for your encouragement. I have reached the point in my life where I never do anything without weighing up all aspects and whether or not I have a strong enough case to win at Tribunal I'm not sure. I do have nerve damage but lack strong evidence of this as nothing can be done by the NHS so as I also have a bad health anxiety my Doctor won't send me for tests unless it was life threatening or something can be treated. She wouldn't refer me just to get results for a PIP Appeal. That said I am happy to pay for any tests to prove my disabilities. This is apart from them accepting an Appeal several months after I've accepted an award. I think I'll still stick with what I've got but carry on the fight to have my assessor proved a liar which I can still carry on doing. I know a victory at Appeal would make that a reality but I'm sorry to say I'm too nervous about losing what I already have and don't feel strong enough to deal with all the paperwork and the actual appearance in court even with a good rep. which I've never had to use. I have been through an Appeal before in 2010 for DLA and won but I'm no where near as strong as I was then mentally or physically. At least I can pace myself and do things as and when I can. I have a review in 3 years and am very aware that I want a cast iron case for higher rate in both which only means a slight increase in points from what I have now. Each case is different and in an ideal world I should try for Appeal but the other way of doing this is right for me personally. There's also a chance the criteria will have changed by then especially regarding what you risk losing by appealing.           
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