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When DwP hold medical evidence from the tribunal
tru88le
Posts: 95 Member
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.
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
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.
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
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.
- 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.
Ive reread your post and need to know which of your examples rule 24 relate to when evidemce is withheld on that rule. I cant find any mention of it let alone done to death.
Would they cite this rule when deciding not to include documents on account of their being out of date etc?
Does anyone have the link to the thread where "this has been done to death"? So I can see if it mentions what i'm interested in.
Which in my case is the dwp have not put my medical notes in the bundle and they mentioned a part of rule 24
that related to DLA medical notes in terms of them being outdated and thereforedidnt put them in..
I know many people here dont see medical data as very important as evidence but I have on record a tribunal judge saying the medical notes were "of cardinal importance to this case", i dont care to hear an opinion of why he said that but these words being ftom a tribunal jjudge rather contradict the views of many and I doubt they are unique to the case in question.
That said why would the dwp exclude such information, especially whrn the said DLA evidence was only three months old and formed the basis of an indefinite award just weeks prior to being 'out of date'
Anyway if anyone knows the link to the font of all knowledge on the subject i'll look myself.
Thx
Finding your threads where this was “done to death” is easy enough. Just click on your name and you’ll see options to view everything you’ve replied to and every discussion you’ve started. Last I looked there were about 10 on the topic of your claim so it shouldn’t be hard to locate. You have examined the one issue - your entitlement - from multiple angles but seem determined to not entertain the possibility of nil entitlement, preferring instead to pivot towards a slightly new angle each time.
There is a growing body of case law on the need to put DLA evidence into appeal papers. The consensus has moved on apace from “if you ask they must put it in” to “there are a limited number of bodily functions for DLA where the wording has sufficient overlap with PIP to make it relevant but, in most cases, it’s hard to justify it as a sensible use of public money.”
So, whilst you might not see it as relevant, I think it will be of interest to others to understand why a judges conclusion may not be relevant or binding.
Firstly, you’re absolutely right. It’s not unique. Many judges adjourn hearings in order to obtain medical evidence. However, you have to look at why they do that and what happens next. Most appellants want to believe that a judge is adjourning for medical evidence because they think it’s relevant. Occasionally that is true. More often
- the judge or another panel member wants to get home or out.
- the judge is sitting with panel members who don’t at any point want to give you a fair hearing so they adjourn to give you a different panel.
- the panel think you have presented no case for entitlement but think you’ll kick off when they say that so they kick it down the road and let another panel site it out.
However, the key issue is what happens next. The next tribunal is a fresh hearing and is in no way bound by the findings of a previous hearing. A judge can thus use a phrase like “cardinal importance” knowing full well it has no consequences for them and the DWP are free to ignore it completely. The next tribunal could use those words as a stick to beat the DWP with if they wished but the easier option is always to look at it and say “do we actually have enough evidence to decide the case one way or another” and if they do then they just crack on and don’t worry about what’s missing.
It is thus absolutely not the case that such words contradict in any way the views of many on here that medical evidence is, with a couple of exceptions, not where the focus of a claim should be. They could just as easily be read as judicial laziness as they could a measure of the weight to be given to medical evidence.
As regards the specifics of your case, which as ever remain largely elusive, I am struggling to think for the life of me why DLA “notes” whatever those are which predate a PIP claim by a mere 3 months could be of any relevance. What could they possibly say or reveal which wasn’t in the PIP claim pack?
I think you may benefit from reading through all your threads on this claim and asking yourself what the benefit of this micro analysis of one small aspect of your PIP claim has been. I choose to respond nowadays to threads only where I think there may be a wider benefit to others but in your specific case I’d love to know what these “DLA notes” contained that would have changed your outcome.
(Removed by moderator, inappropriate comment)
Then being outdated for pip.
I considet the judge saying they were of cardinal importance to be a better indicator than what a group of people here believe. Belief isnt always basrd on fact.
As people on here, whom mikehughes mentions like to consider the omission of medical evidence as of minor importance to the hearing.
I would be interested to know if they would considet claiming pip without any medical evidence? [Removed by moderator - please watch your tone]
Well what if the medical evidence you supplied was removed, would you still feel confident? And if you lost the appeal and then found out your medical submissions had been quietly removed before the hearing would you still feel that the omission of your notes had little bearing on the decision?
[removed by moderator - please watch your tone]
[Removed by moderator - personal attack].
I dont get your assertion that a judge being so underworked he has no time to write reports or think about them. Presume you mean ftt judges.
You also state that any errors found are found in the judges sor. There are other areas errors can be caused.
[Removed by moderator - personal attacks. Please watch your tone, and avoid profanity]
You seem to think i'm under a delusion that i should be winning and its all so unfair.
The reality is when a rep or tribunal sees the full story and still says i should withdraw the appeal i would do.
Consider your own example would you have considered telling that person they had no chance even after several hearings without seeing the medical history? [Removed by moderator - please watch your tone]. Obviously it was that evidence that formed your opinion so why tell them to quit if its not that important?
What drives me on is knowing it hasnt been considered with full evidence yet.
The dwp gave me10 points the tribunal 0 points.
Does that not indicate anything about what effect the lack of medical data had?
[General note from moderator - please watch your tone @tru88le. We don't tolerate personal attacks against other memebrs.]
In turn, your suggestion that errors of law can be found somewhere other than the statement of reasons is simply wrong.The only basis for going to UT is an error of law. The SOR and record of proceedings (ROP) are the only documents considered when a judge decides whether or not there is the appearance of an error of law.
Medical history, as has been pointed out to you repeatedly over several threads, is rarely relevant to a PIP claim. Provided your symptoms are accepted as real there is no need for even a diagnosis. All that matters is that your symptoms are accepted as real and that you demonstrate through anecdote how they impact your reliability at performing the relevant points scoring activities.
I note your comment that DWP awarded 10 points but a tribunal awarded zero points. You suggest that says something about the lack of “medical data”. What that suggests to me is as follows:
- whilst a FTT is a complete re-hearing and you walk in with zero points, most FTTs don’t tend to want to reinvent the wheel. If they can see why you had those points from the papers and especially from your verbal evidence on the day then they’ll move quickly to the points you don’t have and save everyone a lot of time. You managed to lose the 10 points you had. As an experienced rep I cannot for the life of me imagine how the absence of medical evidence would do that if you were present in the hearing and were able to given straightforward, credible answers. The absence of anecdotal evidence can be fatal thus why the success rate at paper hearings is so low i.e. the lack of real world examples, but, the lack of medical evidence? I would genuinely love an explanation of exactly what damage it could have done if you were there to give evidence anyway.
- it’s a relatively straightforward matter to get a FTT set aside if relevant documents were missing. You didn’t manage to do that and ended up at UT and are now heading to what sounds like a 3rd FTT.
You say that if a rep told you that you weren’t entitled you would cease immediately. Your case is screaming out that you are in need of representation.
Scope - I did not see the original unmoderated post (quite literally and most amusingly too busy closing cases where I have successfully obtained PIP for people without the help of any medical evidence) - so I’ve no idea at whom any moderated comments were aimed. However, I cannot imagine a finer example of poor moderation. You are literally at the stage where someone can breach your T&Cs 5x in 1 post and you bend over backwards to allow the post to appear rather than just removing the post in its entirety and contacting the poster to explain why. Words fail. They really do. Such actions actively encourage personal abuse. What exactly was achieved by allowing the post? You would achieve 10x more and make yours and our lives on here far easier by simply banning abuse.
Scope community team
Thanks for your reply, I hope you are getting along okay.
It's important for us to allow open discussion on the community, in this case @tru88le has thoughts on the subject and they deserve to have their say, just like anybody else does. A constructive conversation was, and still very much is, possible.
We do prevent many comments from appearing publicly on the community, however in some cases it works better from a moderation standpoint to make edits to posts and allow what remains to appear on the community if it makes sense and contributes to the discussion.
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<moderator removed – comments made against community guidelines. Please remember to not comment on another member’s character and keep on topic>
@Mikehughescq Thanks for replying but you are asking me the same question i am asking you about what the removal of medical notes could possibly do to my chances of winning the appeal.
But i am certain i would have fared better had my notes not been omitted.You cant remember a case whdre medical records even mattered?
Come on, as you say yourself your left to convince them tbe illness real anr that shouldnt need to be said at this stage. If i cant convince them i have an illness i am scuppered that is the relevance of my medical notes i cant or might not be able to convince them i have an illness as welk as they would like and its all time wasted about how it affects me not wether i even have an illness.
If what you say is true there would be no need to provide any medical notes at all at any stage if it was a matter of simply tellling them i had a diagnosis. The lack 9f medical data causes someone who cannot explain very well to have no back up and they will fail.
I know the judge didnt believe much i said, i came across badly i wrecked my own appeal, i can accept my errors asi have some humility <moderator removed – comments made against community guidelines. Please remember to not comment on another member’s character and keep on topic>
<moderator removed – comments made against community guidelines. Please remember to not comment on another member’s character and keep on topic>
I dont agree that anecdotal evidence counts for as much as you say and i have seen for myself the dwp dismiss anecdotal evidence but it seems any oral replies are inevitably anecdotal, when talking about experiences and issues.
My point yet again was that the dwp awarded 10 points which the tribunal removed. I see that as illogically different in their assessment of points and i could only see the lack of medical notes as the cause.
Think about it, why would they give me a warning about my chances of success before i even say a word? That must mean that something is affecting my case and it cannot be anything i've said!
It can only be a lack of medical back up, simple proof of the illness that verifies the condition and then they can ask away but without it they are forced to focus on wether you even have an illness first.
I'm not unwilling to accept your advice but i cant do that unless it is relating to the question i ask.
Also regarding what my rep said i know they made their opinion on an incomplete tribunal bundle and i only said i would heed their advice if it was given in light 9f seeing the full bundle. Until that point how can they advise without the full facts? Also my knowing they havent seen all tbe evidence causes me to not heed their advice because I know its based on only partial knowledge of the facts.
I simply said i WOULD HEED THEM IF I KNEW THEY HAD ALL THE FACTS.
<moderator removed – comments made against community guidelines. Please remember to not comment on another member’s character and keep on topic>
Scope community team
@Tru88le Thank you for your post. It has been heavily edited to remove all instances whereby the community guidelines have been breached. We understand the subject of PIP can give rise to heated emotion and debate, however personal attacks against other members will not be tolerated. Should any future posts you make contain similar non-permitted content, they will result in appropriate disciplinary action. To avoid this, please remember to keep conversation based around the subject matter and not the character of a person who may disagree. Thank you.
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I think it’s time for the community to stand up as a whole now and tell you unequivocally that your moderation policy is simply wrong. The “open discussion” argument is the same nonsense Facebook peddles when allowing abuse. The “deserving to have their say” approach is the same thing. A “constructive conversation” is not possible where abuse continues and editing that, as can be seen here, offers no disincentives to abuse at all.
The post from @Cher_Scope suggests that no other action was taken after the last but one post. This simply doesn’t happen on any other forums. This approach certainly doesn’t happen on any other forums involving disabled people. Scope are effectively taking a stance which says that all disability allows abuse provided that some sensible comment goes along with that. Frankly, it is transparently abject nonsense.
I am but one poster here but I’m calling it out now. Poppy has stepped back. Chiariads has stepped back. In both instances that has been down to your moderation policy. Time to grow some; take a long look in the mirror and close the forum whilst you review just how far wrong you have gone here.
For the avoidance of any doubt I very quietly decided I too would be leaving a few weeks back and requested my account should be deleted. I was asked by Adrian to remain and invited to take part in exactly such a review. I asked some simple questions and agreed to stay until I at least received answers and could form an informed view about that. I have received nothing. I now consider it nothing more than a con. A way of avoiding another embarrassing departure.
For the further avoidance of doubt, as of now I am taking a stand and I ask other posters to join me. If a post is allowed to appear which contained abuse then I simply won’t respond. End of. I’m not interested in the extent of editing or what goes on behind the scenes. Such posts should not be “edited”. They need to be removed and the poster suspended. Zero tolerance rather than tolerance of literally everything, Your moderation is fundamentally broken. You as an organisation are now enablers of abuse and you need to be publicly called out on that.
@Tru88le does not deserve a response at all. They have posted repeated abuse. I will not be responding.
Scope community team
Also, Adrian has been on annual leave the past week. I will flag up that you are awaiting a response regarding the review and also feed on the concerns you raise regarding moderation.
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I agree with him posters here seem to be allowed to abuse others without obvious sanction. However, I have noticed it is those with the most knowledge who are most frequently subjected to this abuse. To me, this suggests those "dishing out" the abuse may well behave similarly when encountering anyone, anywhere, in a position of authority / expertise.
As @mikehughescq has also alluded "some" people, obviously not all, misuse their disability/illness as an excuse to be, quite frankly, obnoxious to others. If it's, as has been suggested, stress-related, given so many of us are stressed beyond belief by the entire benefits process, this behaviour would be an hourly occurence, no? I don't see that as being the case, therefore there must be another reason.
If those dishing-out abuse are not called-out on this they will simply continue. I speak here from having spent 42 years working in the social work realm where such individuals were, indeed, "pandered to" for decades at great cost to those they abused, not those sitting miles away forming policy, but those on the front line attempting to provide a service.
However, agencies have now, fortunately, realised those on the receiving end have rights too and vexacious/abusive complainants are being called-out when they do so and sanctioned for unacceptable behaviour - there are no longer myriad warnings, chances, talking-to's that simply served to allow people to continue to abuse other people.
Unfortunately, that is what I see happening here ... excuses being made for unacceptable behaviour with no detriment to those behaving badly and certainly very little in the way of support for those being abused. Perhaps there is a different/better way for Scope to provide a service to those who seem unable to prevent themselves from abusing others? A one-to-one service? A direct referral to appropriate WR officers for one-to-one support? Anything, really, that prevents experienced/helpful posters walking away due to having been abused and not protected.
@Cher_Scope is entirely correct and I have witnessed the process first hand unfortunately.
My problem is trying to ignore the manner in which you reply your answets which are partly heloful are also offensive and belittling. I have to tread like on eggshells [removed by moderator].
If you consider your own responses, do they appear friendly or made with good spirit? its like being treated like a fool. For continuing to query but the reason I do thst is because I dont get the answer that satisfies the constraints of the question. I dont care what a judge earns or what a clerk does when i'm asking about something else [removed by moderator]
For example i asked what effect the missing evidence had on my appeal hearing. You said more or less that it would have none, you went on to say anecfotal evidrnce is most important. This leaves me wondering then why did the judge adjourn for lack of medical evidence and before i had spoken zt all? Why adjourn without hearing any anecdotal evidence if thats more important and tbe medical notes have little significance?
If you were correct then they would have heard the anecdotal stuff surely.
In my case the judge looked at the evidence and disregarded the anecdotal stuff and focused on the medical notes and deemed them important enough to adjourn. That tells me that to that judge the medical notes were more vital than anecdotal evidence otherwise he would have continued. With the hearing.
Therefore no matter how compelling oral evidence is it is dependant on the medical notes being satisfactory as well.
That includes evidence from the assessment which is also not enough on its own with your medical notes.
One thing you werecorrect on, I do indeed need a rep but in my part of the country they are non existant aside from cab who dont rep. Thay is why I had a rep from Coventry spprox 200 miles away to deal with the upoer tribunal.
But that help paid for with legal aid is only for the upper tribunal .
Now i am looking at paying a 50% fee for assistance from this point.
By the way, the rep telling me to quit on due to lack of medical evidence was in effect contradicting your assertion of the med notes being unimportant, he seemed to think the lack of them was of primary importance...