Technical Discussion
  >> Audio and Music Forum


Register (or login) on our website and you will not see this ad.


Pages in this thread: 1 | 2 | 3 | 4 | [5] | (show all)   Print Thread
Standard User caffn8me
(knowledge is power) Thu 30-Apr-15 17:24:49
Print Post

Re: Recording a benefits assessment


[re: 4M2] [link to this post]
 
In reply to a post by 4M2:
In reply to a post by TLM:
As someone with a legal background, however, I am interested in what the law actually is on this subject - as opposed to anecdotal reports of what somebody believes it to be.


https://www.gov.uk/government/uploads/system/uploads...
These guidelines say;
Acceptable media types at present are standard CD and audio tapes only
It doesn't say cassette. That means you could take in two reel-to-reel or DAT recorders.

There are further problems with the guidelines. They state;
If CHDA has been unable to contact a claimant by phone and an appointment letter is issued, the claimant will need to tele phone CHDA as soon as possible to notify them of their request for a recorded assessment
So, those with a phone phobia are stuffed.

Sarah

--
If I can't drink my bowl of coffee three times daily, then in my torment, I will shrivel up like a piece of roast goat

Spiders on coffee - Badass spiders on drugs
Standard User David_W
(fountain of knowledge) Thu 30-Apr-15 20:22:18
Print Post

Re: Recording a benefits assessment


[re: 4M2] [link to this post]
 
In reply to a post by 4M2:
Or it could be: "I've got a bad back can not work", doctor’s sick note and a letter from DWP "You have been awarded sickness benefit". That's just 3 pieces of paper...no massively expensive bureaucratic mumbo-jumbo, audio recordings and distress to the claimant.
It is important to remember that both the PIP assessment and the Work Capacity Assessment (ESA assessment) are functional assessments. It isn't the diagnosis, symptoms or their severity that matters most, but what effect those symptoms have on the claimant's ability to perform the tasks laid down in the regulations for the relevant benefit.


It is relatively common for claimants to go to extraordinary lengths to provide medical information that is far more detailed than will be used. For example, it would be very rare for copies of test results, scans, X-rays and the like to be looked at.

If the claimant is sending medical evidence, the most important thing is a brief report giving key information - diagnosis (if there is one), key symptoms, current treatment, maybe a brief history of the condition and a prognosis if one is available. Any indication of how the condition affects the claimant is helpful, even if it is very high level such as "always needs to use a self-propelled wheelchair". It may not be necessary to get a special letter written - those under hospital care might find that copies of recent letters from the hospital to their GP contain all the necessary information.

If a functional report is available, such as an occupational therapy report or certain types of mental health report, that report should be sent as well, as it can avoid the need for a face to face assessment. Care plans are also useful, especially for PIP.


The claimant should use the questionnaire (ESA50 for ESA, PIP2 for PIP) to give details of how their condition affects their ability to carry out the various activities listed - their so-called functional impairment. Nothing should be assumed, as you can have two people with the same condition causing the same symptoms at similar severity, but the functional effects can be very different. Take two bilateral (both leg) below the knee amputees - one may have few problems getting about on prosthetic legs, the other may have ongoing stump problems that mean they are unable to wear prosthetics.

A common way of losing points is failure to explain the functional impairments fully.


"I've got a bad back and I can't work" together with a sick note doesn't get you very far. It establishes that your GP also believes you have a bad back and is happy to certify that you are unfit for work for a given period. The sick note will, assuming the other requirements are met, entitle you to ESA at the assessment rate for the duration of the sick note whilst you are waiting for assessment.

When the Work Capacity Assessment takes place, it is only concerned with the effects of the claimant's condition on their ability to perform the ESA activities, such as mobilising (walking or self-propelling a manual wheelchair), grasping and lifting objects, and remaining sufficiently continent not to need a change of clothes. It also decides whether certain special conditions entitling the claimant to ESA are met (such as Regulation 29 and Regulation 35, which I don't propose to explain here).

Standard User 4M2
(knowledge is power) Thu 30-Apr-15 21:34:23
Print Post

Re: Recording a benefits assessment


[re: David_W] [link to this post]
 
OK - the DM (the DWP Decision Maker) basically rubber stamps the assessment made by the HCP and awards or does not award points accordingly. Then if the claimant disagrees with the outcome they can ask for a mandatory reconsideration and if that is not satisfactory then they can appeal to the LTT (Lower Tier Tribunal.) The WCA involves a physical assessment but the Tribunal hearing is primarily verbal, although there may be questions about how the appellant got to the hearing, how far did they walk and are they comfortable sitting etc.

Now if 40% of those who decide to appeal win their appeals is it because the tribunals have different criteria to those of the LiMA based WCA?


Register (or login) on our website and you will not see this ad.

Standard User David_W
(fountain of knowledge) Thu 30-Apr-15 22:33:39
Print Post

Re: Recording a benefits assessment


[re: 4M2] [link to this post]
 
In reply to a post by 4M2:
OK - the DM (the DWP Decision Maker) basically rubber stamps the assessment made by the HCP and awards or does not award points accordingly. Then if the claimant disagrees with the outcome they can ask for a mandatory reconsideration and if that is not satisfactory then they can appeal to the LTT (Lower Tier Tribunal.) The WCA involves a physical assessment but the Tribunal hearing is primarily verbal, although there may be questions about how the appellant got to the hearing, how far did they walk and are they comfortable sitting etc.

Now if 40% of those who decide to appeal win their appeals is it because the tribunals have different criteria to those of the LiMA based WCA?
It's First-tier Tribunal (FtT), not Lower Tier Tribunal. The criteria are the same at each stage - but the way the decision is reached is different, which may explain the differing outcomes.


The Decision Maker has the assessment report in front of them, plus the information supplied by the claimant.

Decision makers can and do depart from the assessment report at times, though this is relatively uncommon and typically happens when a decision maker recognises that the assessor has incorrectly applied the law to their findings of fact. It is difficult for the decision maker making the initial decision to depart from the findings of fact made by the assessor, as they have not met the claimant and are not medically qualified.

On medical matters, the decision maker has to trust the judgment of the assessment provider, though they do have the power to put supplementary questions to the assessment provider if they are not happy with some aspect of the report.

Decision makers have the ability to contact the claimant if they want more information, but this power is often not used. Claimants don't always respond very well to phone calls from the DM.


At reconsideration, the decision maker must weigh any additional submission from the claimant against the evidence already in the file. I have had decisions relating to me overturned at reconsideration by inviting the decision maker to prefer my point of view over the assessment report. I did this by pointing out the coherency of my reconsideration arguments with the entirely of my original submission and the medical evidence I had supplied. However, this sort of thing is not easy to do, especially as the small time window available for reconsideration together with the overload at many advice providers means many claimants have no source of good quality advice or support for reconsideration.

Some claimants ask for reconsideration to take place without making a further submission, either because they are convinced that an obvious error has been made that will be corrected, or because they see no reasonable chance of a favourable reconsideration and want the paperwork to allow appeal to the FtT as quickly as possible.


The FtT is in a different and more privileged position. The panel for an ESA tribunal is a tribunal judge (a barrister or solicitor), sitting with a doctor. This means that the decision is made with expertise in the law and in medicine. A PIP tribunal panel has a third member, who is a disabled person. Sometimes this disabled person has some sort of medical, legal or advice provider background, though this is not compulsory.

By the time a case reaches tribunal, the claimant should have had the chance to read and reflect on the contents of the assessment report before making their submission. Theoretically it is possible for the claimant to obtain the assessment report before requesting reconsideration, but in practice claimants don't always understand they can request the assessment report at that stage and, if the report is requested, DWP don't always send it before the deadline for an in-time reconsideration submission expires. The claimant can wait for the assessment report and risk submitting out of time, but this leaves open the possibility of the reconsideration request being denied as late without good reason.

The delay whilst reconsideration takes place gives greater opportunity for the claimant to obtain advice and/or additional evidence.

The claimant has the chance to request an oral hearing at the FtT, which is strongly recommended, as this gives the panel the chance to meet the claimant and question them directly. Statistics show that the claimant is more likely to succeed at an oral than a paper hearing.


Overall, the success rate for ESA tribunals is far too high, as it indicates far too many decisions are in error. The withdrawal of almost all legal aid funding for welfare rights, almost all of which went to advice organisations like CAB, and the deep cuts to council discretionary spending means that many advice services have had to cut back on the support they can offer at just the time that the disability benefit reforms began to bite hardest (with reassessments from legacy incapacity benefits to ESA taking place in earnest and PIP being introduced).

Standard User 4M2
(knowledge is power) Thu 30-Apr-15 22:54:48
Print Post

Re: Recording a benefits assessment


[re: David_W] [link to this post]
 
In reply to a post by David_W:
It's First-tier Tribunal (FtT), not Lower Tier Tribunal.


Sorry inadvertently called it "lower" in the context of thinking about Upper Tribunals also smile

Edit: you may be interested to hear of a case where additional evidence of incapacity was sent to the FtT prior to the hearing and they sent it to the DM who thought it didn't change the decision. This unchanged decision was returned to the FtT who in turn passed it on to the appellant. The hearing will still be as scheduled though.

Edited by 4M2 (Thu 30-Apr-15 23:16:28)

Pages in this thread: 1 | 2 | 3 | 4 | [5] | (show all)   Print Thread

Jump to