DWP Decision-Maker refuses to send EMP

Hi everyone,

Wondered if you could help.  Requested EMP visit rather than complete section 2 of 434 supersession request. Decision-maker contacted client refusing and stating he is reissuing forms.

We contacted him directly and he states will not send EMP out, we must complete the forms. The wording on the forms that client can request EMP are “outside his remit” and that he will not make a decision until section 2 complete.

Any advice anyone? Did anyone find regs/legislation regarding clients right to an EMP visit?

Many thanks.

Is there any point in not completing the forms?

Surely there will just be a decision to maintain the current award or reduce?

I’m sure it says somewhere something like ‘....the claimant shall furnish the SoS with whatever evidence he may require…’

As its a supersession you could only want to be difficult where the burden of proof is on the SoS to make the change (reduction) in benefit.

?

Hi, thanks for the response.

We are not trying to be difficult. The client is 17yrs with ME, chronic fatigue and obsessive compulsive disorder. Having previously tried to explain her conditions thoroughly, she was awarded LRC for her troubles. She has consistently said “I wish they could come and see how I manage..” etc.

With such fluctuating opinions/views on these conditions, we felt that overall it might be better to request the EMP so he can see for himself the difficulties.

The point I’m trying to make is that there is an option on the form of not completing section 2 and requesting an EMP visit instead. Since they give the client that option, how or why would a DM refuse? There would simply be no point in the option being given!

Turning to the Regs, I’m sure that the client does not have a right to an EMP visit, only the right to request one but I just wanted to check out those provisions to be sure.

There is no statutory right to an EMP.  Yet there is no statutory requirement to fill in section 2 either.  Years ago sections 1 and 2 were on separate forms.  Form (section) 1 was the claim form proper while form (section) 2 was simply a request for further information.  Once form 1 was completed and submitted then a valid claim was made and a proper decision had to be made on it.

The DWP have a duty to make a fair decision which is reasoned and based on evidence.  Faced with a situation like this where, presumably, your client has not ticked all the “no” boxes in section 2 then the DM must try to gather further information or evidence.  If the claimant refuses a further request to complete section 2 then the DM should at least write to that person’s G.P.  Depending on what comes back then he may make a decision (either for or against) or send out an EMP.  Any decision is, of course, subject to appeal to an independent tribunal.  That is the claimant’s right of redress.

What a DM cannot do is just sit on his hands and refuse to make a decision.  That is unlawful.  What a DM should not do is just reject the claim out of hand.  That is poor adjudication and administration First, because it produces a decision unsupported by any evidence and second, because it may lead to a long drawn out appeal process wasting more time and public money in the long run.

Having said that (although your client’s reasons for wanting the EMP seem perfectly reasonable) tribunals will take a dim view of anyone who refuses to complete section 2 just to be bloody minded or to simply (as misinformed) “stand on his rights.”

I’m sure that the DWP work on a cost basis these days, but I don’t actually ‘know.’.

If the form has needs on it, write to skool (if it applies or is open) Hospital (if it applies or is still open) then only if you have to, the GP.

If the GP ev is inconclusive send EMP. Which is more ££‘s.

If the form has no identifiable needs make a decision and refuse. Nil£

As I say I don’t know if they do, but from my observations there has been a shift in the last few years to the above.

You should make your client aware that EMPs can be as different (or indifferent) as night and day. Again by observation….