I was at an appeal a while ago and I used a DMG memo to support my argument, when the chair asked me what the legal standing was of the memo. I didn't know, and I still don't - but I know someone out there in Rightsnetland will

Similarly, I have another appeal coming up concernig exemption from the PCA that relies in part upon the definition of an illness given in the IB handbook for approved doctors. I take it the handbook isn't a legal document, so how binding are the guidelines it gives?

ive just been looking at Cmmrs decision CIB/14332/96. Have a look at para 11 and 13, there is some discussion about how to treat the IB handbook and that it can be permissable to use this inforamtion where there are problems with interpretation. Doesnt really state whether binding or not but you may find it useful.

hope it helps?

PS i did search on osscs website, ICB, sub category continence, its the last decision.

If the DMG Memo contains opinion on a legal matter then it will not be binding on a tribunal. This is because only court and OSSC decisions are binding. The Memo should be classed as 'persuasive' in the same way that the opinion of a textbook writer may be, so the chair of the tribunal does not have to follow it but may do so it he agrees with it.

If you look at the beginning of Vol 1 of the Social Security Law books it goes through this area ('Using this book...'section)

Thanks for that.

What I was trying to get at was that the DM hadn't followed the guidelines in the DMG memo at all, and had in fact ignored a fairly significant bit of case law. I won the appeal, it's just i don't like not knowing the answer to things, especially with this particular chair.

And thanks for that decision, Saffron, it may help, although I will hopefully have enough medical evidence to prove that my client is unfit for work. It's always nice to have a back up plan, though.

I wonder if the handbook is effectively the best practice guide. I agree that it is at best persuasive in terms of the law eg definitions etc, but if the DM hasn't followed what the 'best practice' is, and there is no compelling reason why, then this could be evidence of a failure on his part. Depending on the nature of the failure it could show that his decisions could be unreliable/ if not totally wrong?

In the same vein, (pun not necessarily intended) with Doctors using the Lima guidance book, and DM's etc using other such volumes, decisions/actions that have not been made in the appropriate way, could be open to scrutiny.

What does anyone think?

Cablou

Basically the DMG and any guidance volume is just that - guidance.

DWP's Adjudication & Constitutional issues branch in Leeds are responsible for updating the guidance either through periodic amendments or the issue of memos and letters. the latter are usually as the result of significant legislative changes or case law decisions.

Effectively, it is a simplified interpretation of the effect of the change for DMs to follow.That is why it has no legal standing as it merely amounts to an interpretation. However, as they represent the view of the Department they may go through stringent checks for quality assurance.

So there is certainly a compelling argument if a DM failed to take account of Departmental advice, but it is not legally based. Equally, if you ask the Department for reasons for a decision and they cite "DMG para. whatever", chuck it right back insisting on the correct legal reference!!

Lorna.

....except where....

you get the interesting phenomena of the Commissioners specifically approving a piece of internal guidance... in which case through the Commissioner's decision it is possible to elevate it to law (depending on exactly how the CD is reasoned and the importance of the reliance on the guidance to the decision etc).

This happened in the distant past with some Supplementary Benefit Handbook notes on "living together" (the six areas etc). It then became an issue as to which version of the handbook the Court had commended and a further Commissioner had a go at that. All very amusing.

Oh yes, I remember that now!