My colleague provided a written sub for an IB appeal and in it strongly criticized the computer generated EMP report. TAS directed an adjournment and that a further examination be carried out (and went on to suggest client seek advice after it has been done - is he trying to tell my colleague something??). We are now wondering whether if it was agreed the first report was unacceptable shouldn't the client be considered as incapable of work until the next medical and decision?

Thanks
Sue

Agree completely. How can a flawed PCA be occasion to supersede?
I'd throw in R(IB) 1/05 - not necessarily because it is identical, but because all that confusing text about supersessions might be enough to convince a tribunal it would be easier not to have to wrestle with the issue, and agree with what you say!

I don't think you could do it any other way - if TAS think the first EMP report was so bad that they asked for another one, then it would appear that you could argue that Incap did not have evidence with which to review the case in the first instance. I did wonder as to who at TAS has the authority to order a new EMP report - would it be done at District Chair level?

Once you have convinced the local office Incap decision maker that the evidence that he based his decision on was a highly suspect EMP report,then they must reinstate (and backdate) benefit.

At that point, at least in theory, the Appeal should lapse. However, I'm not sure where that would leave the second EMP report, as and when it surfaces. I Guess it would be sent to the local Incap section and the process would start again.

Does this not raise a question though as to how closely a DM reads EMP reports - or any other reports for that matter - it seems to have taken a submission from a Representative to bring it to someone's attention.

.......forget the bit about District chairs and powers to ask for EMP report - touch of geriatricity ............

Many thanks for your resonses - but Mike I read and re-read your posting and can't make head nor tail of it - is it a touch of my own geriatricity?????

Sorry about that ....

Reading it again I can see what you mean. I guess I was thinking of dates etc, and the effect on the claim. At the moment there is a claim which has been terminated on a set date, on the basis of an iffy EMP report.

When the adjourned Tribunal rehears the case, it may well throw out that iffy EMP report, and at that point the Appeal theoretically succeeds.

It is then left with a newer EMP report, dated some months after the original report and associated decision. If (can?) the Tribunal decide to allow the appeal then all well and good.

What is the position however if the Tribunal decides that the client doesn't meet the Incap criteria - based on the newer EMP report - what date does it cease benefit from?

Does that make sense?

That's better!!

I agree with the above The Chair clearly misdirected himself, he should have simply reversed the decision putting ICB back in payment as the SoS had failed to provide sufficient evidence to justify the new decision superceding an award of ICB. Should the SoS then submit the claimant to a new PCA once ICB is restored thats another matter.
It appears the Chairs is thinking in DLA mode where he/she needs calear medical evidence as he has to decide the level of an award or no award at all. Maybe you should write to the District Chair to intervene otherwise you may need to spend months at the Commissioners.

thanks to all. I've passed all messages on to my colleague and told him to keep an eye on the postings.