My client failed a Personal Capability Assessment in October. In May he was notified of a decision made in March on the basis of that PCA. He appealed.

Shortly after, however, he received a second letter from the DWP which said that the examining doctor failed to renew his registration with the GMC so he was not registered at the time of my client's assessment. The letter said that the DWP was not allowed by the law to rely on his report for their decision, and that my client would receive a new medical assessment. My client's benefit was not stopped. The tribunal suspended the appeal.

Later, the DWP changed their mind but did not send any third, clear, decision; they only asked the tribunal to proceed with the appeal. The only new letter sent to my client is NOT a decision on his claim. It is, formally, a decision on a 'new claim' made in May, although it mentions that my client failed a PCA for his previous claim 'in March' (it was October anyway) .

The date of the tribunal hearing has now been confirmed. The bundle is the one originally sent to us before the issue of the EMP's registration had arisen, which confuses me quite a lot.

Please help me. I have a few questions.
1.Can the DWP rely on the medical report?
2. Which decision is THE decision? Is the first decision still valid? Does the second letter invalidate the first decision? Does the second letter constitute a new decision? Does my client need a third, clear decision brought before the tribunal?

Thanks to all
Josephina

In practical terms, it may depend when the doctor's registration should have been renewed - if he was registered at the date of the examination but ceased to be so before the date of the decision. then I think it falls withing the Incapacity for Work Regs, which require an examination to be carried out by a doctor registered with the GMC or other health care professional who is appropriately registered.
What could have happened then is that they thought at first the doctor wasn't registered, but then discovered he was at the appropriate time (could approval from the GMC be retrospective?) In that case your cleint needs to continues with his appeal against the original decision. On the other hand if as a matter of fact the doctor was not and cannot be deemed to be registered then your client has not failed a PCA examination as it was invalidated by the error and he remains treated as incapable of work in law untill he is sent for a real PCA with a real doctor.
You say the apepal was "suspended" by the Tribunal - I'm not sure if you mean adjourned or an interlocutory direction or what. Has there been any clarification from the Department of the problem? Has any of the correspomndence been added to the Tribunal bundle by you, the Tribunals Service or the DWP? If not surely it should be.

and, have the TAS ask the DWP to provide proof of the doctor's registration at all material times, since it has been raised as an issue and then if they can't, you've got the correspondence from the DWP to show that it is a problem and you should succeed on that...surely.

The reference to 'new claim' + failed PCA re March would have me checking to make sure there hasn't been a decision on a 'new' claim? Client's don't always keep us fully informed!!

This story has a twist.

After I sent my question to the forum I was informed that the decision that this appeal should go ahead did NOT come from the DWP at all, but from the district chairman of the tribunal services.

In fact (and very fairly indeed) the DWP wrote to the tribunal chairman that that this appeal had no practical purpose, because the original decision could not be based on that medical assessment.

In reply to this letter the regional chairman decided that the appeal should go ahead. This letter says 'existing appeal needs to be resolved and any new medical evidence can only lead to revision of existing decision'. This means that while the DWP confirmed that their decision was not valid and kept paying my client's benefit, the tribunal chairman insists that the medical evdience is 'evidence' and 'leads to revision of existing decision'.

Section 9(6) of the Social Security Act 1998: -

“Except in prescribed circumstances, an appeal against a decision of the Secretary of State shall lapse if the decision is revised under this section before the appeal is determined”.

Thus it is worth checking whether the DWP have lawfully revised the decision under section 9. If they have then The Tribunals Service has no jurisdiction in the matter.