I am dealing with a Disability Living Allowance case which was refused by the Tribunal. I would like to request leave to appeal- I have to do this by next week. I would like some advice on two particular parts of the judgement:

1) The Tribunal suggested that the EMP Report as instructed by them was more objective than any other reports that we had obtained- has there been a successful challenge to an attempt by the Tribunal to give automatic preference to EMP evidence against other medical evidence?

2) In the determination the Tribunal firstly say they are not concerned with the exactness of diagnoses (our psychiatrist's report provides a more accurate diagnosis), and then say they prefer the EMP's report because of the more detailed clinical observations. Is there any way i can challenge this contradiction? Is there any case law on how the tribunals should treat medical evidence from particular sources, particularly evidence from a psychiatrist?

If anyone could provide any help on this topic I would be very grateful- I have to appeal by next week so (without wanting to be cheeky) the sooner you could reply the better!! Many thanks indeed
Lorraine Barrie

CDLA/1850/2001 (Sorry don't have a copy)
Comm Mesher states reasons given for rejection of evidence should note and discuss strengths and weaknesses of each side - why one was preferred, instead of only why one was preferred. May be of some use. Brian Gray

CDLA/1850/2001 is available from the 'CDs on rightsnet' page @

http://www.rightsnet.org.uk/cgi-bin/publisher/display.cgi?1138-3104-29493+swopshop#DLA

brg and shawn- thanks very much. If anyone else can think of other cases i would appreciate it. ta

these decisions were mentioned in a CPAG training on incapacity benefit I went on

CIB/4891/1997
'it is totally improper to assume that a Doctor examining the claimant on behalf of BAMS is more likely to be correct than any other doctor, merely because he is employed by BAMS'

CIB/407/1998
the decision in CDLA/8462/1995 was not authority for holding that tribunals should, or must, prefer the evidence of an examining doctor to that of a claimant or a GP. The weighing of evidence is for the tribunal'

CIB/14722/1996
'A tribunal should not adopt the findings of the BAMS doctor unless satisfied those findings are an accurate reflection of all the medical evidence'.

The assertion that EMP reports are to be preferred has been in every DWP incapacity benefit appeal submission I've seen lately.

Hi Lorraine,

its worth looking at this previous rightsnet thread

http://www.rightsnet.org.uk/forum/appeals/523.html

jim

There is a good possibility that one could be arguing that, whilst it is not an error of law to prefer one medical report over another, it may well be an error of law if in the statement of reasons the Tribunal do not set out their detailed reasoning for accepting that of an EMP, (very rarely a specialist in mental health) arrived at in some 45 minutes, over that of a Consultant psychiatrist.

Clients with mental health problems are are very rarely obvious to an observer, and as any CPN will tell you, accurate diagnosis of their condition, and therefore their needs, takes time.

Thanks for those decisions- i cant find them on commissioners website- are you able to post a link? cheers

I'm sorry but I don't have the above decisions. You can get R(DLA)3/99 (see para 11) on the commissioner's site.