Does anyone recall a Commissioner’s decision in which the representative argued, I think, that because the claimant did not have access to the Disability Handbook which the decision maker and the tribunal might have used when making their decision, that the tribunal’s decision was unsound. I think the claimant had ME/CFS and was represented by someone from an ME support organisation who also argued that the information in the handbook about ME was woefully out-of-date.

I think the Commissioner dismissed the argument about the client not having access to the handbook on the grounds that they did, in fact, have access to it via their representative. It was a relatively recent decision, within the last year.

I'm interested in that, or any other decision that looks at the legal status of the Disability Handbook or similar guidance and whether witholding access to such guidance whilst using it to assisst with decision making might render a decision unlawful.

1. At the time of making the application and at the time of the decision 99% of claimants would not be aware that such a handbook even existed, and whilst some claimants might become aware of it through a representative, not all claimants would have the luxury of a Rep.

The guidance in the handbook is out of date, and in many cases does not cover the particular medical condition adequately - (the same applies to the Decisions Makers guide). As we are often reminded when we've tried to use them in the past, such guidances, HB circulars etc, are not an authoritive statement of the law.

If there was a Comms decision as referred to above, then I would have thought it could only be applied to that particular case, and have little or no weight in any other....?






The guidance in the Disability handbook

Mike,

Did you get cut off in your prime there?

My particular interest in this is in relation to the Disability Living Allowance Advisory Board updates which are sent to Decision Makers and Disability Members of tribunals but which carry a "Health warning" stating that the contents should not be quoted in communications to claimants or their reps. They contain some pretty trenchant views on who is and isn't entitled to DLA and could presumably influence the decisions both at initial claim and appeal stage.

Steve

Steve

It's an age thing ......

Anyway, if there are updates such as the above, then if they are carrying general guidance, then they should be subject to the Freedom of Information Act.......?

Sorry, can't help re particular decision sought but one decision which looks at the legal status of "similar guidance", in this case the Medical Assessment Framework for the II Scheme, is CI/499/2000 (*24/01). Commissioner Jacobs states at para 29-

" No doubt, the MAF was introduced in an attempt to improve the standards of assessments and to increase consistency between them. That is welcome. But guidance must not displace the legal test."

Para 31-

First, the descriptons set out . . . . must not be used in substitution for the legal test.

Subsequent paras reinforce these points.

Maybe not 100% relevant but may be useful?

Mike,

You and me both. They are covered by FOI, that's how I got copies of them, but there are 7 editions over the last few years which may already have afected decisions.

I'm a bit alarmed by articles in them, written by the Boards medical experts and explaining, for example, that social phobia is a not a fear of going out on unfamiliar routes and so the claimant is unlikely to meet the criteria for entitlement to LRM on these grounds alone. That seems a legally questionable and medically contentious statement presented as expert opinion in a publication shared by one party to the appeal and one member of the tribunal but unseen by the appelant.

Steve

When you say the Board's medical experts, are you talking about the much loved SEMA or whatever they are called nowadays...?

No, though we do love SEMA just as much now it's Atos Origin as we did when it was SEMA or even Schlumberger SEMA. A bit like Doctor Who really, keeps coming back with different bodies and different assistants, but underneath still the same loveable national institution that has people hiding behind the sofa and waking up in the middle of the night screaming in panic.

The DLAAB, on the other hand, is a crusty old quango, it's not part of the DWP or TAS. Several members have OBE's, CBE's and the like and they are available to give 'expert' advice to Medical services and to the Secretary of State.

For anyone who is interested the Handbook (second edition, which is probably somewhat out of date) is available at http://www.dwp.gov.uk/medical/dhb/index.asp DLA advisory board website is http://www.dlaab.org.uk/

Some of the Updates were published to the DLAAB website yesterday, following their disclosure under the Freedom of Information Act.

You can read more about them at: http://www.benefitsandwork.co.uk/forums/index.php?showtopic=245

good work steve !

have taken the liberty of also publishing in the news section in case people miss it here

http://www.rightsnet.org.uk/cgi-bin/forwardsql/search.cgi?template2=user_details2.htm&output_number=1&news.ID=113164627191

And this, from Commissioner Goodman in CIB/14332/96 regarding the Incapacity Benefit Handbook: -

"The statements in the handbook are of course not law and cannot be used to override or vary the words of the law itself, as stated in the 1995 regulations. Nevertheless, if there are problems of interpretation, it is permissible for me to consider the official advice that is given to the medical service doctors".

Paul

Thank you all for the various contributions to this thread. I have now found the CD I was thinking of - I got the condition wrong and it's not of much practical help, but still reassuring for me to know that I haven't yet started hallucinating supportive decisions . . . I'm just elderly and slightly befuddled.

The decision I had in mind was CDLA/1564/04 in which the claimant had Guillain-Barre syndrome (GBS). The rep from the GBS Society was not, to put it mildly, a great fan of that "work of fiction" the Disability Handbook:

10. The representative objected to the Secretary of State having earlier relied on the Disability Handbook without including a copy in the papers. But I cannot accept this, as the original grounds of appeal show he had access to it (though he somewhat misrepresents what it says) – as indeed he should have, if he regularly represents claimants.

11. He went on to say that his own experience in the GBS support group belied recovery within a short period, that GPs know nothing about GBS, and that chapter 15 of the Disability Handbook is “largely a work of fiction” and its projected recovery periods “without foundation, pejorative and unlawful”. The claim form “unlawfully” failed to disclose the Cassinelli definition of severe discomfort as less than pain.

Commisioner Fellner decided to sidestep this line of attack thus:

15. If he feels aggrieved about the form of the claim pack or the contents of the Disability Handbook, Mr Cole should address himself to the Department for Work and Pensions, not to the tribunal or to me.

So, not a lot of help in itself in regard to the secret DLAAB briefings. However, the Commissioner dismissed the argument about the Disability Handbook extract not being included in the papers not on the basis that there was no need for it to be included, but on the basis that the rep at the hearing knew of its contents.

So, it does still leave open the argument that if the decision maker and the disability wing member had received an 'expert' DLAAB update of which the claimant and his rep had no access or knowledge, the failure to include it in the papers could constitute an error of law as well as shockingly bad practice on the part of TAS.

Surely hallucinating supportive decisions is just wishful thinking? It happens to me all the time.

It's if you start hallucianting NON supportive decisions you need to worry Steve.

If there was a Woodstein blowing open the Watergates award I'd nominate you for it. This is a fascinating piece of work, if disturbing.

What interests me is that Dr Waddle (as in the fabled 'Waddles signs' so beloved of certain EMPs (and which, when you actually look at them, are quite interesting diagnostic tools) has co-written books with Dr Aylward (co-writer of the Disability Handbook).

Is there an equivalent DLAAB for EMPs, or some sub-committe on the GMC or something?

CI 3758/03 might be slightly tangental - relates to the Medical Assessment Framework but i can't see why it shouldn't hold good for the disability handbook.


"Further, if the tribunal did take account of the Medical Assessment Framework in this case it was also acting unfairly for two separate and further reasons. It had at no time raised this matter with the claimant, and the Secretary of State had not put it in evidence, so the claimant was not aware of it. The Medical Assessment Framework is not law, and cannot be assumed to be known by anyone to whom it has not been notified. And it is not the job of the tribunal to put the views and evidence of one party about levels of assessment before the other party. That itself would call into question the equality of arms. For the Medical Assessment Framework to be put in issue, the Secretary of State must put it fully into the submission made to the tribunal, or otherwise notify the claimant of it, and the tribunal must make it clear how far it is considering that framework in reaching its own decision, or at least invite comments on it. And the tribunal can accept it only as part of its own decision having considered the matter for itself. That must include whether it accepts the analysis of the framework as related to the particular injury, as well as the level of assessments indicated."

jj

It looks like the status of the Handbook may soon be irrelevant anyway. The DWP have privately admitted that it's out-of-date, lacking in detail and responsible for inconsistent decison making and the high number of succesful appeals.

It seems it may be replaced by Award Management Guidance software, which will give DLA decision Makers information about various conditions and guide them into making consistent decisions about "Component and award; Award duration; Post award intervention; Whether to invite a renewal"

The information comes from the minutes of meetings of the Modern Service Working Group obtained using the Freedom of Information Act.

You can find out more at:

http://www.benefitsandwork.co.uk/forums/index.php?showtopic=276

And if I've got it wrong, always a strong possibility, perhaps any Rightsnet members who actually attend MSWG meetings can put me right

Well done once more Steve, and I'd just like to say quite publicly that I utterly agree with your three depressing conclusions.

Still, I imagine that my employing organisation will just be a service provider of some flavour for the DWP within a couple of years anyway (if they're not already).

8 Updates from march 2000 have now been published to the dlaab website

@ http://www.dlaab.org.uk/pubs/publications.htm

(thanks to steve donnison for letting us know)