Examination took all of 6 (yes SIX) minutes as confirmed by both EMP and client. Needless to say client appealed but she only came in today and hearing's next week. Any info on CDs would obviously be of great help. We think we can get plenty of med evidence but no time so if the examination time alone would win us the case then this would be great.

Cheers

Sue

Commissioner Parker's decision in CSIB/69/2003 might be a good starting point.

In her decision she queries -

'... how an adequate history sufficient to answer the necessary relevant points could routinely be taken in ten minutes.

That has not been my experience when sitting on tribunals in such cases as the medical member has been eliciting the necessary information from the appellant.'

Although she concludes that she would 'need medical input before I felt safe in drawing an inference in the present case that ten minutes could not be long enough for the medical adviser to collect sufficient evidence' she nevertheless holds that the Secretary of State has not discharged the burden of proof on the basis that the EMP's medical report was insufficiently thorough, and inconsistent, as well as being illegible in parts.

Six minutes should be just long enough for your client to walk into the hearing room, sit down, have the tribunal introduce itself and explain how independent it is etc .........

Thank you. Wish I could take instructions in 6 mins as it'd make my life a lot easier. EMP's 6 mins has been 3 hours for me up to now.

We've had some success (particularly for mental health appeals) in arguing that Secretary of State has not discharged his burden of proof in establishing grounds to supersede the awarding decision where there is a short medical - I guess along the lines suggested in the Commrs case above. After all there are 25 mental descriptors - all of which should be addressed separately by the examining doctor in addition to the other tasks s/he has to perform. I would feel most mental health medicals lasting less than 25 mins are fair game for this kind of argument. A tribunal chair told me that s/he has allowed a number of appeals on this basis without taking evidence from appellants and DWP have not sought statement of reasons or leave to appeal in any of them. Having said that I had no luck with a similar argument for an appeal about physical descriptors only recently - can depend on chair/circs of case I suppose.
Matthew

Thanks for that Matthew. Appeal solely on mental health but bless him he did go through all the physical descriptors as well in 6 mins so obviously did a thorough job. I've already sent in my sub in which I referred to the points you make.

In his report EMP said simply 'depression and anxiety' and confirmed claimant had told him no other problems. We have a funny feeling he might just be telling little fibs - just one slight thing which I suppose could be easily missed - claimant weighed just 5.5 stone at the time. Perhaps he though she was just looking a bit peaky.

Think there might be a complaint to Medical Services.

Would ir be wise to call your client to give evidence in this case? The better appoach would be to seek a preliminary ruling that there is no case to answer as a BMAS report which lasted 6 mintues can form the basis for supersession : rely ob the commissioner Parker case. The dangers of your client giving evidence are that :

(i)the tribuanl can conduct a PCA via the medical member
(ii)Make a judgement on your client's credibility and then say " despite the many deficiencies in the BMAS report having heard and observed the client the result that the BMAS doctor was correct and we recieve the same result albeit after carrying out a hearing which lasted 40 mintues.

Of course it may go the other way but why take the risk

axm, I don't understand. Can you please clarify the section of your posting "..report lasting 6 mins can form the basis of supersession.."

Sue

sorry i am not used to typing i simply dictate : it should read " cannot form the basis for supersession "

phew

Thanks for all past help. Appeal upheld this morning. Client had put in fresh claim for IB back in June after decision that she was capable (I know, I know...another quick processing). It's still with Medical Services. I understand the claim can be withdrawn as no decision has yet been made but do you think it's the right thing to do?

If a claim put in last June is still waiting to be decided, that would suggest that they have been waiting on the outcome of the appeal: I can't think of any other reason why it should take so long, even allowing for their track record.

Anyway, having won the appeal, the original award is back in place, at least until JCP can draw breath and get a self assessment form out to the client. Therefore the claim that's now pending appears to be superflous, or something along those lines .....

What I didn't want Mike was for claimant to get the arrears after appeal then be found capable from the new claim and we'd have to start the whole ball rolling again.

I spoke to them about the delay with the new claim and they just came up with their normal (for this area anyway) excuses like claimant didn't return this, that and t'other blah blah...nothing to do with awaiting outcome of the appeal. I only took instructions last week so didn't really want to start pushing them to decide on new claim with the hearing being today.

wHAT WAS THE APPEAL OUTCOME. don't kep us in suspense.

Appeal upheld - see my posting on 6th. Based on more points not because of the appallingly short medical assessment unless this would be mentioned in statement of reasons. I'd like to request this to see but am wary in case it opens it up for DWP to request leave although I doubt it. I've written to Medical Services to complain. Clnt had >6 months on £30pw IS (the reduced amount and relatively high SF recovery). She's still not been paid!

What does anyone think about asking for SoR? It might give us some future pointers about whether such short examinations are deemed acceptable by tribunals.