Sun 06-Apr-08 04:00 PM by iut044

Hi

In a couple of weeks I am going to be repersenting a client at an Incapacity Benefit appeal.

The client has only just informed myself about problems with her back and neck! She did not mention these in her IB50 or during her medical. Additionally my client has not had treatment for these conditions for a number of years.

I have already written a letter to her GP asking for independent medical evidence and it is a bit late now to be writing another letter.

The client received nine points on the mental descriptors, so only missed out by one point. She also has one black out a month which if the tribunal accepts our argument, will be enough to qualify her via the physical descriptors.

Should I include the problems with the back and neck in my submission?

Thanks

yes, so long as the client has a good reason for not mentioning them in the first place. i did an Incap appeal last year for a lady who, due to embarassment, had not mentioned her incontinence.... we won the appeal, her evidence being convincing and backed up by the history.

Claire Hodgson,

Well the client does not really have a good reason. She did not mention the problems with her neck and back because she does not consider these to be her main problems. Although the client does suffer from depression.

You say that the evidence was backed up by history, was that medical evidence?

I think that if you have several medical problems, and have previously been certified by your GP on the grounds of the most incapacitating, it's quite reasonable to think of that as being the one "they" want to know about. Indeed it's perfectly possible with your client that with the physical problems alone she wouldn't be or consider herself incapable of work. Depression makes pain very much harder to bear and there is lots of evidence that depression is one of the commonest "causes" of back pain.
So if you have evidence that her physical problems are genuine and persisting go with it. Hoepefully a Tribunal will understand why she faield to mention this earlier - it wasn't what she was thinking about. From what you say you may need only six points for physical problems even if you can't find any more for mental health, so it could well be at a fairly minor level that would be nowhere near the threshold on its own.
I was once in a group of people in their 50s who all assessed themselves on the PCA as it stands. No-one got less than 9 points on physical descriptors and and least two were over the 15 points - yet everyone was in demanding and responsible jobs. Mental health is much more important than aches and pains on their own.
I certainly get 7 for standing, a I was only too well aware by the end of the concert I sang in last night.

agree with Ariadne....time does us all no favours and i could pass the PCA as well

also, pain can cause depression ....it can be a vicious circle that way.

Mon 07-Apr-08 08:43 AM by iut044

Thanks for your help ariadne2


You say "if you have evidence that her physical problems are genuine and persisting go with it". The only evidence that I have of her physical problems are what she has told me.

Although in a different context, see CA/1481/2003. Should be of use.

Many thanks for everybody's help.

I won the appeal by getting an extra point on the mental descriptors.

I included the physical problems in my submission but the tribunal said at the start that they would not consider them as there was no evidence at all that she suffered from them.

Rubbish. Of course there was evidence, your client's. What they meant was it didn't carry much weight, having as far as they could see appeared out of nowhere and not being corroborated anywhere else. It's one thing to say the evidence wasn't very strong, quite another to say it didn't exist, and if your client hadn't in the event won it would have been a mistake in law justifying a set-aside.

I agree with you ariadne2.

However the tribunal said that they were not willing to discuss the physical evidence due to the lack of proof and the closeness of the client to meeting the mental descriptors. I think the tribunal were thinking from the time point of view that it would not be justifed to discuss these issues because I had disputed about 10 of the mental descriptors. The situation was not helped though by me sending the submission direct to the venue, when I would have been better sending it to the central office to ensure that the tribunal did not receive the document on the last minute.

I still do not think it is fair though, enough time should be allocated for the case to be heard fairly.