I have an appeal on a DLA case this week and am intending to argue that the EMP report should be disregarded because most of it is illegible. I shall be referring to the guidance to EMPs as reported by Benefits & Work. Has anyone else tried this yet, and if so, how did you get on?

It is a complaint that causes as many problems to tribunals as to reps/claimants. I suspect that they would be more inclined to give your claimant the benefit of the doubt, at the very least, but if the issue was pressed they would presumably adjourn to allow the DWP the opportunity to provide a typed transcript.

Agreed. It is worth making a complaint in any event to medical services.

Starred decision 32/98 has some helpful things to say about an illegible record of proceedings, which might by analogy be extendable to medical evidence:

http://www.osscsc.gov.uk/decisions/archive_decisions/st98/Starred%2032_98.htm

I'm not sure if Commissioner Parker's decision in CSIB/69/2003 may also be worth looking at.

Although it relates to incapacity for work, in that decision, Commissioner Parker holds an EMP's report to be inadequate as it was insufficiently thorough, and inconsistent, as well as being illegible in parts.

For this reason, she substitiutes her own decision, upholding the claimant's appeal, on the basis that the Secretary of State had not dischaged the onus of proof in demonstrating that the conditions of entitlement to incapacity credits were not met.

There's a summary of CSIB/69/2003 in the briefcase area of rightsnet,which includes a link to the full decision.

Hi There,

I used the legibility arguement last Wednesday, 27/04/05 and just as Robbo anticipated the chairman stated that some would be able to read it and some not therefore he adjourned the hearing for a printed copy of the EMP report. This is the second time this appeal has been adjourned due to what I would call failures on the part of the DWP to get it right the first being to get this EMP report as the Decicion Maker only asked Medical Services for advice the first time and the advice was totally wrong.
How many chances does the DWP get to prove their case. All seems very one sided to me.

Brian

Thanks everyone for your contributions. Unfortunately I have nothing to tell you because in the end it turned out that everyone else had a legible copy and one of the tribunal members swapped with me so I had a readable report too. They then allowed me 10 extra minutes to read it, so I never got to use the arguments about "fit for its purpose" after all. Pity!

I would want to know why everybody else had a legible copy? Did the tribunal request one and if so why did it not direct that you were sent a legible copy. If the tribunal (or district chair) did not request it then why were you the only one sent an ilegible copy. Hmmm!

I fear that what happened is that someone used a defective photocopier and I got the duff copy. My client had a legible one, as it turned out.

Interestingly, tomorrow I might get a chance to argue that another EMP report is unfit for its purpose. I can read it alright but it contains conclusions which appear to be at odds with the evidence and unjustified (and therefore gratuitous opinions). He has also crossed out 2/3 as level of disability in the left leg and changed it later to 1. Where the note at the side read "muscles wasted globally" he has later added (in much neater handwriting) "of leg but full function."

Hmmm indeed!