Medical Reports

Luke,

I took quite a bit of time in replying to your post, but I haven't had any reply to it.

It is very helpful when moderators reply to posts that member provides us with some feedback on the answers we provide. This helps us to ensure that we have given the right information and the poster is happy with the reply.

It may be that for health reasons, you haven't been back online. If that's the case, please accept my apologies, and I hope you will reply when you're feeling better.

Regards.

Jim

On 8th April 2013 I was refused DLA by a DM and I then lodged an appeal to the Tribunal Service on a GL24. The DWP did not forward my appeal to the Tribunal Service straightaway but a different DM wrote to a physiotherapist that had discharged me for any further treatment on my back by her on 3rd April 2013 as it was not helping, her having stated in the discharge letter she sent to my Doctor that she felt I should be referred to see a Rheumatologist to find out if my back pain was being caused by Psoriatic Arthritis. Incredibly this same Physiotherapist then completed a questionaire for the DM who although the decision to refuse me DLA was already made in April, this DM had written to her on the 29th May 2013 asking her to make a report which was then regarded by him as being a factual report and which has stated in the report a tick box at number 4, marked yes in answer to a question as to whether i could walk outdoors and her then giving an opinion at number 5 that I would be able to walk with a normal gait and without pain etc these matters being dated 11th June 2013.The DM then apparently reconsidered my claim using the alleged factual Report of the Physiotherapist and stated he was refusing to change the previous decision not to award me DLA and the papers were then sent to me using the evidence of the Report he had obtained from the Physio in June to be the main evidence to refute my claim. The Report of the Physiotherapist was not only contradictory to her own letter to my GP but was not based upon any knowledge by her of a clinical medical condition of anterior lipping in the L4/L5 vertebrae that had been subsequently revealed from X-rays taken of my back in August 2013 which my GP had taken in an attempt to find out an explanation of why I was suffering the severe pain.
The Tribunal has now refused my appeal stating that the best evidence for their decision was that of the Physiotherapist which they have found to be factual and for which they have stated in there reasons that there is and can be no credible challenge by me to and from which they have regarded this Physiotherapists opinion as factual and expert for them to determine that I can walk without severe discomfort and them stating that they are confirming the original DM's decision of 8th April 2013 which was actually made without regard to the physiotherapist report.
I have been turned down by the FTT Judge for leave to appeal and he has stated that my grounds of appeal do not show any error of law MATERIAL to his decision.
Can anybody offer me any advice or assistance in these matters because I am seriously distressed by them?
Despite the fact that i have a proven clinical medical condition that confirms I have pain which I have claimed increases in severity when I walk causing me severe discomfort I have to endure a Tribunal stating to me that it is a fact that they accept the physiotherapists report made 3 months after she discharged me from any further treatment because it was not helping me with my pain because of the fact that she simply says that I would be able to walk without any pain.
I cannot understand why the Physiotherapist has apparently decided that I can have pain in my back but that it cannot be present when I am walking and that a Tribunal Judge is happy to accept that this is a fact which is not made by him in error of law.
Please can someone help?

Hi Luke,

I have already responded in detail and in as simple terms as possible in this thread :
www.benefitsandwork.co.uk/forum?view=topic&catid=10&id=100819

Once a member starts a thread asking for advice, then if they have further comments to add, they should do so by posting in the original thread, and not start a new thread which makes it hard for moderators to follow up your previous postings.

For this reason I am locking this new thread, and will try to merge it with your original thread.

I must also ask you to bear in mind the Forum FAQ's which explains quite clearly that we cannot give advice on individual claims in an open forum as we do not have have access to your DWP case records.

You need to seek 'face to face; advice from a benefits adviser with specific knowledge of the problem you are seeking advice about.

Regards.

Jim

Luke,

Just to add to my previous comment. When a claimant lodged an appeal on Form GL24, then before it is sent to the then Tribunals Service it was always reconsidered, usually by a more senior Decision Maker, and if the reconsideration is in your favour, then your appeal automatically lapses.

As your reconsideration wasn't successful, it would have to be taken over by another Decision Maker, for them to seek further information from whom they thought could provide them additional evidence.

At that time those were the rules, a claimant could either ask for a reconsideration or submit a GL24. However as stated above, before an appeal was passed to the Tribunals Service it was always reconsidered by a different DM. Those were the rules at the time of your appeal. Now, under new regulations it is no longer possible to appeal, a claimant must first have a Mandatory Reconsideration before they can lodge an appeal. See Appeals Reform

I'm aware that this didn't happen to you, but have included it for the benefit of other members.

As I said in my detailed reply, the fact that the FtT Judge has refused your application to the UT, it is of no consequence in the outcome of UT's, as legally you can appeal direct to the UT Judge, and it will be dealt with in the same manner as if the FtT Judge had agreed your application to the UT.

It will be the UT Judge's role to decide why the FtT decided to use a Physiotherapist and whether doing so was correct or other medical evidence should also have been obtained.

See Appealing to the Upper Tribunal against a First-tier Tribunal decision (Updated 18/03/2014.)

I hope this post is of some assurance.

Good luck.

Jim

Dear Jim,
Thanks for the time you have spent on my post.
I am afraid I am not very adept at using this type of site on the computer.
I am not entirely sure that I am making my point clear about the Decision Maker's actions but I have looked at the links you have provided for to assist me and I do appreciate the time you have taken and your helpful advice.
In my case the First DM simply refused my claim for DLA but there was no further reconsideration by a Senior DM before I appealed the decision and it was only after a full month had elapsed after I had lodged my appeal and given the DWP my grounds for showing that the decision was wrong that a different DM then wrote to the Physiotherapist even though I was no longer a patient of her's and telling her that a person must be severely disabled to receive DLA and asking her opinions on a Form 'DBD377(N) Physiotherapist' which does not seem to exist anywhere on the DWP website or on any other website for that matter.
Clearly the DM sought to obtain opinion for the specific purpose of being contradictory evidence against my claim and for it to be specifically considered by the tribunal hearing the appeal so as to use for to justify the first DM's refusal.
I say this because the physio's report was submitted directly to the Tribunal Service as part of the appeal papers without my being given or having any opportunity of challenging the credibility or substance of that evidence with the DWP before it was sent off to the Tribunal service, so clearly no matter what I should have had to say about it the DM had decided that he was not going to entertain my comments or views.
I also notice from the new rules in the Appeals Reform that you kindly provided the link for, that the purpose of those rules are apparently now aimed at resolving disputed issues as quickly as possible without the need for Tribunal Hearings.
In my case however and although I appreciate that it was before these new rules came into force, the DM of the DWP was clearly intent upon creating further issues and complications to be dealt with solely by the Tribunal Service and thereby protracting the dispute instead of their decision maker, who is ultimately responsible for making decisions on facts as to who should be entitled to awards of DLA, determining the issue fairly and quickly.
You have said to me " As I said in my detailed reply, the fact that the FtT Judge has refused your application to the UT, it is of no consequence in the outcome of UT's, as legally you can appeal direct to the UT Judge, and it will be dealt with in the same manner as if the FtT Judge had agreed your application to the UT."
If that were to be correct then I would not be particularly concerned about the fact that the FTT Judge has refused me leave to appeal.
However I have been in touch with the UT and they have told me that my application for leave to appeal will now be decided by an Upper Tribunal Judge BEFORE any comments or submissions are sought from the DWP on my grounds of appeal and if the UT Judge refuses my application for leave to appeal then the DWP will not be asked to say anything at all.
If what I am being told by the UT is correct, then there is a significant and considerable difference between the FTT judge granting or refusing leave to appeal because if leave had been granted then the DWP would be obliged to comment on my grounds of appeal which I believe they would agree with but unless the UT Judge decides to contradict the FTT Judge the DWP will not have to say anything even if they would've agreed with my arguments because they will not even be seeing them.
Is what the Upper Tribunal has told me about this matter correct? because the matter on the DisabilityRights UK fact sheet appears to confirm that what you are saying is correct and that submissions would be sought from the DWP before leave to appeal is decided but the Upper Tribunal has told me categorically that this is not what will happen to my application and they have left me in no doubt whatsoever that the UT Judge will decide on leave to appeal first and if I am refused that then the DWP will not be asked to make any submission.
I hope I have explained these matters sufficiently and once again I thank you for your time and assistance.