No medical evidence (a bit long, sorry!)

2 weeks ago I attended a DLA tribunal; I took a family member with me.

I suffer from ME and am severely affected with huge difficulties. I have already HRM as a result of EMP report 5 years ago. My health has worsened considerably since then. I applied for Care august 2011.

At the tribunal my submission, which included a diary, was read out loud while I was waiting outside the room (I could hear this). Eventually, I was shown into the room by the clerk but my submission was not discussed with me at all. I was asked no questions about my care needs. It was all over in less than 5 minutes.

I had with me a support letter from my own doctor, but the chair disregarded it in favour of the original report filled in by a GP at the health centre who is not my doctor, stating that he (the doctor) is able to read off my notes. This was one of the reasons for my appeal. Incidentally this doctor has stated “not known” for care needs but the report is supportive of a mobility claim.

The chair (not sure what the official title is) of the tribunal then stated I had no evidence for my condition (repeatedly) and was questioning my award for mobility. I remembered that mobility award was based on EMP report 5 years ago and that I had asked for another EMP visit during this claim, I pointed this out.

At this point the tribunal was adjourned to gather medical evidence and I have been requested to give my GP details again. I was told I would have an EMP visit.

I have had two MRI’s and EEG and they are all reported as within normal limits, (not epilepsy or MS). I have an unidentified bright spot on my MRI which could be caused by the migraines I suffer from and is otherwise normal, this is why DWP are saying I have no evidence. But the EEG is not normal (as in normal healthy person) and is consistent with findings in common with other ME sufferers.

The question I have is what I can expect from the next tribunal, will they just rely on the EMP report? I am hoping the EMP will be objective but unfortunately after the tribunal experience I worry I will get a “wrong-un” with pre- conceived ideas about ME.

Would I be able to use my EEG as evidence or would it be thrown out, because, as yet, there are no recognised diagnostic tests for ME.

I am very worried about gathering the wrong type of evidence, it took an awful lot of effort to put together a submission and it was complete waste of my limited energy. If a tribunal will not accept a letter of support from a GP, a diary or discuss with me my care needs, what else will they accept as evidence?

Thank you Gordon; I was considering going back to my GP but do not like to pester, I think it would be a good idea for my doctor to confirm (again), what my difficulties are.

I am relieved that the tribunal will re-convened, I was worried that a less than scrupulous EMP report would cause it to be cancelled! I don’t know why I am so worried about the EMP visit, the last one I had was fair in her assessment, but times have changed.

I think the “chair” at the tribunal was fully aware that ME is a physical condition, the sticking point,for him, was my having “no evidence” that I have ME.

At the tribunal my submission, which included a diary, was read out loud while I was waiting outside the room (I could hear this). Eventually, I was shown into the room by the clerk but my submission was not discussed with me at all. I was asked no questions about my care needs. It was all over in less than 5 minutes.

Hi TH,

This is appalling. I was a Welfare Rights Officer for over 25 years and attended many DLA Tribunals as a Representative. I also sat as the Disability Specialist on DLA Tribunals for over 10 years.

You should have not been asked to leave the room whilst the Tribunal were deciding your case, you should have been allowed to state your care needs to the Tribunal and the panel should have asked you questions about your condition. Once that procedure was completed, you are then asked to leave the room to allow the panel to discuss your appeal, and then should be invited back into the room and the Tribunal Judge would in most case have announced the panel's decision.

I appreciate the fact that the Tribunal haven't reached a decision but have adjourned to allow an EMP to examine you.

Nevertheless, in my opinion, the failure to let you state your case and go through your submission is in breach of Article 6 of the Human Rights Act 1998- right to a fair trial. Had you been allowed to present your case, the EMP visit may not have been necessary.

I can only advise you to write to the Regional Judge at the Regional Office which should be on your case papers and explain to him/her about what happened. Regretfully the Tribunal's decision cannot be set-aside, as there was no decision on your claim, just an adjournment for an EMP examination. However, the Tribunal Judge (Chairman) was wrong in refusing to allow you to state your case, and this is something that the Regional Judge would want to know about. If you can tell me the area in which your appeal was heard, I can provide you with the name of the Regional Judge, that way, you can be certain that your complaint reaches him/her which it may not if it's just addressed to the Tribunals Service Regional Office.

One other thing you should be aware of, is that once the EMP has competed their medical report and returned it to the Tribunals Service your appeal will be reconvened. However, it's very unlikely that it will be the same Tribunal Panel which hears your appeal. The vast majority of First-tier Tribunals including Tribunal Judges, Medical Members & Disability Specialists are not employed by the Tribunals Service, they are Judicial Post Holders who are paid a fee for each day or half day that they sit on a Tribunal.

I was a Panel Member on numerous adjourned appeals, and because all the panel only worked part-time, e.g. I only did 1 day a week, so it was virtually impossible to get all three panel members who'd adjourned the hearing to sit together again, otherwise the waiting time would have been much longer.

The only exception to this that I can recall, is if the appellant appealed to the Social Security Commissioners ( now called the Upper Tribunal) and they directed that the reconvened appeal be heard by the same panel, which was very rare.

I'd advise you to download the Benchbook from the members area as this is 'the bible' as to how Tribunals should be conducted. Our copy is out-of-date, as the latest copy August 2008 is no longer available in the public domain. Nevertheless, our copy contains all that the latest edition does, except for some minor editions.

You can download the Benchbook from www.benefitsandwork.co.uk/help-for-claimants/dla/#dwp and you may wish to have a look at other DLA resources, for example DLA Medicals.

Good luck.

Jim