Conflicting medical evidence according to DWP

Hi,

Sorry to be posting a lot these days, I hope you don't think I'm being a pest.

I was awarded LRC/LRM and I am appealing because I believe that I meet the requirements for HRC/HRM. I know that every appeal carries a risk that the award might be downgraded or rescinded entirely, but I strongly believe that I quite comfortably meet the higher rate criteria for both, so it is worth appealing in my case.

I looked through the bundle of documents sent by the DWP which have been forwarded to the Tribunal Service and one of the documents enclosed was a form from the DWP to Medical Services, requesting an Atos medical. This was requested by the DWP at the reconsideration stage as the original award for LRC/LRM didn't require a medical and the reconsideration didn't revise the decision.

What perplexes me is that the reason stated on the form for requiring this is "conflicting medical evidence". The only form of evidence they had at that point was my own application and a factual report from my GP which backed up everything I wrote. Within my copy of the papers in the bundle, there is not a single piece of evidence that contradicts or conflicts with what I wrote on my application form. They did write to a consultant who declined to respond, but surely that isn't a "conflict" is it?

Obviously I know that you guys here don't have a copy of my application or any inside knowledge about my claim, but do you think if I contacted the DWP, they would be able to tell me where the conflict arose, or would they fob me off saying that they can't comment or some such excuse? I'm conscious of the costs involved when calling the DWP because I always end up in a queue for 30 minutes or more!

Or is there any other course of action? Is it possible that my bundle is incomplete, and if so, what could I do to verify this? Could there have been some conflicting evidence that my GP stated was "harmful to the customer", so I've not been made aware of it?

I think I should be entitled to know about the "conflicting medical evidence" for the purposes of constructing my argument for the tribunal. Wouldn't you agree?

Thanks

It's really impossible for us to give advice on individual cases. Sometimes The DWP will write on a page or pages 'harmful medical evidence'. However, as you are saying it stated 'conflicting medical evidence' it sounds like perhaps what you've stated on your claim pack conflicts with a doctor's opinion, but that's just a guess.

You really need to contact the DWP, if there is conflicting medical evidence, you have a right to know what it is.

Thanks Jim. I completely understand that it's not possible to advise on an individual case by case basis. Certainly all the information that has been disclosed to me thus far doesn't show any conflict because the only source of medical evidence at that point was from my GP who backed up everything I wrote (unless as you say, it's "harmful" so it hasn't been disclosed to me).

Do you know if the DWP can confirm the existence of any such harmful evidence to the customer, even if they can't say what the evidence actually is? i.e. just a 'yes/no' answer regarding if any harmful evidence is on record?

I suppose you're right, and confirming what I knew all along, that as much as I hate to do it, I have to contact the DWP about this to find out what it is.

Jonathan wrote: Thanks Jim. I completely understand that it's not possible to advise on an individual case by case basis. Certainly all the information that has been disclosed to me thus far doesn't show any conflict because the only source of medical evidence at that point was from my GP who backed up everything I wrote (unless as you say, it's "harmful" so it hasn't been disclosed to me).

Do you know if the DWP can confirm the existence of any such harmful evidence to the customer, even if they can't say what the evidence actually is? i.e. just a 'yes/no' answer regarding if any harmful evidence is on record?

I suppose you're right, and confirming what I knew all along, that as much as I hate to do it, I have to contact the DWP about this to find out what it is.

Hi J,

I do not see any reason why the DWP couldn't confirm whether any information that they have used is classed as "Harmful Information" with a simple Yes or No answer, as you suggest.

It would only be the detail of any such information that they could withhold.

Harmful Information is mentioned at 3.2.3 Page 12 of this document :

www.dwp.gov.uk/docs/medical-reports-completion.pdf

See also : 4.2.1 Harmful Information on page 145 of The WCA Handbook, 2nd link from bottom on this page :

ESA Claims Guides

bro58

Jonathan wrote: Thanks Jim. I completely understand that it's not possible to advise on an individual case by case basis. Certainly all the information that has been disclosed to me thus far doesn't show any conflict because the only source of medical evidence at that point was from my GP who backed up everything I wrote (unless as you say, it's "harmful" so it hasn't been disclosed to me).

Do you know if the DWP can confirm the existence of any such harmful evidence to the customer, even if they can't say what the evidence actually is? i.e. just a 'yes/no' answer regarding if any harmful evidence is on record?

I suppose you're right, and confirming what I knew all along, that as much as I hate to do it, I have to contact the DWP about this to find out what it is.

Hi Jonathan

I don't want to alarm you, but I remember when I sat on DLA Tribunals 'harmful medical evidence' would not be included in the appellant's case bundle. This extract from the first link Bro provided confirms this :

3.2.3
Harmful Information

Harmful information is anything that would be considered harmful to a patient’s health, if they were to become aware of it, (e.g. a diagnosis of a malignancy). This may be legally withheld from a patient and would not be released by DWP. Please put any harmful information either in the relevant section of the report or on a separate sheet of paper.

However, if that's the case then you should see your GP as unlike the DWP, they cannot withhold anything about your condition(s) if you insist on knowing. I had the same problem when it was first thought that I probably had MS. However, I saw the Neurologist and insisted that it was my life and my body and I had a right to know. It was then some 3 years later, that I was finally told that I did have MS. That was nearly 30 years ago, and I'm still here

Good luck.

Jim

Hi,

I phoned the DWP today about this. The first person I spoke to suggested that there was a disagreement between what I'd written and what was stated in the GP's factual report. I stressed that there was no such disagreement and he asked me to explain why I thought I was entitled to the higher rates.

I explained that my GP had confirmed that my symptoms are "moderate to severe" and that I depend on third party supervision 24/7 to remain safe. He responded by claiming "oh, well that's why you're only entitled to the lower rate, your symptoms are only moderate which means that we believe you don't suffer from them for the majority of the time."

This annoyed me somewhat because my GP stated that it's a 24/7 issue. And indeed, I told him that with respect, if 24/7 isn't considered to be a majority of the time, then what is?! He asked what exactly my condition was, which I told him, and he said that their guidelines state that it's something that they don't consider for middle/higher rates. I retorted that in Chapter 61 of the Decision Makers Guide, it cites an example case that features the same symptoms that I suffer from, wherein the customer was awarded the middle rate because his issues were night time only, and explained that in my opinion, because I suffer the same during the day and night (and thus need supervision during both the day and night), I should get the higher rate of care.

Then he asked about my mobility problems. I told him that walking triggers pain as a result of a physical cause. "Oh, well, we'd just expect you to take pain killers before walking then". Seriously? What about the "severe discomfort" criteria then? Pain killers don't work!

At that point I suppose he could tell I was getting rather annoyed, and he'd not answered why there was any conflicting medical evidence because his suggestion that what I had written disagreed with the GP's report was false. He said he'd get someone higher up the food chain to phone me back.

After the callback, I was finally told that there was a conflict between what my GP had written and what had been written in an Atos medical report for a separate ESA claim that took place in January. However, it seems the DLA unit were not aware that the entire ESA medical report had been declared by the DWP as being inaccurate and unsound which resulted in me being moved to the WRAG instantly after a decision maker phoned me to talk about some inconsistencies in the report. This is because I have been claiming ESA since 2010 and had always received more than 15 points until the most recent medical which, despite my condition in fact deteriorating, I was awarded 0 points. Ultimately I was moved to the support group after an appeal which lapsed at the reconsideration stage because they revised their decision.

So it looks like I have to write to the Tribunal Service to explain that the evidence used in the ESA medical report is unreliable and shouldn't be used in my DLA appeal. But will they take my word for it? I had a verbal apology from the DWP decision maker who placed me in the WRAG some time in February regarding the improper conduct and outcome of the Atos ESA medical, but it was only verbal, so I have no evidence to enclose to prove it. I do have the DM's name though. I already sent the DWP a copy of the letter showing that I was in the support group for ESA when I asked for a reconsideration (I know it's different criteria, but I thought that it could do no harm to show that the same conditions prove that I am not fit for work or work related activity). And yet they still took the word of the erroneous 0-point ESA medical report as the truth...

Ho hum.