Who is legally responsible??

[wanton]

Hi, I am confused, stressed and depressed!

 

I am 65 (65 last June).

 

 

I have had a DLA award since 1995, HRM & MRC.

 

 

I have had reviews over the time I have claimed, the last being in 2011 when it was again re-awarded indefinitely.

 

As I was under 65 when PIP came in and will be over 65 by the time PIP goes nationwide,

I am told that I will be in the first wave due to my age to be re-assessed for PIP.

 

All of that is a fact.

 

Given that it may well be next year when things start to happen I

am trying to get my head round the claiming principle of PIP.

 

 

I have done some assessing of myself and find that I might just scrape in with the standard rate for mobility,

but it is unlikely that the care element will be awarded.

 

So given that I have to concentrate on the mobility part

I simply can't work out who's responsibility it is to obtain and submit supporting evidence.

 

 

The form tells me that I should if I can without cost to me,

send what I feel is appropriate to support the descriptors for mobility.

 

 

Then I read of a recent report from the select committee that the obtaining of evidence should and must be the responsibility of the DWP.

 

What I would like to know is who is held to have the legal requirement to collect and obtain the evidence to support any claim.

 

 

Of course most people would say that the claimant should if they want to help themselves,

but not everybody can and is able to do that for one reason or another.

Even simple reports can cost the claimant money.

 

As I understand it,

the onus is upon the DWP to refuse a claim after seeking and obtaining evidence which could support or contradict a claim.

 

 

If the claimant then appeals, it is clear that the onus then moves to the claimant to submit evidence in support of that appeal.

[reallymadwoman]

I can't comment on PIP specifically, but my response is based upon knowledge of how DWP administer other disability and sickness benefits.

 

The bottom line is that in most cases DWP or whoever is assessing you can but don't obtain any evidence. If they do, it's most likely to be from your GP who is often not the best person to provide that evidence - few people would discuss their mobility/care needs with their GP in any detail. If you can do so, you are strongly advised to submit as much evidence as you can to support your claim not least because it reduces the chance that you will have to have a face to face assessment. That evidence can be from your GP, physio, consultant, mental health nurse or anyone who has knowledge of your needs, even your carer or partner.

[wanton]

I can't comment on PIP specifically, but my response is based upon knowledge of how DWP administer other disability and sickness benefits.

 

The bottom line is that in most cases DWP or whoever is assessing you can but don't obtain any evidence. If they do, it's most likely to be from your GP who is often not the best person to provide that evidence - few people would discuss their mobility/care needs with their GP in any detail. If you can do so, you are strongly advised to submit as much evidence as you can to support your claim not least because it reduces the chance that you will have to have a face to face assessment. That evidence can be from your GP, physio, consultant, mental health nurse or anyone who has knowledge of your needs, even your carer or partner.

 

 

Thank you. That is as was expected but it doesn't explain who is ultimately legally responsible to obtain the evidence in order that a proper fair and balanced decision can be reached.

I am thinking that if you were charged with a criminal offence and were appearing in court, it is for the prosecution to prove that you did it with evidence that they gathered. If during that gathering of evidence if they find that it actually supports your argument that you are innocent they must hand over that evidence to the defence team. The person that is charged does not have to prove anything.

So does this not follow through to the DWP and benefit claims?

Claim is made, then the DWP have to either accept it of refuse it. In doing so are they not responsible for the gathering of the evidence to come to that decision?

This is what the select committee say that should be happening.

 

 

It will certainly help me as a. I don't have the funds to pay for evidence and b. I don't actually have any contact with anybody anymore other than my GP when I put my repeat prescription in for my month's supply of drugs. I also only have the annual 'chat' - all of 3mins with the GP, just to ask if I am happy, whereupon my reply is always - as happy as I can be under the circumstances.

 

 

I cannot prove that I currently have mobility issues other than that I had them 20 years ago and nothing has improved.

Edited August 27, 2014 by wanton

[reallymadwoman]

This is an issue that has been raised repeatedly. Whilst DWP can obtain evidence to assist in deciding your claim, they're not under any obligation to do so. This is even where a court has found that for claimants with mental health issues and learning disabilities, by not obtaining evidence the DWP are discriminating against them. Despite losing the appeal DWP still will not normally obtain medical evidence for 'vulnerable' claimants, so there's not much chance for anyone else.

 

The only time where the situation changes is if you appeal when the tribunal can ask DWP to obtain evidence, at which point they are obliged to do so.

[Guest]

The dwp have stated previously, I think it was in their papers for the tribunal that I had with them, there was a quote stating that the "burden of proof" was the responsibility of the claimant. so its up to the claimant to provide evidence and proof of the illness/condition and then fully explain how it affects them in their daily life.

 

Rightly or wrongly it seems to me that the dwp are a law unto themselves. In any case I would always get evidence and send it in/provide it, rather than trust them or anyone else to do it for me, unless of course it was an advocate for me.

[id6052]

In my experience, the burden of proof on establishing entitlement to a benefit lies with the claimant.

 

Once entitlement has been established, the burden of proof lies with the person who wishes to alter the award.

e.g. if the DWP want to terminate/supersede/revise an award of their own volition, they need to be able to demonstrate grounds to do so

alternatively if the claimant wants the award revised/superseded, the burden lies with the claimant

[wanton]

I'm sorry, but I think that we must all be looking and reading different versions of the same book!

This is an extract taken from a letter from the Minister to the Committee Chair in respect of an evidence session held on the 21st January 2013.

 

 

"Where additional evidence is needed, assessment providers will be responsible for gathering that evidence..................While we encourage claimants to submit any evidence they have to hand, we are clear......that we do not expect them to request or pay for any supporting evidence.

The burden of proof is in the hands of the claimant. That burden is discharged when and after they have completed the claim form fully.

 

 

I have not been able to find anywhere any mention in any document so far that clearly dictates that the onus/burden is on the claimant to not only make a valid claim, but also to supply the evidence required by the Decision Maker.

 

 

To me it appears quite simple, if the DWP/Medical Services refuse to gather all of the appropriate evidence from all of those mentioned on the claim form that would be able to supply that evidence, then they have clearly failed to discharge their duty.

 

 

I am looking for chapter and verse that puts the onus on the DWP to gather all of the evidence, not just the bits they want to see.

 

 

This does affect me and must affect 1000's of others. Not all of us have access to professional welfare guidance, not all of us are clever enough, physically or mentally, to be able to produce a claim form backed up with specific evidence supporting the relevant descriptors.

 

 

When my turn comes I would like to be able to throw the whole thing back at the DWP and get them to do the asking and paying.

[reallymadwoman]

The legislation requiring DWP to obtain medical evidence simply doesn't exist. In an ideal world they would do so, but in reality they will claim that the claim form and further information provided by the claimant plus the face to face assessment and opinion of the healthcare professional are sufficient to make a decisio, thus putting the onus back on to the claimant if they disagree with that decision.

[Guest]

Totally right RMW.......the dwp told me quite clearly that as I was claiming to be unfit I had to prove it, prove my entitlement. This was done by me supplying necessary evidence. They wouldn't contact a GP as they don't pay attention to them anyhow, and I cant see them contacting specialists etc, its always the claimants who have to provide medical reports and specialist letters, without them there is no hope. If you just fill in the form then the claim will not be considered, and they will say there is no evidence. I would love to actually see any proof of them gathering anything.

[wanton]

Totally right RMW.......the dwp told me quite clearly that as I was claiming to be unfit I had to prove it, prove my entitlement. This was done by me supplying necessary evidence. They wouldn't contact a GP as they don't pay attention to them anyhow, and I cant see them contacting specialists etc, its always the claimants who have to provide medical reports and specialist letters, without them there is no hope. If you just fill in the form then the claim will not be considered, and they will say there is no evidence. I would love to actually see any proof of them gathering anything.

 

 

 

Then you should have challenged it if it was for a PIP claim.

 

 

The DWP have now quite clearly set down in a written answer given by the Minister that the claimant is only encouraged to supply evidence if it actually exists and is relevant, and that the claimant is not expected to request or pay for any evidence. The Minister went on to say that the 'assessment provider' is responsible and clearly the one that must obtain evidence from all sectors of the claimants health care professionals.

 

 

Now if the DWP/assessment providers are failing to do that in respect of a PIP claim, then they should be directed by the claimant to the written statement made by the Minister.

[carly123]

I applied for esa and got put straight into support group 10 weeks later without a face to face,I didn't send any evidence,I didn't know that I had to as it was my first time applying,I don't know if they contacted my doctor,but I can't see them awarding me esa on the strength of my form alone,maybe I was just lucky and got a person at Dwp that knows how to do their job,hopefully I get the same person when I get reviewed.

Edited August 31, 2014 by carly123

[id6052]

Regulation 8 of the Social Security (Personal Independence Payments) Regulations 2013

 

Information or evidence required for determining limited or severely limited ability to carry out activities

 

8. (1) The Secretary of State may require C to provide any information or evidence required to determine whether C has limited ability or severely limited ability to carry out daily living activities or mobility activities.

 

(2) Where information or evidence is requested under paragraph (1), C must provide the information or evidence to the Secretary of State within one month from the date of the request being made or within such longer period as the Secretary of State may consider reasonable in the circumstances of the particular case.

 

(3) Where C fails without good reason to comply with the request referred to in paragraph (1), a negative determination in relation to the component to which the failure related must be made.

 

http://www.legislation.gov.uk/uksi/2013/377/regulation/8/made

[reallymadwoman]

Ultimately, the regulations take precedence over any statement by a minister. Furthermore, according to that minister, assessment providers are only responsible for gathering that evidence 'where additional evidence is needed'.

 

As I stated, even if it were in the regulations, that last bit is their get out - they decide if they have enough evidence. In the vast majority of cases DWP/ATOS/Capita will be perfectly happy to decide a claim on the basis of the form and a face to face assessment, which they will consider enough evidence. If they don't think additional evidence is needed, they won't ask for it.

[Lilly_Monroe]

Surely at the end of the day why risk failure, irrespective if the DWP are meant to collect all the evidence or not.

Collect and provide everything you can yourself, that way it is there in front of them.

I would/will gladly spend £10 for a letter from my doc and pay for my records if it gives me the best possible chance of passing any medical.

 

You cannot win by saying the onus is on them, as they will wriggle out of it, so why put added pressure and the risk of failure in the way.

[reallymadwoman]

Unfortunately, many doctors charge up to or more than £100 for letters. It is a failing of the system that in order to get money to pay for the extra expenses of being sick or disabled it may be necessary to spend quite a lot of the money provided to meet basic living costs.

[worried33]

I applied for esa and got put straight into support group 10 weeks later without a face to face,I didn't send any evidence,I didn't know that I had to as it was my first time applying,I don't know if they contacted my doctor,but I can't see them awarding me esa on the strength of my form alone,maybe I was just lucky and got a person at Dwp that knows how to do their job,hopefully I get the same person when I get reviewed.

 

who knows just be happy it happened and you didn't get extra stress from it.

 

others have also got SG with no WCA and just a form, hope you get better, best of luck.

[wanton]

who knows just be happy it happened and you didn't get extra stress from it.

 

others have also got SG with no WCA and just a form, hope you get better, best of luck.

 

 

 

Likewise. I claimed ESA back in late 2009, and after an assessment, the DWP decided that I was completely fit for work. I appealed and told the DWP to re-read what I had put on the application form and for them to get in touch with the people (GP, Social Worker, CPN etc) that knew what problems I faced. They contacted my GP and OT and a few weeks later they revised their decision to put me in the Support Group for the next 3 years.

 

 

The DWP have a responsibility to ensure that they gather evidence from the people nominated by the claimant and not to just rely on the assessment.

 

 

Incidentally I didn't send anything to the DWP just the ESA50 but would point out that the ESA50 was fully and comprehensively completed which was my responsibility.

[Nystagmite]

The DWP have a responsibility to ensure that they gather evidence from the people nominated by the claimant and not to just rely on the assessment.

 

They do? I thought they only did this is they felt they needed more information?

[carly123]

who knows just be happy it happened and you didn't get extra stress from it.

 

others have also got SG with no WCA and just a form, hope you get better, best of luck.

 

Thanks worried33.

[wanton]

They do? I thought they only did this is they felt they needed more information?

Thanks, Even those in the DWP must have more than a cell of brain power to even think that the be all and end all of evidence rests entirely on the claim form and an assessment. They have a duty to come to a decision that is based on evidence. Put simply, if the claim form states that I cannot walk more than 2 metres and having given the reasons why along with a whole list of professionals that can confirm this to be the case, and yet the assessment report states that I can walk for 500 metres with no problem, surely that should ring bells in the head of Decision Maker? It would be wrong to base the decision on the report without seeking other evidence to either contradict my statement or agree it. If they don't then that is nothing more than a 'kangaroo court hearing'.

In my ESA case I made them ask for independent reports which when they came back, confirmed everything that I had said on the ESA50 was correct and that they completely ridiculed the ATOS assessment! Initially the DWP chose to ignore everything that I had put on the ESA50 and believed in the entirety of the ATOS report. So yes they should obtain and are required to do so in the interests of getting to the right decision first time.

[Nystagmite]

If you want the right decision, you provide the evidence to back up your claim. I did that, GP got contacted and I was put into the support group without having to see ATOS.

[wanton]

If you want the right decision, you provide the evidence to back up your claim. I did that, GP got contacted and I was put into the support group without having to see ATOS.

 

Thank you. It is quite clear in the regulations that the claimant is NOT required to obtain any evidence that isn't already to hand such as a repeat prescription list or maybe a copy of a letter they may have received from their consultant.

 

 

The DWP are charged with the responsibility of obtaining any additional evidence that will help them come to a fair and balanced decision. That may mean them writing and paying for reports as well as serving notice on the claimant (the above reg you quoted) to submit evidence that the DWP believe the claimant is in possession of.

 

 

If we go along with your suggestion what then is the point of the regulation that states what the responsibility of the claimant is? Seems to me that you are willing to allow the DWP to not do their job.

 

 

Likewise for ESA, up until I believe 2012/13 it was the case that you were actively advised by the DWP/ATOS that you should not send any evidence in at all with the ESA50. Staying with ESA at the moment, maybe you could enlighten me as to why the ESA50 made great pains to ask the claimant to supply details of whom may be best contacted to provide the additional evidence if as you say, the claimant should provide the evidence in any case - what is the point then of listing these individuals down?

 

 

Personally I think, much in common with society today, that people are so down trodden by government thinking that they will not fight or object to anything anymore. Whatever happened to a little backbone and make challenges of the DWP for their failings. I hear and see now that people are waiting upwards of 26+ weeks before they are asked to attend an assessment. The assessment should have been completed by the 13th week, and if it wasn't then by default the claimant must be placed in one of the two groups until the assessment and decision is carried out. Why should it be acceptable for the claimant to linger on the assessment rate because the DWP can't get their act together?

I have gone way off topic, but I believe that an answer to your comment was required.

[Lilly_Monroe]

If you want the right decision, you provide the evidence to back up your claim. I did that, GP got contacted and I was put into the support group without having to see ATOS.

 

I did likewise; I was asked to supply supporting evidence of which my CPN wrote me a letter, I was moved into the support group with no medical.

To me that is a 100% good result.

If left to the DWP I would still be in the WRAG group as they would not have obtained that supporting evidence.

 

For me it is ALL about the right result - for me.

I am not bothered who should provide/ask for what I just want the best outcome and as simple as possible.

[wanton]

I did likewise; I was asked to supply supporting evidence of which my CPN wrote me a letter, I was moved into the support group with no medical.

To me that is a 100% good result.

If left to the DWP I would still be in the WRAG group as they would not have obtained that supporting evidence.

 

For me it is ALL about the right result - for me.

I am not bothered who should provide/ask for what I just want the best outcome and as simple as possible.

 

Thank you. According to the rules and regulations you did the correct thing. You made an appeal to be moved from the WRAG to the Support Group. Appealing a decision puts the onus on the claimant to supply the evidence that you want the DWP to consider. In your case the DWP were under no obligation whatsoever to gather any evidence.

 

 

However in an initial claim, the onus is clearly on the DWP to gather any additional evidence as it is they who are required to disprove or prove your claim. It is not for you to prove what you claim to be the truth.

[Nystagmite]

I thought it was you who had to prove your claim and not DWP?

 

I've been in two situations (including a tribunal) where the other party (DWP and tribunal service) have contacted my consultants and GP for more evidence. I provided the evidence I had and was then written to, to get my permission to get my medical records. This in turn, meant I ended up with the right result.