Pip assessment report PA4 V3

[jason35x]

Hi all and congats on a great forum!

Okay I was wondering if anyone could help me out with my dilemma?
I have diabetes and Neuropathy in my hands and feet making tasks difficult. I applied for PIP in May 2014, has my assessment in October 2014 which went well, the nurse agreed I used aids for 4 categories which would have scored me 8 points and standard rate.

I received my decision which took a while and I had scored 4 points and wasn't awarded anything. The decision maker rang and gave me various reasons, none of which I felt held water as she was basing her decision on a grip test on one day for a varying condition. Anyway I asked for a copy of the nurses assessment and for a mandatory reconsideration.

The report arrived which was originally written on the 10th October 2014, I realised it was amended on the 11th November 2014. The amendments were in 2 of the 4 categories agreed by the nurse and so I believe the descriptors were changed to make me not eligible.

I rang Capita and was told they would not hold the ORIGIONAL unedited report and I should contact DWP. Capita also refused to give me the person who deals with their SAR requests.

I rang DWP who told me to request the info through the Cardiff office via SAR channel. I have since received 4 copies of the amended report but none of the original.

DWP SAR office rang me today to tell me the original report is gone, its apparently treated as a task and so when updated on the PC the old one is deleted. Therefore they claim they are unable to tell me what amendments were made to the text or descriptor scores.

I believe the nurse agreed with me and the "RANDOM" audit changed it to a fail.

Suggestions?

Thanks in advance.

Jason

[slipmaster]

not an answer really, but just because the assessor said they agree with you doesn't mean that's what they wrote down.

[jason35x]

Hi Slipmaster and thanks for the reply

I know what you mean but the amended report still has the initial nurses comments like "cannot use a conventional cooker but can use a microwave", so you would assume that it would score 2. Then underneath it has been added to by the auditor saying "Can drive himself to work so can cook a meal" and the score is 0. Really looks like I initially scored an 8 and then it was audited down to 4.

I'm sure someone will have the initial report????

[beau]

How the hell does driving yourself to work mean you can cook a meal? It beggars belief.

[notnamedbill]

Your problem is proving it Jason, capita did the same to my report. Both my wife and me agree what was written after every section but it wasn't the same as the DM received? As I understand it once agreed it cannot be altered but again.....prove it!

[Flymo]

The assessor makes notes on the day of any face to face assessment, but this does not represent a binding promise as to what is in the final report.

The assessor's primary roles are to sift and collect evidence, also to report on the medical aspects of the claim. The assessors make a recommendation as to the most appropriate descriptors (with the accompanying points), but these are a non-binding recommendation to the decision maker. The decision maker's job is to apply the law to the evidence, which is not something the assessors have particular expertise in, also to challenge and test the evidence so far as that is possible.


A key point to remember with PIP is that you can only score points for matters that are an unavoidable consequence of your medical conditions and disabilities. What might have happened in your case, Jason, is that the assessor reported that you use aids, the decision maker queried whether your condition meant you had to use those aids, and in two of the four activities the assessment provider reported that your condition did not make the use of those aids mandatory to carry out the activity safely, as often as necessary, to an acceptable standard and in no more than twice the maximum time taken by a well person. This would have the effect of reducing your score in two of the activities to 0 points. Any changes agreed by the assessment provider were not necessarily agreed by the assessor who carried out your face to face assessment.


There is little point trying to establish what was changed as a result of the interaction between DWP and the assessment provider, as that will not change the outcome. Your task at reconsideration is to make the case for the award of PIP, not to show what is wrong with the processes that have brought you to this point. You cannot say "I disagree with the revised report and want my decision to be based on the original report".

What I recommend you do, if you have not done so already, is submit written reasons as to why the decision should be changed at reconsideration (see the advice on reconsideration and the section on maximising points in the sticky PIP thread for more detail). As you have already asked for reconsideration, if you now intend to make a written submission you should contact DWP urgently and say you do not wish the reconsideration to take place until they have received your written submission.

Even if you establish that there was some kind of defect in the processes following your face to face assessment leading up to the original decision, that can, at most, give you grounds for a complaint but will not result in the award of PIP.

[notnamedbill]

I agree with everything you've said Flymo except for your first two lines! A verbal agreement (as long as you can prove it) is binding, all be it on balance of probability sometimes. So if agreements are made on the contents of written statements of what was said these cannot be altered or amended without prior consent, a report can be written around this but then referenced with the original. No other document can be presented as a true reflection of a meeting, just someone's interpretation!

Surely you agree with this Flymo.

[Flymo]

The assessor is not asked to report what the claimant said verbatim, but to give their interpretation by reporting on various aspects of the claimant's condition. Their task is not to take minutes, but to give an opinion by filtering the claimant's statements and their observations using their medical experience.

If the assessor said "Mr X reported he could dance a jig and count backwards from 1537 in sevens" when what the claimant actually said that they were paralysed below the waist and could not manage simple mental arithmetic, that would be a false statement by the assessor. However, the most important part of the assessment report is the "summary justification" for the descriptors chosen, which are the assessor's professional opinions, based on the evidence and their observations, of the claimant's entitlement to PIP.


You are incorrect to say that a verbal agreement is necessarily binding. If you could prove on the balance of probabilities that a verbal agreement was made, it might represent a binding contract, but only if there is agreement in a legal sense, consideration from both parties (act carried out in return for a promise or a promise given in return for a promise) and intention to create legal relations.


I can come up with three possible ways a claimant and assessor could reach what appears to be a contract.

C: I'd like you to report X.
A: I will report X.

In this case, the claimant's statement is not an offer in the contractual sense, as it does not bind them to do something if accepted unconditionally by the assessor. There's no agreement, so no contract.


C: I'd like you to report X.
A: I will report X.
C: Agreed.

In this case, the assessor has made an offer that the claimant has accepted (the claimant's initial request is a preparatory statement, sometimes called an invitation to treat). At a first glance, we appear to have an offer by the assessor and acceptance by the claimant, which forms agreement. However, it is unclear from the words used whether the assessor intended to be bound formally and irrevocably on the claimant's acceptance - if not, then the assessor's offer is not an offer in the contractual sense, so the claimant cannot bind the assessor by acceptance.

A more serious problem is that the claimant has neither promised to do something nor has made any sort of promise to the assessor, so any contract is void for lack of consideration on the claimant's part.


C: Do you agree to report X?
A: I will report X.

This remedies the lack of agreement (it amounts to the claimant requesting something that the assessor agrees to do), but there is still no consideration on the claimant's part, so any contract is void for lack of consideration by the claimant.



A more fundamental problem whatever the contractual scenario is that the assessor is not empowered to bind the assessment provider, so the most any assessor can do is enter into a contract on their own behalf but not on behalf of the assessment provider. This means any contract could not prevent any other member of staff at the assessment provider amending the report. The report is issued on behalf of the assessment provider, not the individual assessor.

Even if the assessor entered into a binding contract to put a particular statement in the report, there is nothing that contract can do to prevent the original assessor revising their report following a query from DWP. The contract was fulfilled when the assessor put the requested statement in the original version of their report.


The biggest problem of all with trying to view any agreement between claimant and assessor as a contract are the remedies available on breach of contract.

The right to rescission, if it exists, cannot help the claimant, as the claimant wants to rely on the contract, not undo it.

What the claimant wants is specific performance - an order requiring the assessor to stick to the agreement. Specific performance is an equitable remedy, the availability of which is essentially down to what the court believes is in the interests of justice. Specific performance is most common in contractual disputes over real property (land, which in the legal sense also includes buildings), as every piece of land or building is unique and nothing can replace that specific piece of land. It is rarer in other areas of law, where the more usual remedy is damages. The court would weigh the various factors, which includes the assessor's overriding responsibility to report their professional opinion accurately. It would be extremely unlikely any court would order an expert to report a particular statement as their opinion, especially not based on a contract with the person they are engaged to report on. Indeed, the court upholding any contract to include a particular statement in a report begins to look uncomfortably close to blackmail or conspiracy to defraud.

Damages are unlikely to help the claimant, as any loss would be valued bearing in mind the ability of other staff at the assessment provider to change the report unfettered by any contract, also that the DWP decision maker is not bound by anything in the assessment report. If damages were awarded, they would likely be for a token sum (typically £1 or 1p).

The costs of taking a breach of contract claim to court are therefore disproportionate to the remedies available.


Ultimately, the best thing is to put up the strongest possible arguments for the award of benefit at reconsideration, backed by as much evidence as possible. It is possible to overcome any opinion in the assessment report by showing it is more likely than not to be incorrect.

[notnamedbill]

You not asleep either Flymo?

I can agree to what you've said in its entirety.

However

Ones wife and I (posh for 5am) where asked on 13 occasions to confirm that what he had written was a true reflection of we had discussed on each descriptor. On two occasions we agreed to alter some aspect and in the final written section it was reported that I had a reaction to using the peak flow measurer by having whole body ischemia and that my core temperature fell immediately making it impossible for him to complete the required test tree times.

It went like this:

A: I am now going to read through what I have written, you can amend and then we all agree on it
C: yes that is the gist of the conversation
Wife: yes

I'll repeat what I said earlier: the report that the DM worked from was different from the as stated f2f report (taken as the original not as a report based on the f2f assessment). Like you my condition effects almost every section although I feel not to the same extent, with this in mind, some of the discussion was missing and there was no mention of me having an "event" as I call it, albeit a mild one!

Hence my keeping stum because PROVE IT! All that can be said is that the system is not fit for purpose and my reaction as an old AQAP1 MOD Quality Manager (private company) scrap it before we loose the order and our classification.