JusticeJudge Mark in an Upper Tribunal decision on 13th June, (CE/3883/2012 [2013] UKUT 269 (AAC) )

made a ruling that an appropriate medical professional must do the medical assessment of the claimant for his/her evidence to have probative value. In this case, the medical person doing the assessment was a physio, and the person being assessed had mental health problems.

Here is some of what he said in his judgement:

“… the only evidence before the tribunal, apart from the evidence of the claimant, was that of the physiotherapist.  I have no doubt that the physiotherapist has received training to ask relevant questions and to make relevant observations.  Subject to any question as to their accuracy, the report on what the claimant stated and on the observations made is clearly relevant evidence.  Where the disability analyst possesses relevant medical expertise, any opinion expressed based on that expertise is also relevant evidence.

Where, however, the disability analyst is a physiotherapist and the problems she is dealing with are mental health problems the opinion of the physiotherapist as to the conclusions to be drawn have no probative value whatsoever.  This is because the physiotherapist has no professional expertise in mental health matters.  Although the strict rules of evidence do not apply, a tribunal can only take into account evidence that has probative value, so that, for example the decision of another judge as to the facts is simply his or her opinion as to the facts and has no probative value …”

[…]

“I can only express my surprise that in a case where the only issue was the mental health of the claimant and its effect in relation to the mental health descriptors, the report was prepared by a physiotherapist following a 15 minute interview.  It is plainly important that questions of mental health should be assessed by a disability analyst with appropriate mental health qualifications if their opinion is to be of any evidential value. Even then tribunals should beware of placing too much weight on such reports, based as they are on a very short interview with a claimant and without access to medical records.”

In this case, Judge Mark also makes a useful ruling about work related activity and action plans:

“If a person is found not to have limited capability for work-related activity, he will be required to undertake such activity.  At the date of the decision, the decision maker may not know exactly what that will involve, although the Secretary of State will then need to notify the claimant of a requirement to undertake work-related activity by including the requirement in a written action plan given to the person, which must specify the work-related activity which the person is required to undertake and any other appropriate information (see regulation 5 of the Employment and Support Allowance Regulations 2011, in force from 1 June 2011).  Work-related activity is defined in section 13(7) of the Welfare Reform Act 2007, in relation to a person, as activity which makes it more likely that the person will obtain or remain in work or be able to do so.

[…]

“… except to the extent that the written action plan takes into account matters which occur after the date of the decision, it is evidence of the sort of work-related activity which the claimant can have been expected to undertake at the date of the decision, and that to enable the tribunal properly to consider the application of regulation 35, a copy of that plan ought to be provided by the Secretary of State to the tribunal.  That was not done in the present case.”

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