Steve - Help DLA Tribunal & Dr saying fit for work

Lorraine wrote:

Steve,

Please please can you help. I have contacted you in the past about my brother. He is 42 and has bad mobility problems due to non cancer tumour on spine, bad knee (needs new one but NHS say he is too young), Arthritis. He is on Morphine and other painmeds, can not walk without stick and stays in the house mostly and on days is bed bound and can not move.

He got his renewal for DLA which he has been getting for 7 years on High Mobility and Middle Carers. When he sent forms in which state he is now much worse and will continue to get worse, plus he is on higher pain meds he was refused outright, as his stupid doctor said he was fit to work.

We have got a Welfare Rights person involved but I am not sure they are giving him the uptodate and correct information.

First told he see different doc in pratice for assesement to send to Tribuanl. He went today and this doctor told him he could sit at a PC or Till so he could work (how with his tumour and all over pain). My brother never has a good day so would be having time off all over the place. The doctor said he was going to sent him back to the painclinic. Also when he left the room the first doctor he saw months ago and had a row with was listening outside the room.

My brother has a good OT report and they are trying to rehouse to a bunglow because of all his problems.

He phoned with Welfare person and he said he had heard the government where telling gps to get people back to work and say they can sit at PC or Tills.

He then said he could not understand all this after 7 years of geting DLA (none of us can).

Then asked why he was going to the Tribunal. My brother explained that I had told him that he had a better chance of getting it if he went in person and the Welfare rights guy said that was not true he should just do a paper one (I think this is totally wrong after all your advice on here).

Also my brother told him that I got my DLA (I have ME and Fibro) indefinte after a shorter time of DLA and this time they made there decision by my DLA renewal form and the OT letter. The welfare right guys said no thats not possible. But it is correct. I am wondering if this guy knows his stuff or not.

He nows says he needs time to see if he will represent him or not.

Help what does he do. This is the only guy I could get as they seems to be no one in the Gloucester area who does this type of work.

Your advice would be invaluable. My poor brohter is being told one thing from me with your great help and another from this guy. I have said if this guy says he does not think he will get anywere I think my brother has nothing to lose by going to the tribuanl, possibly with the OT along side him if she can or indeed is allowed to do this.

Hi Lorraine,

After 30 years of working as a WRO (10 years as Principal Officer), and 10 years as a DLA Tribunal Member, although now retired, it appears from what you write that your welfare rights worker is not giving you the best advice based on my experience.

As Pete has stated, it's always best if you're able to go to attend an 'oral hearing'. Paper hearings have a much lower success rates that oral ones.
Most DLA appeals succeed not because of any new evidence presented to the tribunal, but because what the appellant tells the tribunal about their mobility and/or care needs.

Also it certainly is possible for a decision on DLA to be made on the basis of a renewal form and an OT letter. In fact I've represented many cases in the past where a decision was reached on the claim pack only. If it's completed comprehensively and gives sufficient information on likely care and/or mobility needs, then that's often enough information for the Decision Maker.

Again, as velvet has stated DLA is not about whether you can work or not, many on DLA are able to do some work depending upon the nature of their illness/disability, again your advice worker should know that and explained it to you. You also state, he needs time to see if he will represent you. Why,is this because he has many other clients with appeals ? I always made the decision whether or not I could represent a client at tribunal after my first interview with them, and the only reason that I sometimes wasn't able to represent clients, was because I was fully booked on certain dates and therefore wasn't available.

It's a well known fact, and often expressed by the Tribunals Service, that a poor representative can do more harm than good at an oral hearing.

I'm surprised that you're finding it difficult to find help in Gloucester, because there are a number of agencies that provide tribunal help including Gloucester City Council and Gloucester Law Centre both of which have qualified staff and good reputations.

I think I'd be inclined to contact your adviser and discuss the advice that you've been given here. A good adviser should always respect their client's wishes unless that would go against them, and I honestly in my opinion don't think that a representative that advises their client to go for a 'paper hearing' as opposed to an 'oral hearing' is acting in their best interests.

Good luck.

Jim

Hi Jim,

Thank you so much for the long reply I really apprecaite it.

I spoke to his Adviser today and he agreed with all the points that I made i.e. two gps sticking together and that I pointed out how can the gp who backed him 7 years ago with these same condtions and prescribing him morphine now say 7 years on that he is able to work, when he is getting worse and on higher morphine and other meds, its total madness.

I did ask the rep to go with him to the tribunal and I had to really persuede him to say yes. I said it would look better in my opnion if he want to help talk to the panel with an opening speech(as this is what happened with a welfare rights person that came with me to a tribnal some years ago). He said we he would not get any time to speak (thats wrong) and that the panel would not listen to what he had to say, but would attend if thats what my brother wanted.

My brother says enough is enough and he can not go on with this and hes health is getting worse with all the stress, I had told him if he does not fight for himself no one will, but he says he cant. So he says he will go to the tribuanl and speak for himself. This in itself will not be good as he just get very foggy headed and frustrated with all the pain and medication and will end up angry and this will go totally against him.

I am at a total lose.....

hi lorraine, I am not a qualified adviser but if i were you i would make an appointment with the practice manager at your brothers doctors (if possiblewith your brother or at least with his written consent) and ask to go through the medical records,And then ask about his prescribed medication etc, you may also be able to get something in writing from them to support your brothers claim. Best Wishes,

Hi Lorraine,

It's obvious that the adviser you're using hasn't had much tribunal representation experience. The representative is allowed to make both an opening and closing submission to the tribunal.

However, the tribunal panel will always direct it's questions to the appellant, not to the representative, nor is the rep allowed to prompt the appellant.

Is it not possible for you to attend your brother's appeal as a witness, if so then the tribunal will allow you to help out your brother if he get's angry.

Best wishes.

Jim

Hi Jim,

My brother bless him has all but given in. I am trying to get him to change doctors but he has had enough.

One thought I had was obtaining his medical records. This would then have the medical evidence from the specialist he has seen in the past and also show that 7 years ago when he first got his DLA his GP wrote a report which must of been favourable and would state what medication he was taking compared with what medication he now takes (more). Plus that the G.P. will not support him him now he has deteriated and taking more meds. We could then send this off to the tribuanl as more medical evidence and surely this would point out how wrong the doctors at his pratice are.

Thoughts please.....

Hi Lorraine,

Not online much recently due to fatigue and vertigo caused by my MS presumably, so haven't been able to get out of bed until late afternoon for several days.

Presumably, you mean your brothers hospital records ? If so you will need to contact the Patient Records Manager (or similar title) for a form to access the notes under the Data Protection Act 1998.

Most hospitals charge a £10 administration fee, then around 5p per copy of each letter. Can take up to 40 days if my memory serves me well which it often doesn't.

Full details in this DoH document Guidance for Access to Health Records Requests February 2010

Hope this helps.

Jim

PS. Just noticed there's a form on pages 22 & 23 to apply for access to hospital records.