Daily Living Descriptor 3 – Tribunals cannot ‘go behind              the back’ of your own doctor about medications

The Upper Tribunal has recently made a decision (CPIP/3622/2016) about how much Tribunals are entitled to disagree with your own doctors about the medication you take.

Note that the UT made other important points in the same case, but BuDS is reporting these other points separately to make things simpler.


BACKGROUND
Tribunals have very wide power to look into your case and circumstances and draw conclusions from the evidence. Tribunals often look at the medication you take and make judgements about how serious your condition might be – the most common example of this is assuming that a high dose of prescribed painkillers suggests a high level of pain.
In this case, the Tribunal thought that if a person changed their medication from that prescribed by the claimant’s own doctor, they would be able to live more independently. The Tribunal therefore gave the person less points because, effectively, they weren’t helping themselves to live independently and so the support they needed wasn’t ‘reasonably required’ for the purposes of PIP.

The Upper Tribunal has reversed this decision and has warned Tribunals not to ‘go behind the back’ of the claimant’s own doctor’s judgement about what medication is best for their patient.
Note that this judgement doesn’t apply to people who refuse to take medication which is prescribed for them. In those cases, assessors, DWP and Tribunals have to look carefully at the circumstances and decide whether it’s reasonable for the person to refuse. Someone without a mental health condition who unreasonably refuses to take anti-epileptic drugs and as a consequence has many fits might be refused points. But someone with a mental health condition who doesn’t take antipsychotic medication because of their condition can’t have that held against them.


WHAT THE UPPER TRIBUNAL DECIDED
The Upper Tribunal decided that Tribunals were generally speaking NOT entitled to assume that people would be more independent or mobile in their daily life if they changed their medication, when a consultant had prescribed that medication and it was being taken. The UT also said that Tribunals will ‘inevitably’ not have enough knowledge of a claimant’s condition to ‘go behind the back’ of their own doctor’s judgement about medications. Although this decision was about the power of Tribunals, it can also be used to argue that DWP and assessors also do not have the power to ‘go behind the back’ of the claimant’s own doctor’s judgement about what medication is best for their patient.

WHAT THIS MEANS FOR YOU
If an assessor, the DWP or a Tribunal ever queries the medication that you have prescribed for you, and takes points away because they think you should take alternative medicines or treatment, then you can quote this decision to stop them.


TIMING
It’s always difficult to say when Upper Tribunal decisions start being used in practice. The Upper Tribunal made this decision on 7 April 2017 so it’s safest to say that the meaning shown above can be used immediately in your claims, mandatory reconsiderations and appeals, but it may take some months before DWP and assessors catch up.

This analysis is brought to you free of charge by BuDS Benefit Information Team. It is only general information and you should take advice on your own case.

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You can read the full judgement here: https://www.gov.uk/administrative-appeals-tribunaldecisions/pm-v-secretary-of-state-for-work-and-pensions-pip-2017-ukut-154-aac