ESA Medical

nogginthenog wrote: »

It has to be done by a approved person,..ie qualified.

I know. I've read the text on it before.

Then you were lucky Gary - a couple of people have been caught trying to do this and been regarded as not complying with the medical when they refused to continue without it - thereby in effect giving up their benefit. The only way they will accept them is with prior written consent if it's recorded on a professional quality sound system by a fully qualified sound engineer - the three of us that have said this are not making it up - this is the guidance given.

(that said by my next medical I'm hoping hubby will actually be qualified - so that could be interesting. They'll probably say he isn't independant - sigh)

The DWP have allowed a reconsideration before, where a claimaint told them they had recorded (covertly) the medical - and the claimaint won the reconsideration, although the dwp didnt even bother asking to listen to the recording (rather telling that........) Didnt go to appeal, stayed at the reconsideration appeal. No trouble from DWP or ATOS.

The past precedent in question is a two parter really, the first case (will dig up and post ref no's at the end of the post) was about someone who had told the examiner they wished to record, and the examiner had halted the medical. The dwp then stopped benefits as the claimaint would not accept a medical without recording, and the medical center would not allow any medical without recording on their terms....

The appeal found that the dwp rules were not adhered to, and the claimaint lost - however it specifically noted that this was because the claimaint had TOLD them at the time he wanted to record, and it specifically noted it would be a different matter if the claimaint had covertly recorded, and made specific mention of a past case to refer to for precedent, in a case where the claimaint had made covert recordings.

The ruling where the claimaint lost (because he told them about wanting to record) is

CIB/3117/2008 , and thats the one that refers to the other case, stating

Finally, I must acknowledge that there is no suggestion in this case that the appellant has acted other than in an open and straightforward manner. This is not, therefore, a case in which a claimant has surreptitiously tape-recorded an interview or medical examination. That type of case may well involve different considerations, e.g. as regards the admissibility of evidence in subsequent tribunal proceedings (on which see the decision of the Employment Appeal Tribunal in Chairman & Governors of Amwell View School v Dogherty (UKEAT/0243/06/DA).

In that case, covert recordings are acceptable in evidence.

Covert recordings can also be used in court cases (ie past tribunals) at the same discretion of the court.

http://www.lawgazette.co.uk/in-practice/hearsay-bad-character-and-identification-evidence

one example of this in the link above, and it also contains info about means of proving or not if a recording is genuine (although a tribunal is highly unlikely to go to these lengths as they operate on the balance of probabilities, but a claimaint should have no problem proving a recording genuine if it goes higher than a tribunal)

Legally, you are allowed to record the medical covertly, and its certainly in the public interest. Once you have the recording, its up to you what you do with it (within law), like I say, the dwp have at least once allowed a reconsideration where the claimaint told them of a recording, without problem - and its clear tribunal precedent is nothing to fear, and supports covert recordings, as does the law.

As for ATOS, cant see them doing anything, the examiner in question would not be happy with all the publicity, and neither would atos want it bringing to the press. Plus if they took legal action, it would open doors to getting some serious questions asked in parliament etc. What legal action could they take anyway? As far as I know (and I have researched this a lot) - none, as its not illegal, whereas what they would be trying to hide by taking action, would be... Their is a reason they dont state what action they would take in the guidance, and thats probably because they know fine well their is none. (other than possibly settling financially or otherwise to try to stop the claimaint taking it much further)

NASA wrote: »

Once out of how many million claims?

There would be more, but most people dont record the medical - and those that think about it are usually put of by the dwp's over the top rules, atos's deliberate 'scare' tactics and and un-informed posts on forums where people say you cant do it, and where people say if you do do it, you cant use it.

The ATOS wording is a try on in my opinion, in fact, if someone was to take a case to court, and atos tried to frighten them into not using a recording by using their try on, it would look to me to be a case of witness intimidation. The only way it would not be witness intimidation in my opinion would be if they could take legal action. But if they cant, and they are issuing empty threats, if that happened during a court case, it surely would be witness intimidation (which is a serious crime) in my opinion. Tribunals are courts to...