ESA Medical

moped_mark

Hi All

My father has been on ESA for a few months now and has just had the decision on a "Limited Capability for work assessment" to which he was awarded 12 points, 3 short of the needed 15 to be allowed the benefit.

I should point out that this is the 3rd time he has had a medical and they have ruled him fit to work. He has appealed to all three, won quite a few and lost 2. Illness wise he has Degenerative disc disease (lower back and neck-diagnosis from specialist consultant), incontinence, sleep problems, walking difficulty and depression.

As my father has a chequered history with these medical I decided to go his latest one and record the interview he had. Probably illegal but, was needed to cover our back in the eventuality that he didn’t get enough points! In the recording I made, you can clearly hear my dad saying that he has all the problems above, but in his decision letter it hasn’t awarded him for:

Incontinence

Bending or kneeling (which he couldn't do)

Memory and concentration (which was stated in the medical)

Coping with change (discussed with depression)

Doing/finishing jobs & Starting jobs and keeping on with them

With all these factors and the fact that my father is too stubborn to admit his disabilities (which is another reason why I went!!), Does anyone think we have a case to appeal, and telling the ESA assessors that we have a recording of the medical would help our case?

Any experiences or knowledge relevant to this I'd be grateful for.

P.S. If anyone tells you that the medical assessors are highly professional Dr's- don't trust them. I work for the NHS and I wouldn't employ them!

nogginthenog

moped_mark wrote: »

Hi All

My father has been on ESA for a few months now and has just had the decision on a "Limited Capability for work assessment" to which he was awarded 12 points, 3 short of the needed 15 to be allowed the benefit.

I should point out that this is the 3rd time he has had a medical and they have ruled him fit to work. He has appealed to all three, won quite a few and lost 2. Illness wise he has Degenerative disc disease (lower back and neck-diagnosis from specialist consultant), incontinence, sleep problems, walking difficulty and depression.

As my father has a chequered history with these medical I decided to go his latest one and record the interview he had. Probably illegal but, was needed to cover our back in the eventuality that he didn’t get enough points! In the recording I made, you can clearly hear my dad saying that he has all the problems above, but in his decision letter it hasn’t awarded him for:

Incontinence

Bending or kneeling (which he couldn't do)

Memory and concentration (which was stated in the medical)

Coping with change (discussed with depression)

Doing/finishing jobs & Starting jobs and keeping on with them

With all these factors and the fact that my father is too stubborn to admit his disabilities (which is another reason why I went!!), Does anyone think we have a case to appeal, and telling the ESA assessors that we have a recording of the medical would help our case?

Any experiences or knowledge relevant to this I'd be grateful for.

P.S. If anyone tells you that the medical assessors are highly professional Dr's- don't trust them. I work for the NHS and I wouldn't employ them!

Do not tell them about the recording!..They will not be pleased,and it will not be counted as evidence...At a appeal. Hearing

cit_k

nogginthenog wrote: »

Do not tell them about the recording!..They will not be pleased,and it will not be counted as evidence...At a appeal. Hearing

Depends who deals with the case at the end of the day.

There is no law stating that is categorically will not be usable in a appeal.

In fact, previous precedence indicates it could well be accepted, as it was a covert recording. If it had been done overtly, and your benefits had been stopped because you told them you were going to record, then that would be a different matter entirely - you would lose....

It is up to the tribunal on the day what evidence is accepted.

You should appeal, you should also see a welfare rights advisor (free) as success rates are higher if you go to the appeal with one. You may not even need the recording, but its handy to have just in case. You may be able to win simply from how bad the medical report is likely to be, and giving evidence on the day.

If you have not already received a full copy of the medical report, ring up the esa people and ask them to send you one, they will do so for free.

You should also complain to ATOS ( go via your mp for best results, but dont expect any, although if you can tell him you have a recording, see what he says...)

Its far to common, they have done it to me multiple times (ib medicals)...

nogginthenog

cit_k wrote: »

Depends who deals with the case at the end of the day.

There is no law stating that is categorically will not be usable in a appeal.

In fact, previous precedence indicates it could well be accepted, as it was a covert recording. If it had been done overtly, and your benefits had been stopped because you told them you were going to record, then that would be a different matter entirely - you would lose....

It is up to the tribunal on the day what evidence is accepted.

You should appeal, you should also see a welfare rights advisor (free) as success rates are higher if you go to the appeal with one. You may not even need the recording, but its handy to have just in case. You may be able to win simply from how bad the medical report is likely to be, and giving evidence on the day.

If you have not already received a full copy of the medical report, ring up the esa people and ask them to send you one, they will do so for free.

You should also complain to ATOS ( go via your mp for best results, but dont expect any, although if you can tell him you have a recording, see what he says...)

Its far to common, they have done it to me multiple times (ib medicals)...

Audio and video taping of examinations

Should a claimant attend the assessment requesting permission to either audio or videotape the medical assessment you should politely refuse on the following grounds:
The Department for Work and Pensions never requires that a medical assessment for the purpose of advising on entitlement to state sickness or disability benefits be recorded on audio or videotape.

dmg24

cit_k wrote: »

In fact, previous precedence indicates it could well be accepted, as it was a covert recording.

I assume that you mean precedent? If so, could you point us in the direction of the relevant case law please?

nogginthenog

Unauthorised taping

It is for Atos Healthcare, in conjunction with their legal advisers, to determine the
action to be taken in the event of a claimant making an audio or video recording
without the prior knowledge and consent of the examining practitioner, or without

ensuring that the safeguards defined above are in place

Garry_Anderson

If the taping was made because of possible attempt to defraud claimant of their legal entitlement - and the taping shows there was an attempt - I cannot see ATOS taking any action - can you Nog?

spikeysoul

Don't tell them you recorded it, you really arn't supposed to, you need professional sound equiptment and a qualified sound engineer and Atos permission to do this. As far as I am aware you maybe able to use a transcript though. I'm not totally sure on the last part - but if you admit you made the recording at best it will be ignored. Use it to 'aid' your own memory of the medical though - that can't hurt. Welfare Rights Officers are worth their weight in gold.

Edit: Gary, Yes to discredit the claiment in any legal way they can - and to discourage others from doing the same, not to do so would set a dangerous precident for them

NASA_2

Garry_Anderson wrote: »

If the taping was made because of possible attempt to defraud claimant of their legal entitlement - and the taping shows there was an attempt - I cannot see ATOS taking any action - can you Nog?

They would be within their right to say that the claimant or their coconspirators could have edited the tape to make them look bad. One of the reasons it isnt allowed (Without agreement) in the first place.

nogginthenog

Garry_Anderson wrote: »

If the taping was made because of possible attempt to defraud claimant of their legal entitlement - and the taping shows there was an attempt - I cannot see ATOS taking any action - can you Nog?

Strictly off the record,...We had a discussion in our Union legal department about the Dwp being allowed to tape you ..pertaining to fraud
...and the double standards saying you cannot tape them!

Again off the record....WE where told if a recording was done without the knowledge of the dwp doctors...It must never been used exept in the most serious cases of malpractice. involving the courts or the GMC..
..........i HAVE USED VOICE RECORDS MYSELF...in a legal case against HMTR..at preston combined court......I had to write to the judge asking permission for the recordings to be used as evidence,My mp also wrote a letter in support.
I doubt very much if a ESA appeal will allow voice records, a gmc council may...IF YOU ASK THEM FIRST.

nogginthenog

NASA wrote: »

They would be within their right to say that the claimant or their coconspirators could have edited the tape to make them look bad. One of the reasons it isnt allowed (Without agreement) in the first place.

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