ESA Medical

Uncertain

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.

No they wouldn't! The would need evidence to prove this!

cit_k

nogginthenog wrote: »

Nobody is saying you cant do it!.........But will/can it be used as evidence is a differemt matter.

Its been proven on this thread that there is a past precedent of this type of recording (secretly done) been allowable as evidence. As always, its up to the court/tribunal, but I have posted the proof it can be allowed, and has been in the past.

nogginthenog

cit_k wrote: »

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

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)

The first case is really about a DNA " did not attend" and a appeal against that....he also claimed he did not know about the rules pertaining to audio recording.


[FONT=Arial, sans-serif]The case is remitted back to the Secretary of State with the following directions:[/FONT]

1. [FONT=Arial, sans-serif]The Secretary of State shall ask Medical Services to arrange for the appellant to be provided with details, in writing, of the conditions under which an interview or examination may be tape-recorded;[/FONT]

This has now been addressed by the dwp. and claiments are now made clear what they can or cannot do at the medical.

The 2nd case, is the one i discussed with my colleagues a bit ago, pertaining to whether audio evidence obtained clandestinely is relevent to a patrticular case....in this case you mentioned it was judged to be relevent.

AS i said in a previous post.......the point was made in the first case above... that the rules pertaining to audio recordings for ESA claiments are tougher than the rules that DWP fraud investigators have to abide by

cit_k

They are tougher even than the PACE rules they police use for interviewing suspects.

NASA_2

Uncertain wrote: »

No they wouldn't! The would need evidence to prove this!

So they couldnt put forward an arguement that it could have been tampered with?

What nonsense.

cit_k

NASA wrote: »

So they couldnt put forward an arguement that it could have been tampered with?

What nonsense.

Of course they could put the argument forward.

But tribunals are not stupid. They operate on balance of probabilities.
ATOS are known to operate in a dodgy manner with a large amount of people..
ATOS are known to have serious problems with reports for a large amount of people.
Claimaint has medical history, claimaint has medical evidence, ATOS disagrees with it all.
Claimaint is skint, and does not have a hollywood studio.

Balance of probabilities.

If it came down to it, and went higher, then a independant examiner could be called in to verify if the recording was genuine or not. Easy enough for a pro to do.

NASA_2

cit_k wrote: »

Of course they could put the argument forward.

Thank you. I stopped reading your post at this point.

wild666

I found this interesting as my daughter has just filled in the ESA 50 form for me and agreed with me after reading out a few answers to me that it is fixed towards the DWP refusing the claimant ESA or at best been sent for a medical. Just before it became ESA I had a medical and my daughter who filled in the present forms found the medical form and as she read it to me I noticed alterations to what I had said at the medical, I just wish I had read it before the tribunal, but an assessors word against a claimants? The claimant has no chance

happyinflorida

For help with ESA have a look at this website

"benefitsandwork.co.uk"

I found it very reassuring for my ESA claim and the advice is invaluable.

nolegion

According to the Appeal case referred to quite a way back in this thread, the ‘recording rules’ of the DWP were ‘once’:

Claimants may request that their interview and assessment by a Medical Services doctor in respect of a benefit claim be recorded either on audio or videotape. Such a request can only be agreed with the prior consent of the HCP [health care professional, in this case an examining doctor], and then only if stringent safeguards are in place to ensure that the recording is complete, accurate, and that the facility is available for simultaneous copies to be made available to all parties present. The recording must be made by a professional operator, on equipment of a high standard, properly calibrated by a qualified engineer immediately prior to the recording being made. The equipment must have facility for reproduction so that all parties can retain a copy of the tape.

The responsibility for meeting the cost of the above requirement rests with the
claimant.

Any request by a claimant for an assessment to be audio or videotaped must be declined unless the above safeguards are in place.

Please, somebody, anybody, can you tell me whether these rules have in fact now changed, following that case, and if so how?

Just a ‘link’ would do. Thanks.