DLA Troubles - ATOS liars!

mrnasty

'You're still talking rubbish'

Thanks for that. Although, I disagree with what you say here, I am attempting to state the position from a legislative point where I understand that you are advising your point of view from an actual / real point of view. In my opinion, I agree with what you say in that the action that ATOS or the DWP will take in those circumstances are probably the actions which you have said, I do not disagree with that. But it does not mean that those actions are correct or even legal.

'Your example is not relevant, because ATOS would not allow the medical to continue if notified in advance that it was going to be recorded.'

Contrary to what you may have thought, I was not refering to recording the assessment overtly, I was talking about recording the assessment covertly. If ATOS failed to allow a medical because they were notified in advance then it is ATOS that are making the decision and not the customer. For all intents and purposes you can not fail to attend a medical within the meaning of the Employment Support Regulations, if an appointment is cancelled by ATOS or the DWP then the appointment didn't exist for you to fail to attend it.

'The test for attending a medical is not starting it, but finishing it.'

That is what perhaps the DWP will say. However, could you take me to this test as established in law? (as I say, I am not particularly interested in the DWP's / ATOS own particuarly policy as I am looking at this from a legislative point of view)

What would happen in a situation whereby you couldn't answer the questions because you have severe onset of any particular symptom i.e. a panic attack, anxiety, physical pain whilst undertaking the assessment - is the HCP going to stop the medical and tell you you have 'failed' to attend the medical even though you have attended and tried your upmost to answer the questions- or is the doctor going to write 'the customer did not respond'?.

Failing to participate in the medical can be classed as a failure to attend because of technical reasons.

You are not failing to participate in the medical or failing to attend in those circumstances though.

The Equality act is not applicable, note taking is not a reason, and needing to record a medical because of your condition would have to be argued at appeal.

Not correct. The Equality Act public sector duties are applicable to ATOS and the DWP. The DWP are a public sector body. ATOS are contracted to perform a public sector duty and are covered.

If for a protected characteristic you require forms of adjustment(s) and the body under the duty fails in it's duty then this will certainly give rise to action. This action would have to be taken through the County Court.

From a social security tribunal point of view you are indeed correct, the Social Security Tribunal will not have jurisdiction to hear this claim in a seperete form. However, the Social Security Tribunal is also bound by the same duty and in making it's decision must also take account of the duty.

This would also be covered under article 12 of the European Convention on Human Rights. If you are unable to access the benefit you need and are entittled, but are not permitted to adjustments which were needed to be able to show how you were entittled (i.e. a home visit) then you have been denied access to the other conventional rights (under the HRA) by reasons of a breach of Article 12.


The rules that govern how the DWP and operate with regard to recordings is clearly laid out, I don't know anybody who thinks it's reasonable, but that won't change a thing.

I agree that may be the case as you say. However, once again, I am looking at this from a different perspective. Just because the DWP's rules and policy dictate how they run and they follow there own rules and policy, does not make any such action or inaction legal.

So to repeat the correct advice.

If you attempt to overtly record a medical without explicit agreement, in advance, your medical will be terminated and you will be classed as having failed to attend, which in these circumstances will quite likely lead to a closure of the claim.

Once again, I do not disagree with what you are saying. It perhaps is exactly what the DWP would do.

But once again, I am not talking about what the DWP will do, I am talking about what they are permitted to do in law or not and of course, this would probably lead to some streneous actions to the Court as a pose to just a Social Security Tribunal.

But if that is indeed what it takes then me personally would take that route to protect what I would believe to be my rights.

Regards

Anubis_2

I think what Mr Nasty is sayimg is that Atos rules and policy, does not over ride actual law, and if they were to state that someone failed to attend the interview, on the basis of covert recording, then they may be acting within Atos policy, but they are not acting within actual law.

FWIW I was always under the impression that the uk law states you have to inform a.n.other person beforehand if you are going to record them fir any purpose, to allow that person the right to refuse to be recorded.

mrnasty

Anubis wrote: »

FWIW I was always under the impression that the uk law states you have to inform a.n.other person beforehand if you are going to record them fir any purpose, to allow that person the right to refuse to be recorded.

That is correct from a Data Protection Act point of view and under Article 8 of the European Convention but only if the person taping is acting for or on behalf of a organisation, company or public body.

Recording by individual persons by private means is not covered by the Data Protection Act or the ECHR.

For example, a council uses CCTV images which are covered under the Data Protection Act "DPA". You have a right to request a copy of any image which they take of you going about your daily bussiness, they also have to justify what they use the cctv for and have to register this with the Information Commissioner as well as providing a public notification that they are using cctv.

However, if your a private individual, using a cctv camera to protect your home then you are out of the scope of the Data Protection Act 1998 so you may do so without notice or without justification as the Data Protection Act does not cover private individuals.

However, if your camera is pointing directly into someones property and this is causing them annoyance and is invading there privacy, it would be up to the court to decide whether they should restore your privacy or not or in certain circumstances the criminal courts and police to decide whether the action constitutes harrassment alarm or distress - but obvisouly, it depends where the camera is etc as this does not cover private places etc....

That is my understanding anyway

Anubis_2

Thanks for the explanation.

However, I am more confused now - isn't an Atos Dr acting on behalf of a compnay? Therefore would the rule still apply?

Muttleythefrog

Anubis wrote: »

Thanks for the explanation.

However, I am more confused now - isn't an Atos Dr acting on behalf of a compnay? Therefore would the rule still apply?

The law will relate to the person doing the recording... so if it is you then no.. if it is them then yes.

mrnasty

Anubis wrote: »

Thanks for the explanation.

However, I am more confused now - isn't an Atos Dr acting on behalf of a compnay? Therefore would the rule still apply?

Sorry, didn't intend to confuse you further ha...

A private individual can record what they like whenever they like without any permission. So yes you can record any person it doesn't matter who they are or what they do or who they work for.

HOWEVER

If a person working for a company, organisation or public body wishes to record you they must tell you that they are doing so (give you notice) and you have the right to request a copy of the information/data/manual files under the Data Protection Act 1998.

So in short, you can record Dr and he isn't entittled to your copy.

Dr can only record you with your permsision and you are entittled to copy under DPA.


Hope that makes better sense, sorry for the earlier confusion

Anubis_2

Thanks, sorry it isn't your fault, I am in a major flare and not focusing well. My brain is so full of fog at the moment that I can't find the lighthouse to turn it on

Thanks both of you for clarification

Cpt.Scarlet

MrNasty

I am sure you are trying to help the OP, however you are stating what you BELIEVE to be the case, whereas I am stating what I KNOW to be the case.

So, if a medical is cancelled because you have stated you are going to record it, you will be viewed as placing unreasonable requirements on the DWP and this will be classed, technically, as a failure to attend.

Being unable to answer the questions during the medical, is very different, from refusing to answer the questions, which was what was being discussed.

I'm not saying the DWP and ATOS are not bound by the Equality Act, I'm saying that recording a medical is not, as there is no automatic right to do so.

These matters are not defined in law, except in the broadest manner, it is the operation rules of the DWP that determine how they are managed.

Cpt.Scarlet

Anubis wrote: »

I think what Mr Nasty is sayimg is that Atos rules and policy, does not over ride actual law, and if they were to state that someone failed to attend the interview, on the basis of covert recording, then they may be acting within Atos policy, but they are not acting within actual law.

FWIW I was always under the impression that the uk law states you have to inform a.n.other person beforehand if you are going to record them fir any purpose, to allow that person the right to refuse to be recorded.

If it were defined in law then this would be correct, however, it is not. The ESA Regulations (the law), stipulate that a failure to attend a medical will result in the claimant being found fit for work, but they do not, by intent, describe what a failure to attend is, this is defined by the operational rules, and it these that cover a failure due to a technical infringement.

Anubis_2

Cpt.Scarlet wrote: »

If it were defined in law then this would be correct, however, it is not. The ESA Regulations (the law), stipulate that a failure to attend a medical will result in the claimant being found fit for work, but they do not, by intent, describe what a failure to attend is, this is defined by the operational rules, and it these that cover a failure due to a technical infringement.

Yes, I totally understand. It is not advisable to let them know as you risk loosing the potential award due to technical infringement.