DLA Troubles - ATOS liars!

mrnasty

I understand what you are saying Cpt. Scarlet, but as you have correctly said it is not exactly defined within the regulations what a failure to attend covers, this is why we have case law and there are a number of cases whereby it is said that a claimant can not fail to attend an appointment for given purposes if such an appointment never existed in the first place i.e. ATOS deciding the cancel an appointment.

I am not going to divulge into my own personal circumstances but I can say that I am also speaking from previous experience, I have told the DWP in the past that I am going to record the assessment with or without permission and that also includes requesting a home visit.

Cpt.Scarlet

mrnasty wrote: »

I understand what you are saying Cpt. Scarlet, but as you have correctly said it is not exactly defined within the regulations what a failure to attend covers, this is why we have case law and there are a number of cases whereby it is said that a claimant can not fail to attend an appointment for given purposes if such an appointment never existed in the first place i.e. ATOS deciding the cancel an appointment.

I am not going to divulge into my own personal circumstances but I can say that I am also speaking from previous experience, I have told the DWP in the past that I am going to record the assessment with or without permission and that also includes requesting a home visit.

My problem with what you are saying is that it does not represent good advice for the OP or anybody else who does not understand the implications of what they are doing.

The DWP have, and undoubtedly will continue, to find claimants who persist in requiring the medical to be recorded without permission, as failing to attend without due cause.

There is no case law pertaining to this situation, if there was, we wouldn't be having this conversation, so the only options for a claimant are to appeal or re-claim.

However, in both cases, since this is a technical failure rather than the claimant scoring less than 15 points, the DWP are not required to pay the ESA assessment rate until such time as a miedical is successfully heard.

If you choose to go down this path, it is your decision, but no one should be advising others to do so.

cit_k

mrnasty wrote: »

I understand what you are saying Cpt. Scarlet, but as you have correctly said it is not exactly defined within the regulations what a failure to attend covers, this is why we have case law and there are a number of cases whereby it is said that a claimant can not fail to attend an appointment for given purposes if such an appointment never existed in the first place i.e. ATOS deciding the cancel an appointment.

I am not going to divulge into my own personal circumstances but I can say that I am also speaking from previous experience, I have told the DWP in the past that I am going to record the assessment with or without permission and that also includes requesting a home visit.

Can you post up links and quotes of that case law please?

Regardless of law, if the DWP do as is most likely, and classify it as a fail to attend, then by all means someone could push it right up to judicial review or higher, but during that time, the DWP wont pay them during the appeal surely?

So unless you have money to live off, most claimaints can even contemplate that option which is risky at best.

cit_k

mrnasty wrote: »

'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

The appointment will exist, they will say it exists surely, and just say its YOUR refusal to attend unless you can record it that is the problem leading to a fail to attend.

However, if you have case law supporting the issue, I would be interested in seeing it, as well as hearing details of your experience going this route.

eskimo26

By any chance is anybody else going to actually address the OP's latest problem?

DaveHedgehog wrote: »

I've received a letter today saying I will have to be assessed at a medical centre, can I still make a recording?

Cpt.Scarlet

eskimo26 wrote: »

By any chance is anybody else going to actually address the OP's latest problem?

I've not counted, but I think there are at least 6 answers to the OPs question, including one from me, it was originally asked in post 1

Savvy2Be

TO ANUBIS-

Just wanted to say, I know exactly how you feel because I am in much the same position...worked for 12 years and now am unable to and due to strong meds etc I am exhausted and in bed alot of the time. Its very difficult and hard to cope with that as you dont want to feel 'lazy', you know your not, same as I know Im not.

I echo your sentiments entirely..I am in the ESA WRAG group, even though my neurologist said it was unlikley I would work for at least the next few years...having to have my 2nd medical...only had one 3 months ago (provided all my notes/medical evidence etc), but now another comes along..even though I explained how all this stress effects my condition. It seems that the stupid ATOS adviser said a new medical to be done every 3 months....despite all the evidence..it just makes my pain even worse & I lost my job as they couldnt hold it open any longer...so all in all I feel so frustrated. I'd worked hard to gain a good position and now feel I have to jump through hoops with ATOS over receiving ESA when they have seen letters/reports etc from my consultant.

I feel the same as you do in the way of worrying that although I have a wealth of experience, with my health problem and long term sick time, im going to be going up against 50 well people possibly and am scared for the future and whether if the time comes, how im going to climb back up the ladder.

The whole system in particular ATOS are just useless, in handling medicals for mental health issues..even the man at the DWP said I should of been in the support group and couldnt understand why they had put me in the WRAG. They could see i'd worked all my life up to getting this illness, and am ambitious and want to work...but I clearly cant for the forseable future..the ATOS doctors & whole procedure needs alot of work, all the mistakes, misinformation in reports, cases like mine where I had lots of evidence from my consultant, yet they still are putting me through 3 monthly medicals- causing me more stress....oh dear...

bigpoops

As always my opinion is - unless you're offering the jobs, your thoughts do not matter.[/QUOTE by wantsajob]


I'm not offering jobs, but I am paying tax, so my opinion DOES matter. I get nothing back for my money except the right to an opinion about where my money goes, so as always my opinion is - unless you're paying tax, your thoughts do not matter.....

cit_k

bigpoops wrote: »

As always my opinion is - unless you're offering the jobs, your thoughts do not matter.

I'm not offering jobs, but I am paying tax, so my opinion DOES matter. I get nothing back for my money except the right to an opinion about where my money goes, so as always my opinion is - unless you're paying tax, your thoughts do not matter.....[/QUOTE]

Actually, you do get something back, in addition (obviously to all the other services that tax pays for) you get the somewhat dubious safety net of the benefits system should things take a turn for the worst.

And as for whether the opinion matters, being a taxpayer or not, makes zero difference to wether anyone who matters takes any notice of what you say.

Heck, peoples lives dont matter to the people in charge when it comes to the benefits system, so the thoughts of a member of the public, tax payer or not, are pretty low down on their agenda.

morledge142

wantsajob wrote: »

Does DLA actually fund such help though? For example, someone has difficulty cooking and can only cook microwave meals. They get the low rate DLA of about £20 a week. I couldn't hire a chef for £20 a week. In reality it's just an extra £20 so they can buy Tesco Finest, instead of Tesco value microwave nosh. Or more likely completely subsumed by all other financial requirements of someone on low income. If DLA provided the actual help required, instead of a bit of money - then perhaps it would be viewed in the manner you suggest it should be. The reality is the help required would cost far far more money than what is paid out in DLA.

it helps me,
i hafve difficulty using my hands so ijstead of buying rubbish readymeals i use the money towards buying chopped veg/meat etc so tht i can book everything in the slow cooker. this is safer for me and easier than using pans and means we can still have homemade meals sometimes such as spag bol, casseroles, soup etc.