ATOS and Benefits Agencies legal decisions.

Invalidation

Speaking to a Barrister friend yesterday and I posed the question to him.
I am and have been disabled for over 20 years, should ATOS and the Benefits Agency decide to send me or any other disabled person back to work and they hurt themselves badly, what could happen.

His suggestion was that you could sue them both for damages and for a large sum as well.

Has anyone hurt themselves as a result of being disabled and sent back to work?

rogerblack

It's really not that simple, and I question if any barrister would actually give this advice.

If ATOS properly administer the test, even though it is unfair, and it causes an unfortunate outcome, that is not a failing on their part.

If the DWP properly administer the law, even though it is unfair, and it causes an unfortunate outcome, that is not a failing on their part.

In order to challenge laws, properly administered, you either need to find incompatibilities with superior legislation (for example - the human rights act), or that the law was improperly brought into force.

Failings at ATOS or the DWP to follow the law are of course another matter, but you have quite a high bar to cross.

Any action for damages would generally involve failings which rise to the level of gross incompetence.
Anything much below this isn't generally adequate - even assuming you have perfect evidence of the situation, which is unlikely.

Your sig actually sums this up. 'legally'.

Invalidation

Hi Roger
I put exactly your points to him. But his response was, if ATOS and BA go against a qualified Doctors or Consultants decision that you are unfit for work and you obeyed the BA and got a job then as a result of your disability you hurt yourself more or worse injured someone else then they would be jointly liable.

ATOS and the BA are NOT qualified to make medical decision was his final comment.

speedfreek1000

Do you mean actual work or what is now termed "training" under "Workfare" which Income ESA WRAG claimants will be submitted?

This is of interest - the Unisons' Health and Safety guide to disability

http://www.unison.org.uk/file/B5763%20Disability%20and%20Health%20and%20Safety%20Guide.pdf

I'm going to reference this to the DWP/Providers but it applies to normal jobs as well.

Basically the DWP (from FOI requests) has stated that all claimants are to be treated as employees by itself and its contracted providers.

Therefore you would 1st have to show that you requested an adjustment (backed up with appropriate medical documentation supporting it) under the H&S legislation above

This is where it gets a bit wishy washy as just because an adjustment has been requested there is no legislation forcing either party to comply with any request.

* SIDE POINT 1 * ATOS home assessments - why you need medical evidence etc to request one and they can ignore it - that's the reason.

If you make a request and it is ignored you would then have to follow fully their in-house complaints procedure to completion.

See Chapter 16 here http://www.dwp.gov.uk/supplying-dwp/what-we-buy/welfare-to-work-services/provider-guidance/work-programme-provider.shtml

* SIDE POINT 2 * If you are still unhappy after fully exhausting their in-house complaints procedure (and not before), then and only then could you approach a legal service to see if you have a valid case to bring a disability discrimination case.

So if you were injured as a direct result of "Work" you would have to show;

1, they were formally notified of a problem (with appropriate medical documentation supporting it) and that reasonable adjustments were requested.
2, if those adjustments were refused that you have fully followed the complaints procedure.
3, it was a direct result of all the above using the legislation provided that your employer was negligent in care which caused the injury.

Well that's my take on it thoughts anybody?

Invalidation

Speedfreek
That the DWP considers disabled as Empoyees is irrlevenat and wrong. I am NOT an Employee of theirs whatever they may claim
Re your final 3 points, I would have considered them irrelevent.
I would assume anyone with sufficient medical Bona Fides for thei disability having an ATOS medical and then the DWP would have provided sufficient evidence showing their disability and recommendation from their Doctor/Consultant that they were unfit for work. Any relationship with a complaints procedure and Employers liabilities are overriden by the simple fact that the DWP have told you to get a job that directly overrides a doctors decision

rogerblack

Invalidation wrote: »

ATOS and the BA are NOT qualified to make medical decision was his final comment.

I would guess he doesn't know much about benefit law.
The issue is specifically _not_ a medical decision.
It is a legal decision - does the claimant meet the legal tests for being entitled to benefit.

There are clear grounds to action where this decision is made not according to the law, and is made grossly negligently.

If the decision is made according to law - even if there are bad consequences to it - you have absolutely no claim against ATOS, or the DWP.

Your only option would be to challenge the law, which is generally extremely problematic.

speedfreek1000

I think you're both missing the point here.

Benefit laws applies to benefit decisions only.

Once any part of that decision is used for anything other than that benefit decision it then becomes subject to what ever legislation covers the area it is now being applied too.

You are now no longer questioning it's use for a benefits decision you are questioning its validity/legality when applied to something else.

So if I am forced into work and become injured, I would not be challenging the legality of the actual benefits decision but the use of that decision in a wider context and under different laws/regulations i.e the ones it's now being applied under.

So H&S/Employment - Human Rights - Disability Discrimination

The DWP/ATOS/Sec of State ESA assessment decision under these is now an opinion and has no legal binding as it is now outside of its remit (Benefits). If this opinion is used to justify something else there is now the possibility that the DWP/SoS is culpable of negligence for promoting that view.

See I'm researching something similar you could say it's the question that comes before what happens if I become injured?

That is when ESA claimants in WRAG are forced into WorkFair how do they get reasonable work place adjustments made by providers and what processes need to be followed/legislation if those adjustment do not happen.

Well to put simply it's my previous post.

Although the SOS has decided something for benefit purposes. Once that decision is enacted I'm now covered by The 1970s H&S regulations (and everything that's followed) and my fight then is within that frame work.

jetplane

What type of Barrister is your friend? Is he an expert in Social Security law? There are many areas of law and a barrister can not be expert in them all and often rely on others to do the actual research.

The decision maker is acting on behalf of the secretary of state when s/he makes a decision it is not a case of ATOS or the DWP just signing someone off the sick. If that person becomes employed and comes under the DDA then would it not be employment law?

Believe me there are campaigners and barristers representing on social security law, european law and human rights in the appeal courts and if it was this simple then every benefit claimant signed off the sick would be falling over and putting claims in.

Invalidation

I dont know what his speciality is, but his reasoning and he suggested it would be a similar reasoning to any Judge presented with the facts, was that If non medical people overrode a medical decision, and an accident occurred, they would be liable.
Maybe he's basing that on something else but it sounds reasonable to me.

How can a non medical person decide that you are fit to return to work when they are not in possession of 100% of the facts?. It is up to a doctor to make that decision not an assessor..

I see your point Roger also BUT, (devils advocate mode)in my opinion the entitlement to Benefit is based upon medical fact isnt it?
I know there are criteria behind the decision but, they cannot make a decision without reference to the medical decision.
That fact cannot be dodged. Entitlement to Benefits is based on whether you are medically fit, according to their criteria, and my friends postulation was, if they make the decisions, they are responsible,

HB58

Does the decision that someone is not entitled to benefit, directly equate to forcing them back to work?

Of course, those of us living in the real world know that having no money to live on tends to mean that one has to work. However, could the SOS/DWP/ATOS argue that they have done no more than refuse benefit and the claimant themselves decided to return to work?

Invalidation

HB58 wrote: »

Does the decision that someone is not entitled to benefit, directly equate to forcing them back to work?

Of course, those of us living in the real world know that having no money to live on tends to mean that one has to work. However, could the SOS/DWP/ATOS argue that they have done no more than refuse benefit and the claimant themselves decided to return to work?

NO because entitlement to Benefit is directly related to their medical condition as the ESA50 clearly shows.