ATOS and Benefits Agencies legal decisions.

rogerblack

Invalidation wrote: »

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,

You are misinterpreting the legislation.
Entitlement to benefits is based on if you meet the entitlement criteria.
It is not based on wooly phrases such as 'those in the support group are more severely ill, and not expected to work in the short term' - beloved of government ministers.

It is based on the legislation as enacted by parliament, any statutory instruments that add to them, and any subsequent caselaw.

It is specifically _NOT_ a test of if any reasonable employer would employ you, for insurance or other reasons.

GlasweJen

Surely if you got injured at work it would be your employer who you sue as they haven't accommodated for your disability properly?

mynameistallulah

HB58 wrote: »

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

No, it does not. The WCA looks at whether a claimant can do some work, not all work. If the claimant then claims JSA, they will be able to limit their job search to positions that are suitable for their role.

GlasweJen wrote: »

Surely if you got injured at work it would be your employer who you sue as they haven't accommodated for your disability properly?

Yes, assuming the employee declared their condition and was allowed to work in an unsuitable role/ without suitable adjustments there would be an issue of employer liability. However this would be countered by the contributory negligence of the employee, in putting themselves in a position where injury was foreseeable.

Invalidation, I can only assume that your barrister friend was giving his opinion based on the information you gave him. Given the way you phrased your first post, I can see why he would respond as he did. However the fact is that the DWP do not force individuals into work that they cannot do, and of course, for any decision made by the DWP, the claimant has the right to appeal to tribunal, where there will be a doctor on the panel.

jetplane

Invalidation I think you can see that the law is an @$$ and it is all down to interpretation and I think your barrister friend advised you on the assumption that failing the WCA forced you to into work, legally it does not. ATOS do not make a decision to send you to work neither does the DWP.

The WCA does not assess ability to work it asesses ability to perform certain tasks. It does not consider, nor is it concerned with your ability to work or whether you are employable. That is the jobcentres domain. There is a regulation which does consider your return to work but this is an exceptional circumstance.

Yes the decision is made on facts, or the interpretation of those facts. However the facts relate to whether the person can perform a number of tasks, not whether they are disabled or unemployable. Disabled people do work and some disabled people can perform these tasks. Yes any medical evidence on whether you can perform these tasks has to be considered, however unlike criminal law the proof required is balance of probability and not beyond reasonable doubt.

So if the DWP conclude that you do not satisfy this test then a decison is made that you are not entitled to that benefit. You can appeal.

The decision does not say that you have to work it says that you are not entitled to that benefit. In law it is independant of any decision for you to return to work or claim JSA.

The fact is, that in real life the claimant often has to sign on for work. To sign on and receive benefit the claimant has to basically agree that they are fit for work or some work. So at that point they are agreeing to look for work and the onus is on them to declare a disabilty. If they do not look for work, or put to much restriction on their availability for work, then they are sanctioned and their benefit is withdrawn. If they start work it is between them and their employer how they manage a disability and therefore becomes employment law/ DDA.

HB85
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?

Exactly ^^^
The system does force claimants onto JSA or into work, it's either that or have no money. However the decisions are independant. A claimant can be refused ESA as he does not satisfy the WCA but simultaneously be refused JSA because he does not satisfy the JSA requirements.

jetplane

mynameistallulah wrote: »

No, it does not. The WCA looks at whether a claimant can do some work, not all work. If the claimant then claims JSA, they will be able to limit their job search to positions that are suitable for their role.

Does the WCA consider work other than when considering reg 29? The problem with limiting their job search is the difference between what the claimant feels is suitable and what the jobseekers direction requires. And there lies the route of sanctions.

victorias_dad

In my opinion insurance companies are being too quiet on this, as it will be them left to pick up the pieces of any injury claims I believe they should require any potential employee who is seeking work after being decared fit by atos to undergo a proper medical by a proper doctor i wonder what the response would be at an interview stage if the question was asked "are you sure your insurance co will cover me in view of my medical history"?

mynameistallulah

jetplane wrote: »

Does the WCA consider work other than when considering reg 29? The problem with limiting their job search is the difference between what the claimant feels is suitable and what the jobseekers direction requires. And there lies the route of sanctions.

Of course it does - all the descriptors indirectly relate to whether someone can work (or not).

"What the claimant feels is suitable" may be very different to what the claimant can do. A claimant will not be sanctioned for refusing to do something that they are not able to, they will be sanctioned for being precious about what they wish to do.

mynameistallulah

victorias_dad wrote: »

In my opinion insurance companies are being too quiet on this, as it will be them left to pick up the pieces of any injury claims I believe they should require any potential employee who is seeking work after being decared fit by atos to undergo a proper medical by a proper doctor i wonder what the response would be at an interview stage if the question was asked "are you sure your insurance co will cover me in view of my medical history"?

Why do you assume that a "proper doctor" is required to complete a "proper medical"? Is a GP better qualified than a physio to give an opinion on someone with a bad back?

jetplane

mynameistallulah wrote: »

Of course it does - all the descriptors indirectly relate to whether someone can work (or not).

Ah well like I say it's all down to interpretation. I am assuming we are both familiar with the detail of the descriptors and in my opinion they do not even indirectly relate to whether someone can work. And at no point do they look at whether the claimant is available for some work. In fact a tribunal often opens with the statement that the panel are not there to assess what work can be done, if any.

"What the claimant feels is suitable" may be very different to what the claimant can do. A claimant will not be sanctioned for refusing to do something that they are not able to, they will be sanctioned for being precious about what they wish to do.

Precisely but who decides what the client can do and whether they are being precious, who decides what the claimant is able to do? The DM. Your post implied that a claimant could limit their jobsearch to positions suitable to their role. My point was that they will only be able to limit their job search to what is reasonable in the JC+ advisers opinion and not the claimants and these can differ immensley.

Social security legislation is recognised as one of the most complicated areas of law and like all other legal principles is open to interpretation. I think the point is, in relation to the original post it would never be as simple as someone failing the WCA, having an accident at work and then suing ATOS or DWP.

mynameistallulah

jetplane wrote: »

Social security legislation is recognised as one of the most complicated areas of law and like all other legal principles is open to interpretation. I think the point is, in relation to the original post it would never be as simple as someone failing the WCA, having an accident at work and then suing ATOS or DWP.

I don't find it complicated at all, but I'd be in the wrong career if I did!