ESA Migration the best way forward/options.

rogerblack

Simon7685 wrote: »

I asked for my WCA to be recorded, which I have a right to do.
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The Government said that claimants were entitled to ask for their WCA to be recorded. I asked for this, when I attended and asked about it they said NO it wasn't being recorded. They then offered to cancel the WCA until they could do a recorded one, which I accepted. I have not refused to go ahead with an assessment, so I should not be subject to a sanction for something I haven't done.

You have no legal right whatsoever to a recording.

Practice of the DWP and ATOS may at times allow this, and if ATOS are complying with your wishes, and ministerial comments, that is great.
But, if they had chosen not to, or choose to back away from the commitment to reschedule an interview, you may be treated as not having attended, and you get no benefit until you are seen.

You _have_ refused to comply with an assessment, if ATOS choose to view it that way.
The request for an interview to be taperecorded at the moment has little more legal force than a request for the assessor to wear yellow.

The law as it stands is not affected by ministerial statements.
At the moment, the law is as defined in the case on the issue of tape-recording.
Namely that it may be unreasonable of the DWP to require 'dual tape recorder deck, setup by an audio professional', and that the tribunal (or decision maker) should take into account the reasons the claimant requested a tape recording.

This is quite far from 'you have a right to your interview being recorded'. If for example, they take the view that you are intentionally avoiding the medical because you will fail, then they can deny you benefit quite legally.

If ATOS hold to their commitment to reschedule an interview with a recorder - great.
However, anyone else reading this should not take this as a legal right, and be aware that if you do not consent to proceeding at a medical without recording, your benefit will stop, if they choose to report you as not complying, and not restart until you've had a fresh medical.

Parva

I appreciate your reasoning for wanting the session recorded, it's all too often documented how inaccurate ATOS assessments can be but as Roger pointed out, the danger of refusing to comply could have a far bigger impact than agreeing to take the medical and arguing about the facts that arise from it later.

Simon7685

Again for transparency.....

I know that at present until tested in court their is no legal right to have a WCA recorded. However as a claimant you have the right to request that your WCA is recorded. If I gave the impression that it was a legal right to have it recorded, I apologise. However you do have the legal right to request it is recorded.

This is a right that is not advised to a claimant at any stage of the process by the DWP or ATOS. On the basis that most people place their faith in Govt bodies to advise them of their rights, this is deceitful at best.

My Situation relating to this claim;

I was sent the ESA 50, I filled it in and sent it back. Digressing slightly I also returned the DLA renewal within a week or maybe 2 of the ESA 50. The DLA contacted my GP and hospital consultants, then to my surprise reawarded DLA for a further 2 years based on the medical information received.

ESA claim was passed to ATOS for face to face assessment. Interesting how one Govt department decides to accept the medical information obtained but the other disregards that and does not request its own, just goes straight for face to face.

I received notification of the first WCA, I had also found out that it was my right to ask for that WCA to be recorded. So I rang ATOS on the same day to advise them of my request. They immediately cancelled the appointment and advised me they would contact me again when a recorded WCA could be made. I followed this up with a letter to ATOS confirming the request, a letter to DWP out of courtesy and also an email regarding the recording of WCA's to the then minister MR. Grayling aka I don't answer voters emails and letters Grayling.

Just over 2 weeks ago a letter arrived from ATOS advising me of the WCA on 02/10/12. I assumed this would be recorded as it didn't state otherwise. I attended for the WCA, as it was about to start I asked if it was being recorded and received the answer NO. The ATOS assessor then said if I would prefer a recorded WCA, they would cancel this one and rearrange. I asked if this would affect my benefits, she said not as far as she knew but to check with the DWP as she could not speak for them.

We were then taken back to reception where a phone call was made and the person at the other end was advised I had already requested a recording and as such thought I was getting one. She said there was nothing in the file but I had a copy of the request sent to ATOS. She came off the phone asked if she could have the copy of the letter for the file and advised they would contact me when a recording could be done as it meant they had to request the equipment from Leeds (60 odd miles away).

At no point during this did I refuse to go ahead with the WCA, neither was the option of doing so offered to me. Had that been the case and being mindful of sanctions I would have had no choice but to go through with it and fight the rights and wrongs after the event.

So I fail to see where I have refused to undergo an assessment, I haven't. I simply enquired as to whether the WCA was being recorded as per my previous request. ATOS took over from there and to be fair just got on and sorted it out.

So there should not be any grounds on which DWP can sanction me, as I have done nothing wrong. My grounds for having it recorded are even sound. So if they do then it is my word against that of ATOS and the most positive thing will be that it gives unconditional proof that the recording of these things can and would prove who was telling the truth.

I am currently writing to DWP as a courtesy and check about my continuing benefits, I will also ring them in the next few days.

Parva

Why are you so insistent on this 'recorded' interview? Are you worried that your claim is borderline? The danger with what you are doing is that your claim will go out of the window because you didn't go through with an assessment though hopefully this is not the case for you. I'm not sure why you think that a recorded interview will change the outcome of the assessment, ATOS have to tick boxes and I'm sure they will do so regardless of whether they are recorded or not.

Ultimately, I would take the 'test' and then appeal if the results didn't agree with my actual medical status. Maybe that's just me, but I know that the results that ATOS give are within set bands without waiver and these can only be challenged later. I gave my best case scenario for three of the descriptors and because I did so I qualified for the WRAG. The truth is that I will always fail one of the three descriptors on any given day. I could have contested this and almost did but hey ho, I'll await being called up and they'll see for themselves.

Simon7685

The reason I am so insistant on the recorded WCA is 2 fold.

1. When I had a home visit for a DLA claim in 2009 (I think it was) ATOS sent one of their Doctors to visit me. I was completely truthfull about my problems and disabilities. He went away and wrote a fictional report full of lies and assumptions that he made from some of the answers I had given him. For instance, we live in a 3rd floor flat, there is no lift as a result I do not go out very often and when at my worst I don't go out for sometimes weeks at a time. I said that when I did go out at least once I got to the ground floor the car was there in front of me so I didn't have to walk any further.

He said in his report the claimant goes out 2 to 3 times a week and goes up and down 3 flights of stairs. Each flight of stairs is x metres and he walks to his car which is another x metres. Therefore the claimant walks over 50 metres in an adequate manner in x minutes which gives a speed of x metres per minute. This is outside of the guidelines so the claimant can walk perfectly fine.

He asked to examine me, I had to walk from the living room to the bedroom and required to use my stick to do so. He got up facing away from me. I struggled to get up and using the stick and furniture got myself to the bedroom (a distance of 8 metres at most) he never saw me walk at all during this time. A fact that was noted by my wife. In his report he put that I mobilised from the chair without any aid or assistance and walked through the flat in a perfectly normal manner and speed.

We have an Xbox in our front room that my daughter and other family members use. He asked about that, I told him, he said do you ever use it. I remarked that I had been bought a golf game for it and had tried it once or twice but found it too dificult to operate. He said I regularly play video games on my Xbox to pass away the time. It was located at the other side of the room, so I had to get up and walk accross the room, bend down to change the disc everytime I wanted another game on.

There are a lot more examples in his report these are just a few. He also excluded medical information given by the hospital and said in his medical opinion based on what he had seen me do, the information from the cardiologist was inaccurate and should not be allowed in deciding the claim. I had recently had a heart stress test carried out, which had to be abandoned because I couldn't do it. He said the result of this showed that there was no problem with my heart as the results from the part of the test comleted did not suggest any angina or heart problems.

At the tribunal the panel picked his report apart using information I supplied and information got from the GP and hospital consultants. In the end they said his report could not be relied on as being accurate and they disregarded it in making their decision. The chairman commented that they had never seen a report like it before, in all the time he had been doing tribunals.

He also commented that it was a shame that there had not been a recording of the assessment this doctor had carried out.

I am completely distrustful of ATOS now following this experience, he discounted everything I said, or twisted it to suit his findings. I believe if my WCA is recorded then at least if there was anything like this again, it would be easy to prove what each party had said and also show that the assessor listened to my answers rather than cutting me off, which I have read a lot of people saying they do. In short I do not trust ATOS to be fair, or tell the whole truth.

2. The other reason for wanting a recorded WCA is because this whole system is grossly unfair and has been designed to fail people and push people back into work, getting them off benefits to save money. However whilst I can agree with it to a degree, as reform was needed, they have gone too far the other way now. The only way to protest if you like against this unfair system is to fight it where you can, within the rules and make it harder for them to walk over people like they do.

One way of doing this is for everyone that is called for one of their 'medicals' to exercise their right to ask for a recording. This causes mayhem within the system as they are not set up to accommodate it, not enough equipment etc. The ATOS contract states that they have to migrate 11000 clients a week to ESA, if the majority exercise their right to ask for a recording, this will cause their target driven system to collapse, they will never achieve their desired goal of 11000 cases a week. So it is about working a flawed unfair system and making it harder for that system to work smoothly, a protest if you like against what they are doing to sick and disabled people, in order that the Govt can save themselves a few quid on the welfare bill. hopefully if more people go down this route eventually they might sit up and take note and maybe just maybe they will change the system.

So it is taking action against something I do not think is fair in its current form, it is not fit for purpose.

I am not worried that my claim is borderline, I should easily score the required points, my GP agrees this and my consultants agree also. However this system being what it is, I know they will fail me and say I am fit for work. That is their primarly function, what they are there for. This is pretty much universally accepted throughout the country. People are dying as a direct result of these assessments, people with terminal illnesses being forced onto JSA, the list is endless.

The system is wrong and until the Govt are prepared to look at changing it, those that are subjected to being put through it should make it as difficult as possible for them to operate it smoothly like they want.

Then of course there is the other side of the coin, it is alright finding all these sick and disabled people fit for work but where are the jobs for them to do? What chance do they have of getting one of the few jobs there are when thry have to compete against fit and well people?

Parva

tl;dr

I can only wish you good luck.

DarkFallout

As far as I am aware, Atos do not refuse any requests for recorded assessments.