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ATOS - botched pip assessment

Had my ATOS pip assessment back in March.

I got report back, full of lies and unprofessional remarks.

I lost daily care as the assessor only scored me 3 points.

Failed to relay what was told, and also what was on original pip form.

Put in a complaint to atos.

Had a phone call today to apologise as my complaint was lengthy and they were taking time to get right reply.

Said it was clear my pip assessment was full of problems, and said the assessor has been spoken to, assessor's medical examiner has replied with a 6 page report.

I should get final response back next week.

Also said they went through pip form to see what assessor failed to do.

So my question is this, clearly assessor failed in her duty of care to report things adequately and professionally, can I take legal action over the fact she gave dwp misleading report resulting in loss of benefit and am now having to go to a tribunal!?
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Comments

  • atrixblue.-MFR-.
    atrixblue.-MFR-. Posts: 6,887 Forumite
    Had my ATOS pip assessment back in March.

    I got report back, full of lies and unprofessional remarks.

    I lost daily care as the assessor only scored me 3 points.

    Failed to relay what was told, and also what was on original pip form.

    Put in a complaint to atos.

    Had a phone call today to apologise as my complaint was lengthy and they were taking time to get right reply.

    Said it was clear my pip assessment was full of problems, and said the assessor has been spoken to, assessor's medical examiner has replied with a 6 page report.

    I should get final response back next week.

    Also said they went through pip form to see what assessor failed to do.

    So my question is this, clearly assessor failed in her duty of care to report things adequately and professionally, can I take legal action over the fact she gave dwp misleading report resulting in loss of benefit and am now having to go to a tribunal!?


    Well good on you for making a complaint. If the health care professional is registered, I.E a practising nurse or doctor, then you can also complain to the nursing and midwifery council about them, but TBH I think your better off asking the DWP for a second assessment with a different contractor that is Capita and asking them to stay any decision until this happens explain a complain has gone in etc and that you want another assessment to done due to the HCP negligence.
  • Sam_Fallow
    Sam_Fallow Posts: 923 Forumite
    Part of the Furniture 500 Posts Combo Breaker
    Well good on you for making a complaint. If the health care professional is registered, I.E a practising nurse or doctor, then you can also complain to the nursing and midwifery council about them, but TBH I think your better off asking the DWP for a second assessment with a different contractor that is Capita and asking them to stay any decision until this happens explain a complain has gone in etc and that you want another assessment to done due to the HCP negligence.

    and have a witness sit in on the assessment. I made a secret audio recording of our last assessment (at home) even though I couldn't have used it in the case it did help me remember what was said and when.
    I don't like morning people. Or mornings. Or people.
  • System
    System Posts: 178,224 Community Admin
    10,000 Posts Photogenic Name Dropper
    Ahh ATOS, they rang me yesterday evening and told me to call back urgently (slightly difficult when you're at work and the call centere is closed when you finish), was supposed to have my medical today and low and behold its been cancelled and moved to next eek, with less than 24 hrs notice. :mad:

    I swear they werent this useless when i was on ESA!
    This is a system account and does not represent a real person. To contact the Forum Team email forumteam@moneysavingexpert.com
  • atrixblue.-MFR-.
    atrixblue.-MFR-. Posts: 6,887 Forumite
    Sam_Fallow wrote: »
    and have a witness sit in on the assessment. I made a secret audio recording of our last assessment (at home) even though I couldn't have used it in the case it did help me remember what was said and when.
    Actual home recordings whether they knew or not is perfectly usable in a tribunal, there is no law or legal statute that states you have to inform people your recording in your own home.
  • Bananas123
    Bananas123 Posts: 311 Forumite
    i think they !!!! you, if you get a dirty !!!!!!! assessor because;

    they "input" words to form sentances a bit like a report: "claimant, can, do [activity]" etc etc

    > the sentances are very vague and alot of the time non-subjective, also they can claim "human error", so it can be argued both ways.

    "oh no, i don't see that as a lie, that just means such and such" etc

    so the way the tests are manufactured, it's like the assessor is "sending away vague sentances", also they can claim you didn't give the right information... to appear blameless.

    (atleast thats what happened with my esa medical...)

    surely though, pending successful tribunal you will get it backdated ?, if you can cope financially in the mean time ?.


    you can get in trouble, playing inspector gadget though:
    8. Can claimants use their own equipment to record their face-to
    -face
    assessment?
    Claimants may use their own equipment to audio record their face-to
    -face assessment.
    Claimants wishing to use their own recording equipment should make a request to
    CHDA
    as p
    art of the appointment booking process.
    Claimants may also use their own
    equipment to audio record assessments carried out at home provided they
    comply with
    the requirements
    DWP requires that claimants
    using their own equipment must be able to
    provide two
    copies of the recording at the end of the assessment
    in
    a way which ensures
    that the
    recording has not been tampered with and that it is a
    complete,
    reliable and accurate
    record of the assessment. One copy must be given to the CHDA
    healthcare professional
    at the end of the assessment.
  • xylophone
    xylophone Posts: 45,426 Forumite
    Part of the Furniture 10,000 Posts Name Dropper
    low and behold its been cancelled and moved to next eek, with less than 24 hrs notice.

    :eek:

    Lo and behold, a low move?:)

    If you didn't laugh, you'd cry?
  • atrixblue.-MFR-.
    atrixblue.-MFR-. Posts: 6,887 Forumite
    edited 9 June 2016 at 11:53AM
    Bananas123 wrote: »
    i think they !!!! you, if you get a dirty !!!!!!! assessor because;

    they "input" words to form sentances a bit like a report: "claimant, can, do [activity]" etc etc

    > the sentances are very vague and alot of the time non-subjective, also they can claim "human error", so it can be argued both ways.

    "oh no, i don't see that as a lie, that just means such and such" etc

    so the way the tests are manufactured, it's like the assessor is "sending away vague sentances", also they can claim you didn't give the right information... to appear blameless.

    (atleast thats what happened with my esa medical...)

    surely though, pending successful tribunal you will get it backdated ?, if you can cope financially in the mean time ?.


    you can get in trouble, playing inspector gadget though:
    What trouble would that be?


    All I see in your post about the recording requirements is the DWP requires this and the DWP requires that and the DWP requires expensive tapes and DVDs and DWP requires you use a authorised equipment and the DWP wants you to bow down and kiss their boots made of hide.


    they are simply requirements not law, The DWP could claim the audio recording is tampered with, but if you provide the dictaphone with the original audio file time stamped and dated and that has no way of editing the audio files anyway (provide the instructional handbook to prove it has no editing facility My Dictaphone has no way to edit a file, and can only delete a file in its entirety) their requirement is shot down in flames.


    They could argue no permission for use, and again its an argument, not the law.


    If you walk into a ATOS or CAPITA center with the intention of recording, there is no requirement for you to tell them, if they discover you are recording, they can ASK you to delete the audio file (but again that's a request and not the law), and again it could be used as evidence but its harder to get a tribunal panel to allow it unless you know the law surrounding the recordings and include that, because if they then don't listen to the recording you can appeal based on error of law!.


    Again there is no LAW stopping people secretly recording in their own home an assessment.


    and no trouble to be in if you do.
  • Alice_Holt
    Alice_Holt Posts: 6,094 Forumite
    Ninth Anniversary 1,000 Posts Name Dropper
    edited 9 June 2016 at 12:26PM
    What trouble would that be?

    If you walk into a ATOS or CAPITA center with the intention of recording, there is no requirement for you to tell them, if they discover you are recording, they can ASK you to delete the audio file (but again that's a request and not the law), and again it could be used as evidence but its harder to get a tribunal panel to allow it unless you know the law surrounding the recordings and include that, because if they then don't listen to the recording you can appeal based on error of law!.

    This is from DWP / CPAG - it is rather different to your view.

    "The DWP has produced a FAQ on the audio recording of Employment and Support Allowance (ESA) Work Capability Assessments

    The FAQ states that:

    You do not have a legal right to have your face-to-face assessment recorded but all requests will be accommodated where possible.
    You should always request audio recording in advance.
    You must sign a consent form.
    If recording equipment is not available you may have to wait longer than normal for their face-to-face assessment. Although this may slow down the benefit process it will not effect your entitlement to benefit.
    You can request to have a home based assessment recorded.
    You may be allowed to use your own recording equipment providing you give DWP/Atos notice and it meets DWP/Atos Healthcare requirements. This includes providing two copies of the recording in such a way to ensure that the recording has not been tampered with and is a reliable and accurate record of the assessment.
    Approved recording media are standard CD and audio tapes only. Video recording of assessments is not permitted.
    If you are caught making a secret recording your assessment will be terminated..."

    http://www.disabilityrightsuk.org/news/2013/june/audio-recording-wca-assessments

    Covert recording risks the assessment being terminated, which may result in the claim being terminated for failure to comply with the assessment process without good cause.
    At which point, the claimant may find themselves in a very difficult situation.Their current ESa claim has been terminated. JSa may take the view that the claimant is unable to satisfy the claimant committment, whilst ESA will not accept a new claim unless the claimant has a new health condition or an existing condition has signifcantly worsened.
    In other words, current ESa claim terminated and now unable to successfully claim JSa and unable to reclaim ESa. This individual may find themselfs with no income, and no ability to claim ESa or JSa.

    Also note that whilst you can ask for an authorised recording to be considered as evidence at a tribunal, "the acceptance of the recording as evidence is at the discretion of the Tribunal".
    A tribunal would be very unlikely to regard a covert recording as reliable evidence, since such a recording could be tampered with.

    The DWP's official guidance on audio recording reflect four main concerns:
    The confidentiality of every other claimant at the assessment;
    DWP staff's rights under the Data Protection Act 1998;
    Recordings made on non-evidential grade equipment can be tampered with so cannot be treated as a definitive record;
    Excerpts of recordings have been posted online in circumstances the DWP believes are inappropriate.
    Alice Holt Forest situated some 4 miles south of Farnham forms the most northerly gateway to the South Downs National Park.
  • SPELLKASTER
    SPELLKASTER Posts: 468 Forumite
    Thanks for the replies.

    I am expecting TBH another assessment in due course as I am well overdue to be reassessed for my ESA.

    This time round I will insist the assessment is recorded, and I will argue that I don't want ATOS to deal with another assessment.

    I am going to seek legal advise on the grounds of the fact that the so called atos nurse failed in her duty of care to report things accurately and fairly, and the fact that she claimed I was not on medication for anxiety when I am.

    My witness is happy to make a statement in defence.

    To date, the dwp have as of yet to submit the file to the tribunal service, its now nearing the usual 28 day bench mark.

    I suspect the dwp will try and drag this out making me suffer financially as I am at the moment.

    I'll report back when I have the 6 page report back from ATOS, I will use this to make a claim.
  • Alice_Holt
    Alice_Holt Posts: 6,094 Forumite
    Ninth Anniversary 1,000 Posts Name Dropper
    edited 9 June 2016 at 8:55PM
    The flawed ATOS assessment will help your case at tribunal.

    However, you will also need to persuade the tribunal that you score the necessary 8 points.
    I would suggest that your tribunal statement focuses on the reasons why you should qualify for PIP. If you can reference this to medical evidence / GP letters / family or carers evidence so much the better.

    Have examples / notes / diary ready to take to the tribunal which relate to the relevant PIP activities & descriptors.

    Casting doubt on the credibility of the ATOS report is helpful, especially if your medical evidence / GP contradicts it. But, bear in mind, that the tribunal is there to decide if the DWP decision not to award you PIP is correct - so make sure they have the information to give you the right award. Don't get too exercised by criticising the botched report. (The tribunal are not there to judge ATOS)

    Some info here: http://www.advicenow.org.uk/guides/how-win-pip-appeal

    I'm sure you are aware of this, and this post is likely to be redundant. But I know from experience how easy it is to get distracted by a sense of injustice.
    If you are preparing your tribunal statment yourself (rather than say, the CAB), then get a couple of friends to proof read it for you. Make sure that when the tribunal panel read it, it comes across as reasonable, credible, persuasive, evidenced, and directly relevant to the appropriate PIP activities & decriptors.
    The tribunal have to come to their decision on the basis of the PIP regulations. .
    Alice Holt Forest situated some 4 miles south of Farnham forms the most northerly gateway to the South Downs National Park.
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