ATOS - botched pip assessment

atrixblue.-MFR-.

Alice_Holt wrote: »

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.

Again Theres a lot of "could" and "may" in this comment.


I also stated you must also know the LAW that surrounds it.
Requests, Guidance, Coulds and Mays are not the law.


I have reasonable excuse to record my conversations with important people, because my memory is poor I can review that conversation later to refresh what was said. And a tribunal can take it on at their discretion or if you know the relevant laws quote it to them top make it part of evidence that they cannot use discretion clauses.


You could also pre-empt any "possible tampering" excuse by way of a professional assessment or forensic audio expert review and affidavit if you so wish to pay for that.


Guidance is not LAW again the DWP maybe a law unto themselves but they are not above the LAW.

SPELLKASTER

Alice_Holt wrote: »

The flawed ATOS assessment will help your case at tribunal.

However, you will also need to persuade the tribunal that you score the necessary 15 points (or qualify on S29 / S35). I would suggest that your tribunal statement focuses on the reasons why you should qualify for ESa. 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 ESa 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 ESa 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 ESa decriptors.
They have to come to their decision on the basis of the ESa regulations. .

My claim if for the fact I only scored 3 points for daily care.

I was originally on middle rate DLA on a lifetime indefinite award.

Alice_Holt

SPELLKASTER wrote: »

My claim if for the fact I only scored 3 points for daily care.

I was originally on middle rate DLA on a lifetime indefinite award.

Sorry. Have just realised I referred to ESa & not PIP in my post. So forget my comment about 15 points. I will now amend my original post. My apologies.

PIP, of course, requires 8 points for a Standard DL award (equivalent to MR DLA).
What are the points awarded? (I guess the 1 point is for help/aid for managing medication)
Where do you think you should have been awarded the additional points.
http://www.benefitsandwork.co.uk/pip/indexxx.php

Do you use any aids which could give you 2 points under a number of activities. For instance if you use any aids such as bathroom rails / shower seat; raised toilet / rails to help you off toilet / grabber for socks shoes etc; perching stool for sitting whilst preparing a meal / electric can opener/ microwave - put this in your statement as aids will score 2 points for each activity.

SPELLKASTER

Alice_Holt wrote: »

Sorry. Have just realised I referred to ESa & not PIP in my post. So forget my comment about 15 points. I will now amend my original post. My apologies.

PIP, of course, requires 8 points for a Standard DL award (equivalent to MR DLA).
What are the points awarded? (I guess the 1 point is for help/aid for managing medication)
Where do you think you should have been awarded the additional points.
http://www.benefitsandwork.co.uk/pip/indexxx.php

Do you use any aids which could give you 2 points under a number of activities. For instance if you use any aids such as bathroom rails / shower seat; raised toilet / rails to help you off toilet / grabber for socks shoes etc; perching stool for sitting whilst preparing a meal / electric can opener/ microwave - put this in your statement as aids will score 2 points for each activity.

I got 3 points for daily care.

This consisted of 1 point that I need help with medication and I use an aid ie dosset box, and 2 points as I cannot manage budgeting decisions.

On my pip form I stated that I needed help to plan or cook a simple meal as I have learning difficulties, and I have fibromyalgia and I find it difficult to cut veg, and open bottles/cans.

I then stated because I also have a fast heart rate (sinus tachycardia), I needed help to get out of the bath as I would get out of breath and feel pain.

Finally I have a mental health condition called paranoid personality disorder.

I find it difficult to cope with strangers, don't like groups of people, and need support eo engage with others.

The assessor was told all of this and failed to report it.

I believe I should have scored 14 points given me enhanced care.

Now waiting to attend a tribunal.

I made a complaint to ATOS who have questioned the assessor at length, and I am due back a lengthy 6 page report.

ATOS said I could use this and send it to tribunal service and they admitted on the phone my assessment clearly had issues.

I had a witness at the assessment.

nad1611

Couldn't read this without saying something. Well done for persuing this. It's so frustrating that you're having to deal with the ineptitude of others when you simply want your needs assessed. I sometimes think that these assessors should be asked to attend the Tribunal's where their word is being called into question. It seems that if a claimant were to fabricate or outright lie on their claim form, then everyone would be up in arms and the claimant would be acting illegally, what redress is there for assessors who do the same and let's face it it's hardly the first time this has been mentioned.

Anyway for all that, I agree with Alice that you should focus more now on why you feel you should have been awarded points for the Daily Living Activities. You could get bogged down by the Atos assessment. That's already an issue that you have raised and you will hopefully have the report from Atos to send to the Tribunal ahead of any hearing.

A word of advice in case it helps, don't presume anyone knows what your needs are just because of your condition/s. With PIP always refer to what you can do for the majority of the time, so more than 50% of the day for the majority of days in a year etc. Also look at how reliably you can do any activity. So check the criteria for this as it's been written into law. If you can't do something reliably ie, repeatedly, safely and in a reasonable time and also for the majority of the time, you should be awarded points as though you cannot perform that activity at all. There are also rules surrounding what you might be able to achieve for part of day but not later in the day. So focus now on why and where you should have been awarded points and spend less energy on your anger and frustrations at the way the assessment was carried out albeit, you have every right to be angry and frustrated.

I do wish you success and well done for sticking with it, it can't be easy for people who have ill health to also have to deal with this sort of shoddy treatment.

densol_2

Good luck !

In 2015 I had an IIDB assessment, ESA assessment, injury benefit assessment, paychiatric and psychology assessments. All said I was seriously mentally unwell.

PIP assessment in the middle of these indicated everything was fine and dandy! Total rubbish. Those ATOS PIP assessors are really sonething else. I persued my claim and got awarded standard care no mobility which is what I expected but wow what a hurdle once you have someone ( not experienced in mental health ) filling in a report with lies.

Widelats

So, if i use a voice recorder on a samsung mobile phone, and the recording comes out perfectly clear and useable, it can not be used in a tribunal? Is that right?

Alice_Holt

Widelats wrote: »

So, if i use a voice recorder on a samsung mobile phone, and the recording comes out perfectly clear and useable, it can not be used in a tribunal? Is that right?

No - I don't think it can be used at a tribunal hearing.

Have a look at post 9.

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

If you are caught making a secret recording your assessment will be terminated.

nad1611

Widelats wrote: »

So, if i use a voice recorder on a samsung mobile phone, and the recording comes out perfectly clear and useable, it can not be used in a tribunal? Is that right?

Thought I might as well copy and paste my answer here from another thread, rather than typing again;

There's always a lot of "illegal" and "not allowed" terminology when the subject of covertly recording comes up. I've yet to find any case where the DWP have successfully sued a claimant for recording covertly when it arises that they have done so at Appeal.

The DWPs guidelines are just that and are not legal requirements. The fact thay say, the claimant does not have a legal right to have an assessment recorded, doesn't translate as it's illegal if you do it. Yes a claimant could be asked to stop recording and yes the assessment might be terminated but this still doesn't mean that a claimant would automatically have their benefit stopped. An Upper Tribunal judge found in favour of a claimant who refused to stop recording covertly and had his assessment stopped, his benefit was stopped and he appealed, he lost his appeal at the first tier stage, so appealed to the Upper Tribunal, the judge here upheld the Appeal and allowed that a new assessment take place.(I'll try and find the citing)
The judges comments, whilst not changing anything very much agreed that the DWPs guidelines for the type of equipment required, were financially prohibitive (especially for those reliant on benefits) and the type of equipment demanded, was actually more difficult to get hold of than the equipment used by the DWP themselves in cases of benefit fraud. It's no wonder people record covertly when everything's against them.

Whilst anecdotal, you can find many people who have transcribed their assessments from beginning to end from their covert recordings and sent it with their Appeal papers and have never had any problems or come back. It seems obvious from searching google, that Tribunal judges may and do allow evidence from covert recordings to be admissable. There's certainly evidence of it at Employment Tribunals.

I think at the end of the day though, it's difficult to know how much use a recording will be in order to win a case on Appeal. I think the important thing will be to prove your case as though nothing else has happened and that's the way the Tribunal I believe will tend to look at it too. They will be looking to see if the assessor/DM have erred in law, when looking at your case. Whilst disputing the assessors comments may help discredit the reliability of the assessment, it will still be necessary for the Tribunal to make a decision in favour of the claimant and that can only be done, if there's enough consistent and credible evidence to do so.

I believe that people should make up their own minds about whether covert recording is something they want to do. They should also know that it is not illegal. Knowing that it may not be admissable on the grounds it could have been tampered with is a potential problem, but it could be a good source from which to base an argument,for someone with poor recall might prove invaluable.

Sam_Fallow

Lots of debate on the legalities of recording, I just want to add that when I made mine it was purely for my own use.

There is usually quite a time between the actual assessment and receiving the report. During that time it is entirely possible forget exactly what was said when and by whom. The recording enables me to say 'yes I definitely said that in that way, which is not how it is portrayed in the report.' It is there only to give greater confidence in any subsequent appeal.

I had no need to use it any further after the last assessment but I'll keep it for future comparison.

Whether it is legal or allowed or questionable, I shall be doing it again at the next assessment.