PIP Award and Mandatory Reconsideration

atrixblue.-MFR-.

Alice_Holt wrote: »

Atrixblue and myself have a different opinion on covert recordings of DWP assessments.

This is from CPAG (relating to ESa assessments):

"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

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 re ESa & PIP assesments 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.

ATOS website : http://www.atoshealthcare.com/pip/faq_view/recording_my_consultation

Government response to F of I request : https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/203612/foi-1767-2013.pdf

The OP's neighbor has the recording its was not discovered so the assessment cannot be terminated as its already passed and done and dusted.


Now the DWP cant enforce their policy and guidance and much of what is quoted is that the DWP dislikes the fact they are being recorded this is what its centered around now if they had legal standing on the issue, they would make a clause in the terms and conditions of claiming benefits and make it a contract not to record, that's pretty tough luck when your a public servant and you waive pretty much most of your privacy right when working in public offices.


Also the data protection act DOES NOT APPLY to private individuals. This is a corporate piece of legislation that binds companies, government and small business to, not the private individual, The private individual who makes the recording become the copyright holder, he/she can use this recording as their leisure. There mere fact they are quoting this legislation to individuals is to shock them and make them think the law protects them from private individuals recording them in secret.
Again have a think about it if a cleat breach of DPA was present by recording secretly then there would be an abundance of charges laid by the CPS on people who have made recordings and produced them at magistrate, county and county tribunals, there has not been any such charges.
Also If there was a clear Breach of DPA like the above quotes you put here, then why are courts using them at their discretion, theres a clear objection rout in pre-evidence disclosure for the DWP to use against you wouldnt there!


Again the law is different to the DWP guidance the law contradicts the DWP guidance, so why are you insistence to make it out the DWP sets the bar when it come to recording.


I would encourage ANYONE to record their assessment and make sure that you hid the Dictaphone and turn off any alert alarms put on silent etc before you enter the premises then hit record when your in the private room so it starts when the assessment starts, hit stop when you leave the room.


Again if the evidence is claimed to have been edited, you have options to disprove.


Again if the DWP uses this defence angle and you say it isn't the DWP HAS TO PROVE their allegations of the recording being edited that means paying for an impartial company or forensic audio expert to either prove or disprove their allegations and causing an adjournment of a tribunal.


What you keep posting could deter others from recording their assessment falsely believing they could be in trouble for doing so legally, they wouldn't be but bear in mind if their caught whilst in the building they can be asked to stop recording, have the assessment abandoned (which for those who have really bad memory of conversations kinda proves a point).


Like I said, Guidance and policy is not law and if they don't turn up they cant object. they will have a Pre evidence disclosure pack form the tribunal service with your recording in it, this would be the point to object to it, if they don't its deemed accepted.


As for OPs neighbour she has already recorded it and has potential audio evidence that proves her case, include a raw copy on disc provide it to the tribunal services youll hear back whether the DWP objects to its use and on what grounds, you must make clear in the notes of the SSCS claim form that the recording was made due to poor memory of conversation for personal use and has no been published or edited or entered into the public domain (do not put it up on youtube facebook etc), at the time no one mentioned anything about recording and nothing is sign posted, that there was CCTV with audio within the "private" room (if there genuinely was, at mine there was audio and video recording going in the room for security reasons) and the assessor was aware of this so privacy was not to be expected or being upheld by the contractor undertaking the assessment, You ask the tribunal to accept this recording because the evidence contained within forms a detrimental part of your tribunal case as evidence.

I'm simply not going to accept the DWP set the bar on audio recordings and we must abide by their guidance and policy.

nad1611

I'd have to agree with atrixblue. here. 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. 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 this 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 and sent it with their Appeal papers and have never had any problems or come back. It seems obvious form researching 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.