As someone with a legal background, however, I am interested in what the law actually is on this subject - as opposed to anecdotal reports of what somebody believes it to be.
As a disabled person with a legal background who has been through these processes, I have more than a passing interest, too.
The law is silent on the issue of recording - there's nothing in the primary or secondary legislation about recording of assessments. However, there is some guidance about recording in the official handbooks issued to the assessment providers (it's in section 4.1.3 of the ESA WCA handbook
, and section 2.7 of the PIP Assessment Guide
). These documents form part of the contracts between DWP and the assessment providers.
In summary, the rules laid down in these documents are that only PACE compliant audio recorders are permitted, which produce two contemporaneous copies of the recording. The claimant keeps one copy and the other is handed to the assessor.
For ESA, Atos held some recorders that could be made available at claimant request - though these requests could be denied if it proved impractical to arrange a recording. I presume this equipment will pass to Maximus.
For PIP, the assessment providers do not have recorders available, so it is up to the claimant to provide one if they want to make a recording.
If a covert recording takes place and the recorder is noticed, the assessor is within their rights to terminate the assessment and report the unauthorised recording to DWP. In practice, some assessors will allow recording on a digital recorder without a copy being provided, though this is at their discretion and, to a strict reading of the handbooks, ought not to be allowed.
The evidential value of a digital recording is lower than on an evidence grade recorder, as the recording can be tampered with. It would be possible to produce a digital recorder that digitally signs the recording to prove it has not been tampered with, but I'm not sure if such equipment is available in a portable format. I believe some police stations now use digital recording with server based storage, rather than a double CD-R or double cassette recorder, though I am no expert in this area and could be incorrect.
I accept that there is a problem with claimants' statements being ignored or misrepresented in many disputed benefit assessments, also that there are far too many disputed assessments. However, I think recordings are usually of little use in sorting out any dispute. A decision maker - be it the DWP decision maker making the initial decision, a DWP decision maker making a reconsidered decision, or a tribunal making a decision on appeal - reaches their own view on the issues before them to the civil standard of proof (balance of probabilities). What was said or not said at the assessment is largely immaterial - what matters are the arguments that the claimant can put forward to support their claim.
Say, for example, that there is a dispute about how far the claimant can walk. The claimant said they could not walk more than 20m, the assessor found they could walk 100m, the DWP decision maker agreed with the assessor and reconsideration failed to change the decision. A recording of the claimant saying they could not walk more than 20m at the assessment does no more to support the claimant's case of limited walking ability than them making the same claim verbally to the tribunal. There is no need to rebut the assessment report explicitly in order to succeed at reconsideration or tribunal - what the claimant has to show is that their claimed level of disability is more likely to be correct than the assessment report.
As with many matters relating to disability and sickness benefits, it is impossible to measure someone's walking ability objectively - the most you can do is to test someone at a single moment in time. To support their claimed level of disability, the claimant can "paint a picture" of their mobility, explaining what happens when they try to walk, how those matters relate to their symptoms and, if they have one, to their diagnosis. To support this picture, the claimant can explain any medication and treatment, including whether it helped or not. It is also important to explain the value, if any, of any aids that the claimant uses or that might be recommended for that claimant.
A tribunal is not able to carry out a medical assessment but can observe the claimant's abilities at the tribunal, so they will look at how the claimant enters the room and what aids they are using.
I respectfully disagree with what you said earlier in the thread:
Fortunately in some ways, but unfortunately, perhaps, in others, all my symptoms at the moment are completely unprovable. You can't prove pain, you can't prove fatigue. Hence it's pointless applying for anything, as it's not objectively possible for me to prove anything.
Even with my consultant's input, he would only be able to say: "My patient has reported pain, my patient has reported fatigue" etc. - because he can't prove it either.
I have a neuromuscular condition that has few objectively observable effects on physical examination. I successfully applied for DLA and then for PIP (where I have an "ongoing period" award - the nearest equivalent to an indefinite DLA award) based on a short letter from a consultant neurologist setting out the key facts and his assessment of the prognosis, plus a list of my medication. As with most medical reports, the majority of that single sided letter was informed opinion, not provable fact.
I was called to a PIP assessment, where the assessor spent most of the time working through my PIP2 How your disability affects you
questionnaire answers with me. I had been careful to tell a consistent story throughout the form, noting the variability in my condition and explaining the claimed level of disability by reference to the underlying symptoms. I was careful not to stray into any areas that were legally irrelevant, as I wrote my answers with the secondary legislation in front of me.
The assessor clearly felt able to agree with much of what I had written on the day. She said there was no need to carry out a physical assessment and, considering my poor health and high pain levels, felt it would be unethical to ask me to undergo much in the way of assessment. I insisted that she carry out whatever assessment she could, wanting as many objective facts as possible in the report, but we were unable to do much before she felt, quite reasonably, that we had reached the limit of what was ethically justifiable.
The assessor's report gave me more points than my own self-assessment, though I had erred on the side of caution when it was unclear whether a descriptor applied. The decision maker accepted the assessor's findings in full.
You will never know whether it is impossible to obtain disability benefits unless you apply for them. There are relatively few people who have objectively measurable conditions, but the statistics show that claims succeed from people across the spectrum of disability.
Too many genuine claims fail, often for lack of advice and because of poor case presentation. I want to play my part in helping, which is why I'm continuing with my legal studies (one year of a part-time LLB to go). After graduation, I intend to volunteer for the CAB and possibly the Free Representation Unit, who represent otherwise unrepresented people at tribunals.
Edited by David_W (Thu 30-Apr-15 12:42:49)