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Standard User TLM
(legend) Tue 28-Apr-15 20:55:02
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Recording a benefits assessment


[link to this post]
 
Hypothetical question, as I'm not applying for any benefits, but as I have a degenerative condition, it's likely I might have to at some point.

However, I'm in touch with people who do need to apply, and the ATOS guidelines for if you would like to record your assessment interview have been brought to my attention.

Specifically, they say that:
Your recording equipment must be able to produce two identical copies of the recording at the end of the consultation, either in audio cassette or CD format. You will need to give one copy of the recording to the Health Professional undertaking your consultation, at the end of the consultation. Devices like PCs, laptops, tablets, smartphones or MP3 players are not acceptable recording devices.


So how, in practice, would anybody go about that, then? Effectively, you can't use ANY contemporary recording device, and you MUST be able to provide two identical hard copies (not digital files) at the end.

I can't think of any device that has an integral capacity to make two identical recordings of the same thing, simultaneously. You could record the digital file, and use it to create first one CD, then the other, but that would presumably contravene the part about PCs, tablets, laptops, smartphones etc. not being permitted, AND the bit about producing two identical copies at the end, because it would require further work (albeit not much) to create the second copy, so you wouldn't literally be able to finish the consultation with a copy each to keep.

I realise the probable intention is to deter as many applicants as possible from even thinking about doing this, but just say you wanted to call their bluff and do it, how would you go about it?

And bear in mind that benefit applicants probably won't have a lot of money to invest in gadgets they're only going to use once or twice, AND might have difficulty carrying a lot of kit to the interview, too. Struggling in with an ancient housebrick of a tape recorder under each arm would probably mean they don't get any benefits, as they've just demonstrated they have "no problems"

T.
Standard User longedge
(member) Tue 28-Apr-15 21:35:45
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Re: Recording a benefits assessment


[re: TLM] [link to this post]
 
Standard interview recording equipment either tape or CD. Not the sort of thing that the average person can afford or would want I suppose.
Standard User TLM
(legend) Tue 28-Apr-15 21:43:42
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Re: Recording a benefits assessment


[re: longedge] [link to this post]
 
No, exactly. Especially not for probable one-off use.

Although there's probably a small business to be had, renting it out to other people who would like to record their assessment interview.

If there weren't so many cases of applicants being convinced the assessor wrote up the report with reference to a different interview, OR furnished made-up answers to questions that were neither put nor tested during their assessment, there wouldn't be the issue of people wanting to record it in the first place. It's clearly designed to make it as difficult as possible for them, if NO readily available contemporary equipment (the sort most people already have at home) is acceptable.

T.


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Standard User tommy45
(knowledge is power) Tue 28-Apr-15 21:47:25
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Re: Recording a benefits assessment


[re: TLM] [link to this post]
 
Atos did provide audio recorded face to face interrogations AKA (WCA) on request, this would usually delay the WCA as they had to share the dual cd recording device between several centre's and would ferry it between assessment centres in taxi's
Atos's contract is nearly up, it will be the new company MAXIMUS will take over
Maximus

they would i think use something like this

neal

Edited by tommy45 (Tue 28-Apr-15 21:54:31)

Standard User TLM
(legend) Tue 28-Apr-15 22:01:08
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Re: Recording a benefits assessment


[re: tommy45] [link to this post]
 
I realise it won't be Atos forever, but having said that, I doubt the rules about recordings will be significantly overhauled. They don't want people to do it - that much is obvious. It's my bet the successor won't want people to do it, either. So they'll still be saying it's OK as long as you inscribe in on clay tablets, in cuneiform, with a stylus - or similar nonsense.

Apparently, recording has never been available for PIP claims - only ESA - and you never had any enshrined right to the latter. You had to request it, in advance, and they claimed to accommodate requests "where possible", but if they claimed it wasn't possible, you had no redress.

Edit (in response to your added link). No prices quoted. If it's price on application, it suggests an ordinary person - especially a benefit claimant - would find it's out of their league.

My mum always used to say (probably still does, as she's still with us): "If you have to ask, you can't afford it."

There are dozens of gadegets on Amazon listed as "interview recorders" - for £20, or thereabouts. But they're all MP3 recorders & dictaphones, which are expressly banned.

Edited by TLM (Tue 28-Apr-15 22:06:08)

Standard User lelboy
(committed) Wed 29-Apr-15 00:31:06
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Re: Recording a benefits assessment


[re: TLM] [link to this post]
 
As Tommy says, they can provide the equipment - in fact it's a legal requirement for them to do so - if requested, in writing ( I suggest recorded delivery). All manner of chicanery goes on and, has has been said, the "interview" is often delayed because of "shortage of equipment" - why that should be, I have no idea other than they don't want irrefutable evidence offered at any appeal!
Standard User tommy45
(knowledge is power) Wed 29-Apr-15 00:52:34
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Re: Recording a benefits assessment


[re: TLM] [link to this post]
 
Yes that neal equipment would be expensive, but isnt designed for the home user really, but for it to be able to be used by a court ect, it has to be to a certain standard, and both parties would need a copy,
But there is nothing stopping you using a recording device covertly for your own use , but you couldn't submit it in evidence at a later date

There again audio recorded wca's aren't all that, as ATOS still will tell porkies about their observations ect
Standard User TLM
(legend) Wed 29-Apr-15 10:38:33
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Re: Recording a benefits assessment


[re: lelboy] [link to this post]
 
What is your source that it's "a legal requirement", please?

My understanding is that it's on a purely goodwill basis - i.e. you can ask, and they claim they'll "try to accommodate" such requests where possible, but they don't offer any guarantee, and you certainly can't claim any breach of process if they fail to do it - it's just hard luck.

They also say trying to accommodate your request "may delay your claim" - so another reason people who may be desperate for the money would be put off doing it. Most claimants (though I'm not one of them, yet), don't have the luxury of saying: "Oh well, it doesn't matter if this moves me to the back of the queue."

T.
Standard User lelboy
(committed) Wed 29-Apr-15 11:54:44
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Re: Recording a benefits assessment


[re: TLM] [link to this post]
 
Hello, My source is straight from the horse's mouth i.e. Atos.
I recently - some six months ago - acted on behalf of a disabled friend of mine, who was having an uphill battle with the benefits people. He has had two refusals, on the advice of Atos - the first being unrecorded. Such was their chicanery and untruthfulness, I suggested that they should provide him with the recording facility, as his previous escapades with them were fraught with inaccuracies that required him to go to appeal (successful). They wittered on about "only a few machines available", but when I pressed the matter - citing their previous behaviour - they relented and provided said machine: this was because I told them that he would not participate in any unrecorded interview. Of course they didn't want it recorded, but had to comply or no interview. The ministry also advised that they - Atos - have to provide said machine, and they did, even though it took a few months and the interview was held at a different place (Euston instead of Romford). When the time comes - insist!
Standard User 4M2
(knowledge is power) Wed 29-Apr-15 14:06:48
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Re: Recording a benefits assessment


[re: TLM] [link to this post]
 
It's a shame that none of the current opposition parties have announced that they will scrap the WCA (ATOS/Maximus "medical assessment") if elected and simply use GP and consultant reports to establish whether or not a claimant is fit for work. An assessment made by a single ATOS/Maximus HCP (healthcare professional, who may be a nurse or physiotherapist) does in many cases outweigh the opinion of consultants and GP's when there is an unfavourable result. 40% of those unfavourable results are overturned at appeal (90% if a claimant is represented by an independent benefits adviser) even when an audio recording of the WCA was not used.
Standard User normcall
(committed) Wed 29-Apr-15 15:53:36
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Re: Recording a benefits assessment


[re: TLM] [link to this post]
 
Also beware of their 'trick' assessment rooms without access for the disabled - also incurs 'possible delays'
All assesment rooms have to have suitable access (lift/flat level floor and suitable equipment) which many do not have for some reason.
Standard User TLM
(legend) Wed 29-Apr-15 17:21:55
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Re: Recording a benefits assessment


[re: 4M2] [link to this post]
 
I am aware of all this - but only as a result of being a "likely" future claimant, and having contact with existing claimants.

All of us have an incurable degenerative disease, which means there's no question of anyone trying to "swing the lead", as it's called.

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.

So effectively, his testimony would be worthless, because he can only reiterate things I've told him myself - which would be effectively the same as me saying them, uncorroborated. frown

Anyway, it was only a little hypothetical - I accept this is not a benefits website. I was just curious how people would go about it, IF they were determined they wanted to record their interview - without resorting to subterfuge.

True, a surreptitious recording may not be accepted as evidence. Then again, it may be, if the evidential value outweighs the dubious ethics of acquiring it in the first place. I.e. if you had proof that an assessor had distorted the facts - e.g. said your walking was unaffected, when you had answered unambiguously that you struggled to do 20 yards, it would surely outweigh the fact that you ought not really to have been recording.

At the very least, if you couldn't use it in court, you'd certainly be able to share it with interested parties such as the press, or your MP. The technical infraction of having recorded it would be minor in relation to the misconduct exposed.

T.
Standard User TLM
(legend) Wed 29-Apr-15 17:40:31
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Re: Recording a benefits assessment


[re: lelboy] [link to this post]
 
Oddly, ATOS are the very same people who are saying on their official website that if you want it recorded, you have to bring your own equipment.

Linky

Are you saying they are publishing official guidance which is in breach of a legal obligation to provide such equipment, if requested?

Sorry, but much as I distrust ATOS, I think even they would balk at publishing something that misrepresents the law on the subject, and that this would have been seized upon very quickly by the press, and by rights advocacy groups, had they tried it.

Of course, the guidance I've linked to is for PIP - it may be that the rules for ESA are different (if that's what your friend was trying to claim). Although I can't for the life of me see why they should be. Yes, the qualifying criteria are different, but I can't see any reason there should be different laws regarding entitlement to record the interview, and which party must or may provide the equipment!
Standard User s_h
(eat-sleep-adslguide) Wed 29-Apr-15 17:54:12
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Re: Recording a benefits assessment


[re: TLM] [link to this post]
 
In reply to a post by TLM:
So how, in practice, would anybody go about that, then? Effectively, you can't use ANY contemporary recording device, and you MUST be able to provide two identical hard copies (not digital files) at the end.
I was looking at your thread as it's listed on the Main Site's "active forum discussions" - it occurs to me if you're allowed or expected to use your own equipment, as one of your later links indicates, you could take in two of this sort of relatively inexpensive cassette recorder:

Philips AQ1001/05 Portable Audio Mono Cassette Recorder £26.99.

Then you would have two cassette tapes and could leave one and keep the other.

I realise it's still a lot of money for a claimant but might not be prohibitive if a lot rides on the outcome.

Edited by s_h (Wed 29-Apr-15 17:55:39)

Standard User 4M2
(knowledge is power) Wed 29-Apr-15 18:38:14
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Re: Recording a benefits assessment


[re: TLM] [link to this post]
 
When a mandatory reconsideration is requested from the DWP after a failed WCA then the ATOS/Maximus HCP's written assessment is sent to the claimant. At the WCA, during the physical examination of the claimant, pain may be felt which would indicate restricted movement. This restricted movement could result in the awarding of points: points based on the claimant’s reported pain. If the pain causing restricted movement was not included in the HCP's report (and hence no points) then a recording of the assessment might be useful at the appeal if either the HCP or the claimant were voicing the exact nature of the manipulations being performed.

During the assessment phase of an ESA claim an assessment rate of ESA is paid dependant upon sick notes from a doctor. The sick note may be for chronic pain and in the opinion of the doctor the patient is unfit for work. So why have a WCA if sick notes can be provided long term? Instead the government prefers a private company to do medicals using a LiMA computer program operated by HCP's.
Standard User tommy45
(knowledge is power) Wed 29-Apr-15 19:14:10
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Re: Recording a benefits assessment


[re: 4M2] [link to this post]
 
Thing is with the likes of ATOS they are there to find you fit for work,they will use anything against you to paint a picture that you are in exelent health if they can, they have been known to purposly overlook limitations in mobility and the use of their computer software system LIMA is of help to no one apart from the DWP, They employ so called HCP's that are often less qualified than your GP or specialist consultant , they have a short 2 week training period on how to ignore their hypocratic oath ect, they are not doctors and you are not regarded as the patient for the farce called WCA

Edited by tommy45 (Wed 29-Apr-15 19:17:09)

Standard User 4M2
(knowledge is power) Wed 29-Apr-15 19:29:28
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Re: Recording a benefits assessment


[re: tommy45] [link to this post]
 
I am aware of one case where the HCP was more concerned about doing a spell check than ensuring that the written assessment was accurate at the end of the "medical". In such cases an audio recording may indeed invalidate any misrepresentations.
Standard User tommy45
(knowledge is power) Wed 29-Apr-15 19:49:21
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Re: Recording a benefits assessment


[re: 4M2] [link to this post]
 
It helps reduce the amount of lies, but they still are able to exaggerate some things in order to avoid giving points,So a recorded interview is no guarantee that a claimant will score enough points or even any to qualify for the benefit
And the MR hoop is often no better, Tribunal's tend to be better,but even they can get it wrong sometimes
Standard User 4M2
(knowledge is power) Wed 29-Apr-15 20:06:54
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Re: Recording a benefits assessment


[re: tommy45] [link to this post]
 
It's the lifting an empty cardboard box descriptor that always amuses me - if you can, when seated at desk level, then you are fit for work. An audio recording wouldn't help much with that award of zero points!
Standard User lelboy
(committed) Wed 29-Apr-15 20:20:03
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Re: Recording a benefits assessment


[re: TLM] [link to this post]
 
Not sure where this is going, but...
Wasn't "trying to claim", but had claimed and received ESA - despite having to take it to appeal where, presumably, the panel decided not to use Atos's flawed advice. Got called up again when period expired, but he told ministry that he would NOT attend an Atos interview unless it was taped because, as I said before, Atos are past masters at manipulation of fact - to present, as others have said, their case for you being "suitable for work". The ministry then said that he can have the assessment recorded (this was NOT for PIP) by Atos. I should add that a second appeal was granted also.
I'm not inclined to keep repeating myself, as it appears that you almost "do not want" to be afforded the facility by the assessors. All I can tell you is what I know to be fact. Your comment about the "unlikelihood of Atos misrepresenting their position on line", is way of beam. Atos are known to tell lies (TV secret filming documentary), and given that they've lost the contract, then it's pretty much academic what they said "then" - as they are not going to be in a position to implement any alleged standpoint in future!
Standard User TheEulerID
(member) Wed 29-Apr-15 20:31:57
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Re: Recording a benefits assessment


[re: TLM] [link to this post]
 
Reading the guidelines it's like something from the dark ages of technology. Of course the cheap way to do it is a couple of old cassette recorders (which usually have microphones built in). There surely must be some on eBay or junk shops. Ditto with the cassettes...
Standard User 4M2
(knowledge is power) Wed 29-Apr-15 20:49:06
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Re: Recording a benefits assessment


[re: lelboy] [link to this post]
 
I've only seen one "statement of reasons" where a tribunal has awarded ESA on appeal. It made no reference to the previous WCA but only to it's findings on the day. Not sure that they even considered the ATOS assessment but focused their questioning from the original claim form, consultant's and GP's diagnosis/prognosis etc. A doctor and a judge presided over the appeal.

Edited by 4M2 (Wed 29-Apr-15 20:51:08)

Standard User lelboy
(committed) Wed 29-Apr-15 21:00:44
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Re: Recording a benefits assessment


[re: 4M2] [link to this post]
 
Hello, Have no idea what your observations re: "not sure if they even used the Atos report" and "I've only seen one statement....." are conveying to us. My comments have been based on attending TWO tribunal hearings with my friend - where both appeals were allowed - and my personal conversations with Atos & DWP on his behalf. If any poster chooses to not accept what I say, then so be it: no skin off my nose, as my pal won on both occasions!

Edited by lelboy (Wed 29-Apr-15 21:02:30)

Standard User 4M2
(knowledge is power) Wed 29-Apr-15 21:10:45
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Re: Recording a benefits assessment


[re: lelboy] [link to this post]
 
Did you request a "statement of reasons" for either or both of the successful appeals?
Standard User TLM
(legend) Thu 30-Apr-15 00:05:20
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Re: Recording a benefits assessment


[re: lelboy] [link to this post]
 
Well, I personally do NOT want "to be afforded the facility", since I'm not in the position of applying.

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.

I can't find any corroboration, anywhere, of your assertion that they must provide recording equipment, on request, by law. Whilst I do not think they're honest, I also don't think they're so completely stupid that they would have, on their official website, in full public view, guidance that is flagrantly contrary to the provisions of the law - by claiming that the "customer" (as they insist on calling them) must provide equipment that, in fact, they have the responsibility to provide.

If they were so unwise as to publish guidance that was legally false, I'm also sure I would not be the first person ever to have noticed, and that it would already have caused a furore. Given that it hasn't, I conclude it is correct in law, and that is why it has been allowed to stand unchallenged. They are still a business, after all, and have faced a lot of scrutiny and bad publicity. No business - even ATOS - would court more controversy by publicly misleading "customers" as to their legal rights. They might try to intimate on a one-to-one basis, behind closed doors, that the "customer" doesn't have this or that right, hoping they will not be educated enough to question - or perhaps just feel too ill to bother. But that is quite different from openly publishing misleading official guidance, which would be seized upon immediately.
Standard User TLM
(legend) Thu 30-Apr-15 00:18:35
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Re: Recording a benefits assessment


[re: 4M2] [link to this post]
 
That's just the problem - there's no "restricted movement" - in the same way that having a permanent headache doesn't cause restricted movement - and nobody but the person with the headache is aware they have it - except based on what they say.

If you tell me you have a headache, I can't prove or disprove it - neither can any doctor. I wouldn't expect it to affect your range of movement, but would expect it to impact how your day goes, including how well you are able to sustain concentration, and how easily you tire. I wouldn't expect it to affect things like whether you can pick up a pound coin from the floor or lift a carton of milk, because it's not that type of pain.

Even if it was painful enough to induce nausea, it wouldn't necessarily follow that the person couldn't walk, or pick things up. They might prefer to lie down in a darkened room, but couldn't prove it was absolutely necessary.
Standard User 4M2
(knowledge is power) Thu 30-Apr-15 01:06:40
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Re: Recording a benefits assessment


[re: TLM] [link to this post]
 
In reply to a post by TLM:
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.


https://www.gov.uk/government/uploads/system/uploads...
Standard User 4M2
(knowledge is power) Thu 30-Apr-15 01:31:45
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Re: Recording a benefits assessment


[re: TLM] [link to this post]
 
In reply to a post by TLM:
That's just the problem - there's no "restricted movement" - in the same way that having a permanent headache doesn't cause restricted movement - and nobody but the person with the headache is aware they have it - except based on what they say.


Perhaps we should ask a neurologist about the levels of potential pain that can be objectively measured - endorphin activity? Obviously external inflammation and swelling around a joint would be painful; internally a scan may detect compression of a nerve root or roots, e.g. degenerative disc disease leading to chronic back pain and agonising sciatica...

Edited by 4M2 (Thu 30-Apr-15 02:08:45)

Standard User yarwell
(sensei) Thu 30-Apr-15 09:50:00
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Re: Recording a benefits assessment


[re: TLM] [link to this post]
 
PACE set the standard for recording - http://www.dmcl.co.uk/products/one-digital-airlight-... for instance.

Making contemporaneous notes is another approach. Take time to record what is asked, said and done. In writing, if your condition were to allow it at the time. Or take a witness to record the notes.

https://www.latentexistence.me.uk/why-wont-atos-let-... may be interesting.

--

Phil

MaxDSL - goes as fast as it can and doesn't read the line checker first.

MaxDSL diagnostics
Standard User lelboy
(committed) Thu 30-Apr-15 10:04:47
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Re: Recording a benefits assessment


[re: TLM] [link to this post]
 
Last comment from me, as I feel that your sole purpose of posting appears to be provocative, given, as you say, you have a "legal background".
If that background were sound, then you'd have no reason to have posted your original question - as you would no doubt, with your experience, been able to find the definitive answer yourself.
1) "Anecdotal" A short, interesting or amusing account of a "real" incident
2) My observations come from being party to a "real" incident (2 off).
3) DWP would have terminated my pal's claim if he had refused to submit himself to Atos scrutiny - thus giving little credence to your assertion that Atos don't "have" to provide: were that to have been the case then, if they did not have to comply, they would have happily had him removed from the DWP system, as being non-compliant
4) Atos would not be the first major company to have put, in print, falsehoods - only to have to "correct" their error at a later date (read - when found out and taken to task): to think or believe otherwise is naïve at best.
I have provided what I know from personal experience to be the case, but you with your legal background choose to not believe it: that's your prerogative, but it beggars the question why you bothered posting such a question on a technical site, when you clearly know the answer to your question already!
Perhaps you could write to the Sun or Daily Mail's agony aunt column, and get a reply more suited to your "non-claiming" agenda.
Standard User lelboy
(committed) Thu 30-Apr-15 10:18:10
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Re: Recording a benefits assessment


[re: 4M2] [link to this post]
 
Hello, Not sure of the relevance of you question, but on both occasions that I accompanied my pal to the tribunal (E14), we sat before a two person team - doctor & legal entity - who reviewed evidence presented, presumably by Atos as well as his hospital paperwork: they considered the evidence and granted the appeal on two occasions - no mention was made of "statement of reasons" - and it didn't appear necessary to ask.
Cheers, Les.
Standard User 4M2
(knowledge is power) Thu 30-Apr-15 11:02:56
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Re: Recording a benefits assessment


[re: lelboy] [link to this post]
 
A statement of reasons from the tribunal can be quite interesting because it thoroughly reports on the actual hearing and the reasons behind a decision. There may well be some substantial differences of opinion between the tribunal's statement of reasons and the ATOS assessment when an appeal is won. If requested by the claimant a copy of the statement of reasons is also sent to the DWP. These statements of reasons might have contributed to the early downfall of ATOS.

Glad to hear that both of your appeals were successful smile
Standard User lelboy
(committed) Thu 30-Apr-15 11:22:13
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Re: Recording a benefits assessment


[re: 4M2] [link to this post]
 
Thanks for your reply,4M2 (don't know your name:).
Didn't ask for any further information, as the panel made some reference to the condition - cervical spondylosis - which is in a state of progressive deterioration. The second Atos guy - a nurse - indicated that the condition would be improved within 3 months, documented and drawn to the panel's attention by us (even though THEY already had the details). A medical nonsense, and yet one more flawed "assessment by Atos staff".
Did you see the undercover tv documentary on Atos - quite enlightening!
Atos are inefficient AND they lie. Not supposition, nor a fallacious anecdote - as implied by another poster - just the truth about a tawdry outfit, that's not fit for purpose. The closing down of their contract - like G4S's - speaks reams.
Cheers again, Les.
Standard User 4M2
(knowledge is power) Thu 30-Apr-15 11:44:55
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Re: Recording a benefits assessment


[re: lelboy] [link to this post]
 
Yes the whole WCA thing is crazy: a single HCP who has no access to the claimant's medical records (unless they are provided by the claimant) makes an assessment based on a computer program. The audio of this assessment could be recorded but most of the time there would only be the sound of a computer keyboard and even that recording might be inadmissible at a tribunal appeal hearing.
Standard User lelboy
(committed) Thu 30-Apr-15 12:24:51
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Re: Recording a benefits assessment


[re: 4M2] [link to this post]
 
Just so..
Of course there are plenty of fiddlers who do need a kick up the backside, but it's painful for genuine people - perhaps those with not as much nous as you or I - who get shafted. That documentary that I mentioned drew reference that even if you were in pain, even being able to use two fingers on a keyboard made you employable!
Wrong, wrong wrong! Cheers again. Les.
Standard User David_W
(fountain of knowledge) Thu 30-Apr-15 12:40:51
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Re: Recording a benefits assessment


[re: TLM] [link to this post]
 
In reply to a post by TLM:
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:
In reply to a post by TLM:
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)

Standard User 4M2
(knowledge is power) Thu 30-Apr-15 12:47:38
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Re: Recording a benefits assessment


[re: lelboy] [link to this post]
 
I bet your pal has got mountains of paperwork associated with his claim - audio recordings of the WCA's would probably have made the case almost unmanageable!
Standard User 4M2
(knowledge is power) Thu 30-Apr-15 13:03:44
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Re: Recording a benefits assessment


[re: David_W] [link to this post]
 
With regard to ESA: I hope you can help as many folks as possible into the support group, the work-related activity group is not a good place to be with the potential threat of sanctions etc.
Standard User lelboy
(committed) Thu 30-Apr-15 13:04:08
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Re: Recording a benefits assessment


[re: 4M2] [link to this post]
 
You not wrong! Three 3/4" thick folders! Right from the original claims, then Atos, then DWP refusal, then tribunal (2 off)...
You could almost be forgiven for calling it a day - but then how do you survive?
Cheers, Les.
Standard User 4M2
(knowledge is power) Thu 30-Apr-15 13:23:55
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Re: Recording a benefits assessment


[re: lelboy] [link to this post]
 
Or it could be: "I've got a bad back can not work", doctor’s sick note and a letter from DWP "You have been awarded sickness benefit". That's just 3 pieces of paper...no massively expensive bureaucratic mumbo-jumbo, audio recordings and distress to the claimant.
Standard User caffn8me
(knowledge is power) Thu 30-Apr-15 17:24:49
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Re: Recording a benefits assessment


[re: 4M2] [link to this post]
 
In reply to a post by 4M2:
In reply to a post by TLM:
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.


https://www.gov.uk/government/uploads/system/uploads...
These guidelines say;
Acceptable media types at present are standard CD and audio tapes only
It doesn't say cassette. That means you could take in two reel-to-reel or DAT recorders.

There are further problems with the guidelines. They state;
If CHDA has been unable to contact a claimant by phone and an appointment letter is issued, the claimant will need to tele phone CHDA as soon as possible to notify them of their request for a recorded assessment
So, those with a phone phobia are stuffed.

Sarah

--
If I can't drink my bowl of coffee three times daily, then in my torment, I will shrivel up like a piece of roast goat

Spiders on coffee - Badass spiders on drugs
Standard User David_W
(fountain of knowledge) Thu 30-Apr-15 20:22:18
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Re: Recording a benefits assessment


[re: 4M2] [link to this post]
 
In reply to a post by 4M2:
Or it could be: "I've got a bad back can not work", doctor’s sick note and a letter from DWP "You have been awarded sickness benefit". That's just 3 pieces of paper...no massively expensive bureaucratic mumbo-jumbo, audio recordings and distress to the claimant.
It is important to remember that both the PIP assessment and the Work Capacity Assessment (ESA assessment) are functional assessments. It isn't the diagnosis, symptoms or their severity that matters most, but what effect those symptoms have on the claimant's ability to perform the tasks laid down in the regulations for the relevant benefit.


It is relatively common for claimants to go to extraordinary lengths to provide medical information that is far more detailed than will be used. For example, it would be very rare for copies of test results, scans, X-rays and the like to be looked at.

If the claimant is sending medical evidence, the most important thing is a brief report giving key information - diagnosis (if there is one), key symptoms, current treatment, maybe a brief history of the condition and a prognosis if one is available. Any indication of how the condition affects the claimant is helpful, even if it is very high level such as "always needs to use a self-propelled wheelchair". It may not be necessary to get a special letter written - those under hospital care might find that copies of recent letters from the hospital to their GP contain all the necessary information.

If a functional report is available, such as an occupational therapy report or certain types of mental health report, that report should be sent as well, as it can avoid the need for a face to face assessment. Care plans are also useful, especially for PIP.


The claimant should use the questionnaire (ESA50 for ESA, PIP2 for PIP) to give details of how their condition affects their ability to carry out the various activities listed - their so-called functional impairment. Nothing should be assumed, as you can have two people with the same condition causing the same symptoms at similar severity, but the functional effects can be very different. Take two bilateral (both leg) below the knee amputees - one may have few problems getting about on prosthetic legs, the other may have ongoing stump problems that mean they are unable to wear prosthetics.

A common way of losing points is failure to explain the functional impairments fully.


"I've got a bad back and I can't work" together with a sick note doesn't get you very far. It establishes that your GP also believes you have a bad back and is happy to certify that you are unfit for work for a given period. The sick note will, assuming the other requirements are met, entitle you to ESA at the assessment rate for the duration of the sick note whilst you are waiting for assessment.

When the Work Capacity Assessment takes place, it is only concerned with the effects of the claimant's condition on their ability to perform the ESA activities, such as mobilising (walking or self-propelling a manual wheelchair), grasping and lifting objects, and remaining sufficiently continent not to need a change of clothes. It also decides whether certain special conditions entitling the claimant to ESA are met (such as Regulation 29 and Regulation 35, which I don't propose to explain here).

Standard User 4M2
(knowledge is power) Thu 30-Apr-15 21:34:23
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Re: Recording a benefits assessment


[re: David_W] [link to this post]
 
OK - the DM (the DWP Decision Maker) basically rubber stamps the assessment made by the HCP and awards or does not award points accordingly. Then if the claimant disagrees with the outcome they can ask for a mandatory reconsideration and if that is not satisfactory then they can appeal to the LTT (Lower Tier Tribunal.) The WCA involves a physical assessment but the Tribunal hearing is primarily verbal, although there may be questions about how the appellant got to the hearing, how far did they walk and are they comfortable sitting etc.

Now if 40% of those who decide to appeal win their appeals is it because the tribunals have different criteria to those of the LiMA based WCA?
Standard User David_W
(fountain of knowledge) Thu 30-Apr-15 22:33:39
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Re: Recording a benefits assessment


[re: 4M2] [link to this post]
 
In reply to a post by 4M2:
OK - the DM (the DWP Decision Maker) basically rubber stamps the assessment made by the HCP and awards or does not award points accordingly. Then if the claimant disagrees with the outcome they can ask for a mandatory reconsideration and if that is not satisfactory then they can appeal to the LTT (Lower Tier Tribunal.) The WCA involves a physical assessment but the Tribunal hearing is primarily verbal, although there may be questions about how the appellant got to the hearing, how far did they walk and are they comfortable sitting etc.

Now if 40% of those who decide to appeal win their appeals is it because the tribunals have different criteria to those of the LiMA based WCA?
It's First-tier Tribunal (FtT), not Lower Tier Tribunal. The criteria are the same at each stage - but the way the decision is reached is different, which may explain the differing outcomes.


The Decision Maker has the assessment report in front of them, plus the information supplied by the claimant.

Decision makers can and do depart from the assessment report at times, though this is relatively uncommon and typically happens when a decision maker recognises that the assessor has incorrectly applied the law to their findings of fact. It is difficult for the decision maker making the initial decision to depart from the findings of fact made by the assessor, as they have not met the claimant and are not medically qualified.

On medical matters, the decision maker has to trust the judgment of the assessment provider, though they do have the power to put supplementary questions to the assessment provider if they are not happy with some aspect of the report.

Decision makers have the ability to contact the claimant if they want more information, but this power is often not used. Claimants don't always respond very well to phone calls from the DM.


At reconsideration, the decision maker must weigh any additional submission from the claimant against the evidence already in the file. I have had decisions relating to me overturned at reconsideration by inviting the decision maker to prefer my point of view over the assessment report. I did this by pointing out the coherency of my reconsideration arguments with the entirely of my original submission and the medical evidence I had supplied. However, this sort of thing is not easy to do, especially as the small time window available for reconsideration together with the overload at many advice providers means many claimants have no source of good quality advice or support for reconsideration.

Some claimants ask for reconsideration to take place without making a further submission, either because they are convinced that an obvious error has been made that will be corrected, or because they see no reasonable chance of a favourable reconsideration and want the paperwork to allow appeal to the FtT as quickly as possible.


The FtT is in a different and more privileged position. The panel for an ESA tribunal is a tribunal judge (a barrister or solicitor), sitting with a doctor. This means that the decision is made with expertise in the law and in medicine. A PIP tribunal panel has a third member, who is a disabled person. Sometimes this disabled person has some sort of medical, legal or advice provider background, though this is not compulsory.

By the time a case reaches tribunal, the claimant should have had the chance to read and reflect on the contents of the assessment report before making their submission. Theoretically it is possible for the claimant to obtain the assessment report before requesting reconsideration, but in practice claimants don't always understand they can request the assessment report at that stage and, if the report is requested, DWP don't always send it before the deadline for an in-time reconsideration submission expires. The claimant can wait for the assessment report and risk submitting out of time, but this leaves open the possibility of the reconsideration request being denied as late without good reason.

The delay whilst reconsideration takes place gives greater opportunity for the claimant to obtain advice and/or additional evidence.

The claimant has the chance to request an oral hearing at the FtT, which is strongly recommended, as this gives the panel the chance to meet the claimant and question them directly. Statistics show that the claimant is more likely to succeed at an oral than a paper hearing.


Overall, the success rate for ESA tribunals is far too high, as it indicates far too many decisions are in error. The withdrawal of almost all legal aid funding for welfare rights, almost all of which went to advice organisations like CAB, and the deep cuts to council discretionary spending means that many advice services have had to cut back on the support they can offer at just the time that the disability benefit reforms began to bite hardest (with reassessments from legacy incapacity benefits to ESA taking place in earnest and PIP being introduced).

Standard User 4M2
(knowledge is power) Thu 30-Apr-15 22:54:48
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Re: Recording a benefits assessment


[re: David_W] [link to this post]
 
In reply to a post by David_W:
It's First-tier Tribunal (FtT), not Lower Tier Tribunal.


Sorry inadvertently called it "lower" in the context of thinking about Upper Tribunals also smile

Edit: you may be interested to hear of a case where additional evidence of incapacity was sent to the FtT prior to the hearing and they sent it to the DM who thought it didn't change the decision. This unchanged decision was returned to the FtT who in turn passed it on to the appellant. The hearing will still be as scheduled though.

Edited by 4M2 (Thu 30-Apr-15 23:16:28)

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