19 June 2009
A claimant who believed that he had been misrepresented in the past by the DWP and who attempted to openly record his incapacity medical had his benefit stopped as a result.
When the claimant insisted on taping his incapacity benefit medical with a hand-held recorder the Atos doctor refused to proceed with the examination. The doctor explained that the DWP’s procedure is that the claimant must provide a qualified sound engineer and a recorder able to make two recordings simultaneously. The claimant refused to turn off the recorder and the medical was not carried out.
The claimant’s incapacity benefit award was then brought to an end on the grounds that, without good cause, he had failed to submit himself to a medical examination. The claimant lost his appeal against the decision, with the tribunal finding that ‘The examination could not be conducted under the appellant’s conditions’ which the tribunal considered were ‘unacceptable’.
The claimant then appealed to the upper tribunal, where judge Wikeley in CIB/3117/2008 allowed the claimant’s appeal . . . up to a point.
He held that the DWP must write to the claimant setting out the DWP’s policy on tape-recording and invite the claimant to a new medical. If the claimant still refuses to be examined unless he can record the medical with a hand-held recorder then it will be open to the DWP to again halt the medical and the claimant again to appeal.
Judge Wikeley declined to comment on whether the DWP’s rules on taping a medical are reasonable. He did note that, however, that they are stricter than the rules the department imposes on itself when recording an interview under caution.
So, as matters stand, if you try to openly record your medical, the examination will be stopped and, quite possibly, so will your benefit. You can appeal against the decision and, if you were not provided with written information about the DWP’s rules on tape-recording and given time to consider your position then you may win your appeal. But you still won’t be allowed to record your medical next time without an extremely expensive arrangement with a sound engineer.
It is, however, not illegal to secretly tape your medical provided the recording is for your own use in order to help you remember what took place. If you subsequently appeal against the decision that the medical was about, and part of your case is that you did not say what the medical report states you did say, you could provide a transcript of relevant parts of the tape to a tribunal.
It would be up to a tribunal to decide whether to admit this evidence, whether to ask for a copy of the recording and whether to consider such a recording as reliable evidence.
We are aware that making secret recordings is behaviour that many people find morally questionable. But as long as so many medical reports are shown to be unreliable at appeal, and as long as the DWP impose such impossible conditions on open recording, some claimants will undoubtedly turn to secret recording as their only defence.
Have you recorded a medical examination? If so, we’d be interested to hear from you – in complete confidence. Email us and tell us what happened at:
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You can download a copy of CIB/3117/2008 from this link
