News

1 October 2010

After 7 months of dogged determination, a Benefits and Work member has persuaded the DWP to not only record his employment and support allowance (ESA) medical for him, but also to provide the recording equipment and a staff member to operate it at their own expense. Until now, the DWP have insisted that claimants wishing to record a medical provide a professional sound engineer and a properly calibrated tape machine that records two copies of the examination at the same time, paid for out of their own pocket.

Our member, who posts in our forum under the name tb1uk, had his original personal capability assessment for incapacity benefit in July 2009. However, although our member says he gave details of depression and medical problems with his spine, knees and feet to the examining doctor, he says his medical report listed his only condition as ‘stress’.

As a result of this, our member was found capable of work and his appeal was not upheld. 

He subsequently put in a claim for employment and support allowance.  However, he also sent a copy of a Benefits and Work standard letter informing the DWP that he would be recording his work capability assessment (WCA) medical.

There followed seven months of correspondence during which time our member has received no payments of incapacity benefit.  At first Atos and the DWP were adamant that no recording would be permitted.  But our member continued with a campaign of emails, letters and phone calls that even included the chief executive of Jobcentre Plus and a judge.  He repeatedly drew the DWP’s attention to commissioner’s decision CIB/3117/2008.  In this case the Upper Tribunal allowed an appeal by a claimant who refused to attend a medical unless he was allowed to record it.

The judge in the case did not say that claimants had a right to record their medical – he gave no ruling on that issue, leaving it to a future tribunal to decide – but he did point out that the DWP’s rules for claimants are stricter than those the department imposes on itself when recording an interview under caution.  (For more on the conditions DWP/Atos impose on claimants, see: Recording medicals – excellent strategy from a member)

Last week our member received a letter from the Jobcentre Plus Business Strategy and Planning Director on behalf of the Chief Executive, Darra Singh.  The author stated specifically that they were “writing on behalf of Mr Singh as one of the Directors of Jobcentre Plus” and went on to say:

“Thank you for drawing our attention to Upper Tribunal case CIB/3117/2008. We have now reviewed their findings and our policies and discussed possible arrangements with Atos Healthcare.  We have found a method of recording the WCA that will meet the safeguards outlined by the Upper Tribunal and hopefully meet your requirements.”

Our member was told to expect separate letters from Atos and the DWP explaining the arrangements for the WCA.

Our member was somewhat astonished when the letter from Atos arrived to discover that it made no mention of recording medicals. Instead, it explained that, following a review of his case, it had been decided that the doctor who was to carry out the WCA would do so anonymously and that our member would be accompanied at the medical centre and throughout his medical by a security guard or a police officer.

The letter appeared to be a standard wording of the type issued to what the DWP refer to as a PVP – a Potentially Violent Person. 

Our member has told Benefits and Work that he does recall that in a heated phone conversation with Atos he threatened to do violence to the doctor that had carried out his PCA if he ever met him again.  The threat was not a realistic one:  performing it successfully would be physically impossible for anyone short of the Incredible Hulk.  Our member was visited by the police following this threat but no further action was taken.

Benefits and Work wishes to make it clear that it does not condone violence or threats of violence against anyone. It seems clear, however, that the threat in no way furthered our member’s aim to get his medical recorded and the security presence and the recording of the medical are two entirely separate issues.

Finally, a letter from the local Benefits Delivery Centre arrived.  The arrangement it offered is one we have never encountered before:

“In response to your request to have your assessment recorded we have arranged with colleagues in Atos Healthcare to use standard DWP audio dual recording equipment.  A staff member from DWP will operate this recording equipment throughout the assessment, which you can take home with you on the day.  You will also be able to bring a friend or carer with you to the assessment.

“Thank you for giving us sight of Commissioner’s Decision CIB/3117/2008 as part of your request to have the assessment recorded.  We have considered this fully and believe the above arrangement fits with the Commissioners Decision.  Please note though, that there is no agreement for any recording to take place other than as described above.  Any attempts by you or a friend or carer to record the assessment in any other manner will result in the assessment being terminated.”

Given that this arrangement has been entered into with the knowledge of the chief executive of the DWP  ‘in order to meet the safeguards outlined by the Upper Tribunal’ Benefits and Work believes that it will now be very hard for the DWP to make a reasonable case for insisting that other claimants must bring their own recording equipment and a sound engineer with them.

We have created a standard letter (see below) which members may wish to use if they want to have their medical recorded.  Clearly we cannot guarantee its success – the cost to the DWP of providing a staff member to operate tape equipment is likely rapidly to prove prohibitive.  And, as always, we must warn that refusal to attend a medical or attempting to record it without permission could result in your being refused benefits.

Finally, we are sure that our members will join us in offering sincere congratulations to tb1uk for his efforts not only to get fair treatment for himself but also, by sharing this information, for thousands of other claimants too.

STANDARD LETTER
Dear Sir/Ms,

I wish to have my medical assessment recorded in order that I have an accurate record of what was said for my own personal use.

I understand that in a private communication to a claimant wishing to record their medical dated 23/09/10, the Jobcentre Plus Business Strategy and Planning Director “writing on behalf of Mr Singh as one of the Directors of Jobcentre Plus” wrote the following::

“Thank you for drawing our attention to Upper Tribunal case CIB/3117/2008. We have now reviewed their findings and our policies and discussed possible arrangements with Atos Healthcare.  We have found a method of recording the WCA that will meet the safeguards outlined by the Upper Tribunal and hopefully meet your requirements.”

It transpired that the method in question was for a staff member from DWP to use standard DWP audio dual recording equipment to record the assessment and give the claimant a tape to take home on the day.

This method would also meet my requirements and I would be most grateful if you could confirm that the same facility will be made available for me at my medical assessment.

Yours faithfully,