I have just received an IB50, and I'm sure that, after filling it in carefully, I will be sent for an ATOS medical and won't recieve any points.

I tend to think in worst-case-scenarios.

Can I record the medical, save it as a wav file and type up my own transcript? This wouldn't be difficult for me, but legally, I mean.

Hello and welcome to the forum. This has cropped up many times and I think the short answer is 'Yes you can'. I suggest you do a search of the forum and read up on the various threads. I take it you have the technology to do this?

HB

Thanks. Last time I was sent for a Personal Capability Assessment 2 years ago I was in a treatment centrre for alcoholism and my mother had just died. They gave me zero points and I had to get the local M.P. involved, saying that I shouldn't have to go for a medical.

This time round I no longer drink but have a raft of mental health issues - anxiety, depression and am bi-polar.

I'm so cynical of Atos.

If you record the "medical" you will have to do this without the examiner's (HCP's) knowledge, otherwise they will stop the examination and "inform" the DWP that you have "failed to comply", resulting in your ESA being refused in much the same way as if you had failed to attend the exam.

The rules do allow you to take notes even if the HCP says otherwise, this can be backed -up by evidence: http://www.whatdotheyknow.com/request/control_of_atos_healthcare_a_con_2#incoming-99439 see: FoI 1427 12.07.10.doc

The "A'TOSsers" only allow audio recording by pre-arrangement and on condition that the equipment used is a double tape deck of the kind the police use to interview suspects under caution, and, that the equipment is operated by a qualified recording engineer! You couldn't make it up!!! as if a benefits claimant can afford all this rigmarole!

Thanks, I don't intend to tell them - I can record it on an mp3 player without their noticing.

I will save it and type up the transcript... Later on, when I'm further in the appeals process I will casually mention that I have a transcript and that I thought everybody recorded their medical these days.

Thanks, I don't intend to tell them - I can record it on an mp3 player without their noticing. I will save it and type up the transcript... Later on, when I'm further in the appeals process I will casually mention that I have a transcript and that I thought everybody recorded their medical these days.

9Dream, your commendably straightforward approach is great and it saves you getting bogged down in all sorts of detailed quibbles about the finer points of interpretation the rules. If you need to use your recording then you may later need look into those details.

From a practical point of view, remember that if your recorder is hidden in your clothing then you will record rustling noises when you are being asked to bend over, etc during the medical exam. To avoid this you may prefer to put your recorder in a bag although this means the audio quality can suffer if your bag has to be put on the floor.

One solution is to place the recorder inside an envelope and put that on the table. (If you can.) Cover any LEDs and indicator lights with black tape. If the audio recording is really important to you then you might want to consider having another recorder hidden somewhere else.

Just my tuppence worth.

My Turn

There have been recent developments abaout this. Someone mounted a challenge and were given the go ahead. Full details on the benefits and work site - google it and then search under recording medicals or such.

Oh, as for the idea of recording and casually mentioning it at the tribunal, unfortunately that won't work. I can tell you that legally the tribunal will deem any material recorded without consent of the other party to be inadmissible i.e. you won't be able to use it in a legal forum, which includes a tribunal for these purposes. They've got you all ways, I'm afraid. But see my other post about arranging it legally - plus info on benefits and work site.

Even if there hasn’t, I would be glad to learn of any (authoritative) accounts of how any such recordings have been treated in lower tribunals…especially of course first-tier tribunals considering ‘medicals'.

The tribunal has a duty to admit evidence if to do so would be in the interests of justice. They cannot rule an audio recording inadmissible solely on the grounds of it being made covertly.

I'm afraid I don't agree Erika and I am a lawyer. There is no duty to admit evidence, only a discretion. There may have been cases where a tribunal admitted such evidence on the special facts of the case. In theory any evidence may be admissible but you cannot rely on this. The old common law rule is now open to challenge under ec law etc.

PS Arnwell was an employment claim, the ratio of the decision applied only to recordings made in connection with the public element of the governors' hearing (not private deliberations) and in so far as they were acting in their public capacity. The same would not necessarily apply to a third party HCP acting for Atos. In Arnwell there was also no contractual exclusion of the right to record covertly. Is the contractual position (expressly in terms of whatever Atos has made known, or even impliedly, the same in the case of Atos medicals?) I am not saying the "interests of justice" rule could never be used, merely that the issue is far too complex to say definitively that you can record covertly and expect to use it or to escape the consequences of potential breaches of privacy against third parties. So it would be unwise to jump to conclusions about what you are going to be able to prove and act on that basis. Get expert advice.

I stand by my earlier statement. It is the duty of the tribunal to consider admissibility, and it is the duty of the tribunal to allow the admission of evidence if that evidence would be in the interests of natural justice, with the exception of any evidence which is deemed inadmissible automatically by law - I am not aware of any legal rule which specifies covert recordings are in themselves inadmissible, as your post appears to suggest below. The tribunal likewise has a duty to exclude evidence where that evidence would prejudice the interests of justice. It is the duty of the tribunal to consider whether a covert recording is a) relevant and b) admissible. They cannot just dismiss it as inadmissible simply because it is covert. I would put it to you that if you are a lawyer, you will be able to provide a link to legislation which supports that covert recordings are all automatically inadmissible in themselves.

Oh, as for the idea of recording and casually mentioning it at the tribunal, unfortunately that won't work. I can tell you that legally the tribunal will deem any material recorded without consent of the other party to be inadmissible i.e. you won't be able to use it in a legal forum, which includes a tribunal for these purposes. They've got you all ways, I'm afraid. But see my other post about arranging it legally - plus info on benefits and work site.

There is no question that a person cannot rely on a tribunal admitting their covert recording as evidence; the decision to admit or exclude is that of the tribunal but there is no such legal rule in existance that I am aware of which automatically excludes covert recordings.

Erika, I edited my mail as I agree my initial post was inexact. However, I did not state that there is a rule of law automatically to exclude evidence as admissible and suggest you read the post more carefully. In practice, to say there is no automatic rule of law excluding the admissibility of covertly obtained evidence does not in fact say much. There is a duty to consider what is in the interests of justice but there is no duty to admit evidence, merely a discretion. I distinguished between your comment that there was a duty and a discretion on a court to admit evidence. To rely on a court exercising its discretion in one's favour is, in my experience, fraught with difficulties, as so much depends on the facts. The courts may very well not show the same readiness to admit covertly obtained evidence in these cases as to admit such evidence obtained by the police on public interest grounds in criminal cases. In my second post I pointed to the problems with generalizing along the lines of your brief comment. It cannot be assumed that the approach in an employment tribunal (which is notoriously sui generis) will apply to other forums. Moreover, there is also the very difficult point about the status of the HCP involved in the medical process, who cannot be wholly equated with the company Atos for purposes of e.g. human rights law, and the contractual questions. There are also issues of credibility which can damage a party's case. I would be delighted if people in such unequal situations could safely even the score if necessary with covert evidence. However, it is not that simple. In my view the correct route is to obtain consent or press for a review of the DWP/Atos's current policy until such time as the position is absolutely clear. Even if such evidence were admitted, it may rebound on the person seeking to use it, even resulting in civil lawsuits.

The DWP policy on recording needs to be reviewed.

The HCP is making, or should be, an accurate record in text form on a computer, via ATOS software, for presentation to the Decision Maker.

An audio recording could easily be made on the same machine, at the request of the 'customer', with a CD copy supplied to them on completion of the WCA.

Such evidence would offer protection to both sides in the event of a dispute and no doubt reduce the incidence of some of the horror stories reported.

Digital comparison methods will ensure integrity against tampering and security encryption can protect recordings, infinitely better than antiquated tapes.

Erika wins.