Help with esa medical

[whitecraig_wizard]

Dear all hello, this is my first posting so be kind/gentle. My wife has progressive MS and is cognetively impared as well as severe physical disabilities, I am now the continuing and welfare power of attorney (Scottish). She will have an esa medical at some point so having read comments and thoughts here; I decided to try and be ahead of the game.

 

I would like anyones bright ideas to my comments.

 

I wish to overtly record her interview as due to her cognetive loss she is unable to recall what may/may not be discussed, for this I intend to rely on the DDA (ok Equalities act).

 

Now the difficult bit, I legally am now her so to speak, if asked a question I will have to discuss it with her, prior to responding, ( you need to remember that she is no longer legally competent to answer) but this means that ATOS are listening and possibly recording everything I/we say prior to formally responding. As I see it I can either ask for them to leave the room whilst we discuss, a reasonable adjustment or use ECHR article 8 for the right to privacy. I have sought guidance from EhrC who can see no problems with either of these choices.

 

However if they are incorrect I would appreciate any advice. I know I'm bitter and twisted but has nobody considered/used this angle before?

 

 

If I've posted here by mistake sorry

[maroondevo52]

Hello and Welcome,

 

I've started a new thread for you.

 

Regards.

 

Scott.

[honeybee13]

Hello there, welcome to the forum.

 

Leemack has a great 'sticky' about Atos 'medicals' [we're cynical too] that would be worth a read.

 

As for recording, I would try a search on nolegion, a cagger who takes a great interest in this and commented on the Benefits forum recently.

 

If you're stuck on stickies [if you see what I mean ] or the forum search tool, please post again and we'll help.

 

My best to you and your OH.

 

HB

[whitecraig_wizard]

Dear Honeybee,

 

I have indeed followed their thoughts and comments on this matter, and very informative it has been too. I would appreciate any comments constructive or otherwise on my idea.

 

As ATOS is carrying out the interview, medical is IMHO a misnomer, on behalf of the DWP then firstly the Equalities Act requires them to make reasonable adjustments, ie allowing guide dogs in the building.

 

Further, the Disability Equality Duty is inforce as they acting on behalf of a public body, so they must act positively towards disabled people, from what I have read and heard this would be not only a major culture shock but an novel concept !

 

 

I am curious if anyone has attempted to use these arguments against ATOS in the protection of their rights ?

 

In respect of ECHR article 8, We all have the right to Privacy and Family life; I understood that for those who are vunerable it has a lower threshold, am I correct? How can anyone record in any form what we discuss between us, it would breach her human rights. I wonder as her Power of Attorney, would it also be priviliged. The Equalities Commission are of the opinion that noting any discussion between us would definetely breach article 8.

 

Whilst accepting my own circumstances are somewhat unusual, I cannot be the only Power of Attorney (I am unsure what you call them down south), who has attended an interview. They are quite common with LD, it should be a fairly standard procedure with a policy already in place !

Sadly, it is not well known within PD, I find I still have to explain to her medical providers, it does focus their mind when I explain that I am calling the police as she has just been assualted; I am the only one who can now give informed consent.

 

Like all POA, I have a legal duty in addition to whatever other relationship I have; I am no longer her husband or advocating on her behalf.

 

Interestingly I did an online survey for how many points my wife would gain 284, or according to ATOS;

 

NORWAY = nil point.

 

 

Hopefully someone will either see the flaws in my bright idea or add to it and make it workable !

 

 

 

Just because your paranoid doesn't mean they're not out to get you.

[eaglehaslanded]

From what I understood, ATOS have to allow someone with you if you are "a danger to yourself".

In regards to speaking for someone, well, if it gets to tribunal, it depends who the people are on the day, I have something similar to your wife, I have scanning speech, and suffer cognitive difficulties, and struggled understanding some of their questions. My mum came with me and was my "representative". Sometimes tribunal people let you cut in and say stuff for you, other times they do not, my mum was told to hold all speech until the end, where she was allowed to have her say, and go over some of the questions they had, reiterating in better english.

To be honest, most ATOS questions were yes or no, and I would suggest searching "ATOS interviews" in google, where some people have posted the questions and what they actually mean.

As for human rights, I think one gives them up when one is on benefits. I have had no privacy at all, my life has been completely taken over by the benefit system. The things we do for the care we need.

I totally sympathise with your situation, my mum was deeply upset with the interrogation they gave me.

They will make reasonable adjustments providing on the pre ATOS form, you mention it in the relevant box on the form, if you do not provide this information i.e my wife needs someone with her 24/7 because... then they are not acting unlawfully.

From what I understand you can ask for a home visit, its not mentioned very well, but it is possible, but is extremely complicated i.e if you are completely bed bound, you are not expected to go to the ATOS centre.

[leemack]

I think the flaw maybe in thinking that you need the privacy from the interviewer in order to discuss the question - I think this would go against you. In my experience, the more the person questionning sees the problems your wife has interacting, answering and understanding the questions, the more likely they are to understand her condition. Unless of course your wife is likely to answer that she's fine and has no problems to every single question - and I've seen this before with people with learning difficulties. (how do you manage with money? I manage fine, I buy coffee and magazines - at this point I interject and put coins on the table - how much money is this? Oh, I don't know.) In this case, its best to explain that the other person cannot answer the questions appropriately, and that you will need to answer for her. The reasons for this would need to be written on the ESA50.

 

I can't see anything to be gained from having the interviewer leave the room after each question.

 

If I've not understood what you're saying, please let me know.

[whitecraig_wizard]

Dear Leemack,

 

Firstly, you are correct she will in all probability answer fine to everything, she's just being polite.

 

However, my circumstances are somewhat different, she has been assesssed as no longer being mentally capable of giving informed consent and accordingly the Power of Attorney is now inforce. Legally it is of no relevance what she says as she cannot now, as far as the Office of the Public Guardian is concerned, instruct on anything as she is no longer competent.

 

No other medical staff are allowed to proceed with any treatment or discussion without my prior consent and approval, so why ATOS !

 

I had given thought to having a home assessment, does anyone have any experience of how these are carried out?

 

As for the comments of Eaglehaslanded, it must have been horrible for you and your mother, I hope it works out ok.

 

 

 

 

We all know that there is the ATOS way of doing things

[leemack]

I understand about the legal power of attorney, and that you will need to be there to answer the questions for her, and that you may want to check things with her before giving a definitive answer - what I don't understand is why you're worried about the discussion between you and your wife being overheard? I'm not being difficult, just trying to understand so I can give the best possible advice. What is it you're worried about happening?

 

Yes, you can arrange a home visit. You would need to send atos a letter from your wife's doctor confirming she cannot attend an examination centre and requires a home visit. Considering that the centres are often a good distance away, with limited parking, and involve prolonged waiting times, I would advise anyone with severe disabilities to go for a home visit.

 

The best defence with atos is a good offence. They're just ticking boxes, and you need to make sure that the information you provide for them ticks the right boxes to score the points. You control the dialogue, don't be pushed into yes/no answers and give the information you want to give. And as you've already said, record the proceedings to limit any 'inaccuracies'.

 

As you can see, the need to approach this 'medical' like this strongly disadvantages anyone with cognitive problems or mental health issues, unless they have a very strong advocate in the room. If you haven't already, give the sticky on medicals a read. I go into how to approach the medical in a bit more detail. If you have any questions feel free to post or PM.