My overall Benefits journey from 2013 to date - and on going still!!

[Nystagmite]

If you're on income support and receive the disability premium, you should get it. But IB by itself isn't a qualifying benefit.

[Guest]

Ok thanks again.

[Guest]

I emailed my MP about the situation with WCA and the confusion about claiming either for mental OR physical illness, detailing how I suffer with both and am mortified that BOTH illnesses may not be considered.

 

I gave a brief outline of my experience of Atos and the suicidal state I was in because of an assessment carried out by a person not qualified to judge my mental health, whom reported nothing of what I said or showed them and found me fit for work. After almost 18monts of waiting I won my tribunal.

 

I have been spat at in the street, by so called normal folk, told that I look ok and am one of millions of scroungers, and that I feel the govt are bullying sick and disabled people and rallying the tax payers help by the methods they are using to asses. My daughter part time cares for me, I have never applied for DLA or her for carers allowance as I would not put myself through the stress of the process.

 

 

She replied today...

 

I am very concerned about the problem that you have drawn to my attention. I will make equiries with the appropriate Minister and will contact you again as soon as I have further information.

[Guest]

as I understand it, if I want to record for my own personal use, then I can, and my take on it is that if its to use to back up what I did or didn't say then thats personal use. whatever the situation around that, I will remind them if needed that it is my legal right to have a recorded assessment.......end of.......

[Invalidation]

as I understand it, if I want to record for my own personal use, then I can, and my take on it is that if its to use to back up what I did or didn't say then thats personal use. whatever the situation around that, I will remind them if needed that it is my legal right to have a recorded assessment.......end of.......

 

Yes you can record it, but cant record what the assessor states without their permission.

YOU have a legal right to record your voice THEY have a legal right to refuse to be recorded.

[SWLABR9]

Can you substantiate that statement please?

[Crazy Diamond]

Yes you can record it, but cant record what the assessor states without their permission.

YOU have a legal right to record your voice THEY have a legal right to refuse to be recorded.

 

No quite.

 

You can record it, and if you seek permission then the assessor can refuse to be recorded. If you don't tell them, on the other hand, they can't get it suppressed on the grounds "they didn't know".

[Invalidation]

Can you substantiate that statement please?

 

With pleasure.

YOU have the right to record your assessment. Its your legal right.

However

Its also anyone else's legal right NOT to be recorded.

Right's swing both ways. Therefore if an assessor does not give permission to be recorded they can simply say so and leave.

Though technically they cant state you refused the assessment, they probably will and you'll have to fight it.

 

Everyone has rights, like it or not. Simply because an assessor is working for Atos or DWP, that fact doesnt negate their rights.

 

Yes you can attempt to record it covertly, But I would suspect many many claimants simply dont have the knowledge or mental strength to do it.

 

I covered both bases on my ESA50 form. I stated I wanted either a Home assessment or a Recorded Assessment at a MEC and would accept either one or the other. If they could not offer a Recorded assessment then I would indeed record the assessment myself and they should be sure to provide an assessor who would agree to being recorded. I made it abundantly clear that I did not trust any ATOS employee to report the assessment correctly and if they objected to a recorded assessment then they would have to justify what they had to hide by not providing it. I also made it quite clear that if they demanded a MEC assessment and I hurt or injured myself on the way then I would be suing them for a Breach of Duty of Care.

If my assessment is at home I have several means of covertly Video and sound recording the assessment.

Edited February 14, 2013 by Invalidation

[nolegion]

I would like to suggest that in analysing and discussing the very important principles and practical issues in this matter, contributors should always be careful to distinguish between POLICY and LAW.

 

It is the DWP's current POLICY to make 'self-recording' as difficult as possible for claimants. And that policy seems certainly to include purportedly conferring on any 'hcp' an entitlement to refuse to conduct a recorded WCA.

 

For several years, the 'ESA\WCA Handbook' (which DWP\Atos minions treat as their ESA 'bible') used to say this expressly. However, the section dealing with claimants using their own equipment to audio-record was removed last July, and, so far, FoI enquirers have found it nigh impossible to extract a full and precise statement of current policy from the DWPconcerning claimants who wish to record. Nevertheless, in several of the responses I have seen, the DWP continues to assert that an 'hcp' has the right not to'consent'.

 

But that is all 'policy', NOT law.

 

Under English law (including the Covention-based 'human rights' imported into it) there is NO general or generic 'legal right' not to have one's voice recorded. There is simply no legal authority for such a proposition.

 

In specific circumstances, specific people may be able to assert a legal restriction on someone else's wish to audio-record; but in all such cases those people must be able to identify the precise law or laws on which they base their assertion(s), such as: copyright legislation, breach of express or implied confidentiality obligations, or contravention of the Data Protection Act 1998 (DPA).

 

The DWP tried to do this in the case of WCAs and FAILED. The best it could come up with was to try to misrepresent the effect of certain 'notification' requirements under the DPA. However, it gave that up last year,and has admitted that claimants are 'within their rights' to audio-record their dealings with the DWP. Covert recording of a WCA by a claimant is legal. It does not breach any supposed right of an hcp not to have their voice recorded.

 

I need also to note that not all 'rights' 'swing both ways'; far from it, and the recording of WCAs is one very good illustration of this. The principal reason why a claimant does NOT breach the DPA if they covertly record a WCA is the set of exemptions for personal purposes contained in section 36 of that Act. Those exemptions could NOT be claimed by Atos or an'hcp' if THEY audio-recorded your WCA covertly, because the section 36 exemptions do not extend to businesses, organisations or government departments, and they would most certainly fall foul of the DPA's principles and prohibitions if they tried that on.

 

The real question here, I think, is: is the DWP's current POLICY as regards overt recording lawfully imposed on claimants?

 

I, with others, would say that it is NOT lawfully imposed in its current form, but that should be for another post, because this one is more than long enough already.

 

(I was asked to present a short paper for an off-line medico-legal forum a few years ago, concerning patients who wished to audio-record how their doctors treated them. Basically, the law has not changed significantly for quite a while on this, and the same principles apply. If anyone can stomach yet more lawyerese as regards the legal background, Crazy-D was good enough to provide a link at post # 875, this thread.)

[Invalidation]

Though an assessor is an employee of ATOS that isnt going to negate their own decision not to be recorded. Now whether you call it a right or not. Any person, Assessor or pleb can, when asked, simply state " I do not wish to have my voice recorded" and walk away. That is their prerogative, no matter what you call it. You also have to include the fact that you are on private property (OK its technically public but you know what I mean) and on private property if the owners rules are that recording is not allowed then that's also another valid point.

In respect to an assessor walking away, they will be backed up by ATOS. Its their regulations and their ball.

As I clearly stated you can object and dispute the facts and you should eventually win, but as I also stated its no good telling everyone they can do this and that and scream and stamp their feet as they may simply not have the mental or physical fortitude to stand up to people like ATOS and the old adage is true, " A little knowledge is a dangerous thing"

 

I am in no way supporting ATOS or their actions simply pointing out as I previously stated.

We dont have any legal "Right" to record on private property, consequently the other party may not have any Legal "right" not to be recorded, but can simply walk away, leaving the claimant back in square 1.

Its like Video recording, perfectly legal out in a public place but not permissable in most Private properties without permission, and theres the moot point in all of this.

Permission.

And once again I state that if people have the equipment and fortitude then by all means covertly record the assessment. But dont come-a-running crying if you get rumbled and the assessment is stopped and you have to wait months for another assessment.

[Guest]

well I will be exercising my right to a recorded assessment if called for one. interesting to read what you have to say Invalidation, which clearly wasn't how I had understood it. am wondering if then that now there is a right for assesments to be recorded by atos whether they have less assessors ..or any who don't want the work on those terms.

[**Margaret**]

:Hi nolegion:

 

Thanx so much for your clearly written clarification of the issues in #1027.

 

After;

 

'Do you know how many points are needed for the support group?'

 

The next phrase guaranteed to drive me to distraction is;

 

'Atos've told me it's illegal/not allowed.'

 

 

 

Going to be so helpful to have your clarification to refer to. Explains it all far more clearly than I've ever managed to.

 

Thanx again, Margaret.

[Guest]

:???:am more confused than ever........

[Guest]

I can ...I cant......maybe I can

[Invalidation]

I can ...I cant......maybe I can

 

Dont Panic ! Simply continue requesting a recorded assessment.

Its been pointed out several times that ATOS cant really refuse, though they will try.

[Guest]

oh I would always insist on it if its a legal right, no panic here, I cant see there being a problem as such, am just wondering how many of the assessors are happy with it, and whether there is a shortage of those prepared to be recorded, and for what reason any of them would have for not being recorded if they indeed had nothing to hide and were doing their job properly.

 

For me due to the anxiety part of one of my illnesses and the short term memory problem of the other, a recording is the only way I would actually know what had gone on, even the next day, without reminding I wouldn't recall. I am assuming a recording copy is given to the claimant before leaving the assessment. Cant see any issue with also doing own recording, as have seen some on here say they did this, if its being recorded anyway.

 

I have seen on here somewhere that they use cctv in the assessment centres, as a lot of other places these days, and is usually a security reasoning behind it, so if they are happy for these cameras in waiting rooms, they are not camera shy, they only seem guarded about their methods of assessment and what they are told or shown by the claimant.

 

Wondering if the HCP who don't want to be recorded therefore don't do that particular assessment, we may see them at the JC.

[Invalidation]

When I got my ESA50 in December, my first actions was to post an enquiry on many Noticeboards asking if there was anyone who could take Shorthand who would be interested in a days work taking a verbatim shorthand record of my assessment.

Other than "Whats shorthand" there were no replies.

I now have several discreet voice recorders to use if the fools should be stupid enough to attempt to get me to the nearest MEC (the nearest of which is more than 90 minutes away)

 

Obviously no one does shorthand any more.

[**Margaret**]

:Ruby_Tuesday:

 

' am more confused than ever ......' Which is DWATO's intention.

 

I've quoted the legal theory at #1016. It probably missed the redaction pen when a DWATO clerk was doing freedom of info responses. If you're interested;

 

http://www.whatdotheyknow.com/request/rfp_27_recording_medical_assessm#comment-33289

 

There's no legislation as to how assessments are to be recorded so we're left with one piece of case law (CIB/3117/08 referred to at #974) and DWATO policy.

 

You can have an audio recorded messical. The realistic options for claimants are:

 

The DWATO way, which should get you an audio recorded messical, eventually. I've been waiting for seven months! Request one on page 2 of an ESA50 (as proof you've asked for one), then phone 08002 888777, or your regional Atos centre if you know the number.

 

Or:

 

Risk a covertly recorded by claimant messical. Tis legal and, at the discretion of the judge, the evidence is admissible at tribunal. But if the assessor susses, there's a very real risk of one's ESA55 file being returned to Jobcentreplus for failure to attend/submit. And subsequent disallowance of benefit!

 

Your comments about the Atos assessors are very valid. Most of them choose to opt out of recorded messicals.

 

Given the content of your posts I think you may find the following freedom of info request an interesting read. Especially the later questions and the annotations at the end.

 

http://www.whatdotheyknow.com/request/refusal_to_record_wca#incoming-313874

 

Sincerely, Margaret.

[Crazy Diamond]

We dont have any legal "Right" to record on private property

 

False. Quite simply, false. As you say, a little knowledge is a dangerous thing, and you are amply proving this.

 

But I am always happy to learn, so please provide case law that supports your opinion, until you do, it's only that, an opinion. If you can prove otherwise, I will apologise for doubting your knowledge.

 

Nolegion, thanks for your post, which reiterates what some of us have been saying for a while, and encapsulates what the law actually says instead of misinformation and wild guesses, most of it gleaned from US shows.

[Invalidation]

We dont have any legal "Right" to record on private property

 

False. Quite simply, false. As you say, a little knowledge is a dangerous thing, and you are amply proving this.

 

But I am always happy to learn, so please provide case law that supports your opinion, until you do, it's only that, an opinion. If you can prove otherwise, I will apologise for doubting your knowledge.

Whilst its normally difficult to prove a negative, in this case there isnt much of a problem.

There is no Law, Act or 'legal right' giving anyone express permission to record on Private Property. Private Property is just that, Private. You would enter by implied or specific permission, but you are there at the owners tolerance.

There is no case law as there is no Legal Right to record. I await with interest your stated case Law showing we indeed DO have a legal right to Record.

Not opinion but fact.

 

Therefore my statement was indeed correct. There is no legal right or implied consent that one could claim to actually permit recording. I would be happy to look at any evidence you might have proving otherwise though?.

The other point though is that on Private property you can simply be asked to leave the premises, thats the end, effectively, after that you are trespassing.

In Public we can video or record what we wish (with some limitations), but effectively there is no case law or act specifically permitting THAT either

 

Which law or Legal Right do you claim we have to record on Private Property?.

I am always happy to learn, so please provide case law that supports your opinion, until you do, it's only that, an opinion.

[time4change2]

dont worry your not alone in this.

 

i think this is just how the dwp and the idiots at ATOS are trying to get the real people who are sick off benefits and its often the real sick people who actual need the support this is just another way of making it harder.

[Guest]

I agree completely .... and still waiting for the response from the "appropriate minister"....should be interesting, assuming I ever get it.

[Crazy Diamond]

No, you're mistaken.

 

The DPA exemption s36 allows you to record, it doesn't specify where. Therefore, you can. QED. Show me one case in the UK where an individual's recording was suppressed because they were recording on private property, which is what you're asserting.

 

I'm not even going to address the small point as to whether assessemnt centers etc would count as public or private properties because that would lend credence to your surmisings and that would achieve nothing.

 

Trying to turn my post around doesn't make you clever, it just makes you look desperate to win a point instead of concentrating on helping other people. I'm not trying to score points, I'm trying to help people get their assessments recorded, that's all. I have provided already plenty of case law to support what I said, as has NoLegion, you can read and learn or you can keep on gnawing at that bone, matters little to me.

[Invalidation]

No, you're mistaken.

 

The DPA exemption s36 allows you to record, it doesn't specify where. Therefore, you can. QED. Show me one case in the UK where an individual's recording was suppressed because they were recording on private property, which is what you're asserting.

 

I'm not even going to address the small point as to whether assessemnt centers etc would count as public or private properties because that would lend credence to your surmisings and that would achieve nothing.

 

Trying to turn my post around doesn't make you clever, it just makes you look desperate to win a point instead of concentrating on helping other people. I'm not trying to score points, I'm trying to help people get their assessments recorded, that's all. I have provided already plenty of case law to support what I said, as has NoLegion, you can read and learn or you can keep on gnawing at that bone, matters little to me.

 

You are the one trying to be clever posting your opinion as fact with no basis to it.and you have failed miserably in attempting to do so.

There is no legal RIGHT to record on private property which is what I stated and still state. Though one is able to record in or on Private Property in certain circumstances, that does not give them a LEGAL RIGHT to do so. You are on someone elses property and are subject to their rules except where common law overides those rules.

 

You cannot prove a negative, but if as you assert, people do have a legal right to record on private property then lets see your Law. Post it. I will be happy to read it, But dont make a last gasp attempt with DPA.

The DPA Section 36 and even the entire DPA has nothing to do with the Legal Rights to actually record something, The DPA is only effective AFTER the fact of recording, not before it. The DPA is related to what is actually being recorded and stored and has nothing to do with the persons legal right to do so in the first place.

 

 

You havent provided one iota of case law, proof or evidence to show anything giving anyone a LEGAL RIGHT to record.

I'm also helping people to get their Assessments recorded but unlike you I'm not telling them there is any phantom "Legal Right" to do so. I have encouraged people if they have the fortitude, to covertly record their assessment. But as they are on Private Property they can be told to stop and ejected from the building if they dont.

There is no Law in this land specifically stating "You have a Legal Right to record on Private Property" IF there is, as you are trying to assert then post it. But I wont wait up.

Other than that, youre in a hole, stop digging.

Edited February 16, 2013 by Invalidation

[Crazy Diamond]

In other words, you're arguing I'm wrong but can't show it and muddy the waters instead. Ok. Please yourself. One might wonder why you would want to try and put people off their rights on a consumer-orientated site, but hey-ho, whatever, I think I'll let the actions do the talking.