Claimants Acting on Fit for Work Decisions

Gerald Jones made this Freedom of Information request to Department for Work and Pensions

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

The request was partially successful.

Dear Department for Work and Pensions,

The DWP frequently states that HCPs are better trained and have more experience than claimant’s Doctors and Consultants in assessing claimant’s fitness for work.

The DWP also states that HCP provide a medical report that reflects their professional opinion to the DWP Decision Maker (DM) who ultimately makes the fit for work decision.

Based on published DWP claims that HCP are better qualified and more experienced in assessing fitness for work than a claimant’s Doctors it is therefore reasonable for a claimant who is found fit for work to act on said advice and either return to work or undertake work related activities.

Should a claimant act on the fit for work decision (taken by the DWP DM on the professional advice of the HCP) and suffer physical or mental harm as a result the claimant or their family may wish to issue legal action against the HCP and DM.

My FOIA Request is:

Is there any statutory protection in place that would prevent a claimant or their family from taking legal action against the DWP DM for the consequences arising out of their fit for work decision?

Is there any statutory protection in place that would prevent a claimant or their family from taking legal action against the HCP for the consequences arising out of their professional opinion as documented in the medical report?

Is there any statutory protection in place that would prevent a claimant or their family from taking legal action against the Secretary of State for Work and Pensions for the consequences arising out of their employee’s decision?

Please do not attempt to avoid providing the requested information by going on about hypothetical situations as my question relates to fact and the potential situation is provided purely as background information.

Please do not provide the usual waffle in an attempt to appear to have provided the requested information. The correct legal response is to either:
- provide me with the requested information
- direct me to the requested information (please remember the personalisation and good practice requirements).
- state that the DWP does not hold the information or cannot direct me to it.

Yours faithfully,

Gerald Jones

DWP freedom-of-information-requests, Department for Work and Pensions

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J Newman left an annotation ()

There is quite an important issue underlying this that DWP has never accepted:

-DWP DMs make the ESA decision.

- The ESA decision stems DIRECTLY from the FFW decision

- The FFW decision requires special training which only the Atos HCP has.

- But the ESA decision cannot be made by the HCP

So who does decide what? There is obviously one redundant step in the process.

Gerald Jones left an annotation ()

I agree. I think the DWP has been getting everything its own way for far too long. The Tribunal Service has reminded it that it confuses policy and opinion with Law. It will be interesting to see what response it provides as to some degree it is damned if it does and damned if it doesn’t on this one.

The Atos HCPs hide behind the DWP DMs and I think the DMs are allowed to hide behind the DWP (as I believe the regulations state that they are not acting as an individual when making decisions) so who do we hold to account for getting it horribly wrong!

J Newman left an annotation ()

In one of my WCAs the HCP recorded in the ESA85 (without any discussion or appropriate questioning/examination) that there was no reason why I could not use a manual wheelchair. The DM predictably interpreted this as a recommendation that I could. When I asked whose decision it was, they each said the other.

And the even bigger joke is that HCPs are not allowed to recommended treatment for a condition, but are allowed to recommend adoption of a wheelchair and comment on the effectiveness of prescribed medication. But they categorically CANNOT interfere with treatment – work that logic out if you can.

DWP LS FOI, Department for Work and Pensions

1 Attachment

Dear Mr Wood

Please find attached response to your recent FOI request.

<<Response FOI 987 Wood .pdf>>

Regards

DWP Central FOI Team

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Dear DWP LS FOI,

You've sent the response to the wrong FOIA request. Please sort your internal processes out as this isn't the first time this has happened

Yours sincerely,

Gerald Jones

DWP LS FOI, Department for Work and Pensions

1 Attachment

Dear Mr Jones

My apologies for attaching the wrong response to your FOI request.

Please find attached correct response to your recent FOI request.

<<Response FOI 951.pdf>>

Regards

DWP Central FOI Team

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Dear DWP LS FOI,

Thank you for providing a polite and succinct response. It was utterly refreshing to receive this response as it answered my question without having to go through the pain of several IRR.

Yours sincerely,

Gerald Jones

William Hammonds left an annotation ()

Use whatever you like to make a record of your audible presentation. Since when did atos acquire the authority to decide how you make a record.
Atos HCP can misrepresent a client in all wca reports.
The only way to put a stop to this is to have an audio recording made of the wca.
Atos will offer to supply the audio equipment. When you arrive at your wca they will ask you to sign a waiver which states that you will not use the recording for any other purpose than to assist your claim. After all, the recording will belong to them and they can decide what a copy can be used for.
If you have a wca booked you can take your own recording equipment as long as you give formal notice that you intend to record.It could go like this "I hereby give formal notice of intent to make audio recording of my audible presentation during wca on (date) at (address). This recording will include audio recording of any other person attending wca and will be used for any porpose including but not limited to private prosecutions of hcp"
You do not need permission to give notice. Just push it in front of the hcp, and go ahead and record with whatever you feel would be admissible in court.
This will make the recording yours, and you can use it to prosecute the HCP privately. The Hcp can not hide behind the corporation when accused of misrepresentation which has caused loss or harm.
Small claims courts were designed to simplify claims, and I can assure you that you will be surprised at how easy it can be to prosecute. One step above small claims courts are fast track courts. These courts are also a breeze. Try visiting any of these courts and ask an official how to make a claim, they will gladly help you as it is in their interest to have the business.