PIP Audio Recordings

The request was successful.

Dear Department for Work and Pensions,

In the DWP Response to the DBC report on PIP Assessment Providers it states..

Audio recording

The Department does not intend to introduce audio recording of assessments from the introduction of PIP as we have not yet seen sufficient evidence from experience in Employment and Support Allowance (ESA) that this improves decisions, the claimant experience or justifies the additional expense. We intend to look closely at the ESA experience before taking decisions on whether to include audio recording as part of the PIP process in the longer-term. As a result, we have asked Capita not to offer audio recording at this stage.

1) Could you provide copies of the results of any surveys, questionnaires, or other consultations with claimants which asks for their experiences and/or opinions on audio recording.

2) As you intend to look closely at the “ESA experience” (a) how will this be achieved (b) what are the results so far.. (c) when is the final decision expected to be made?

3) Is it obligatory for Capita to conform to your request?

http://www.dwp.gov.uk/docs/consortium-re...

Yours faithfully,

B. Adams

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DWP Strategy Freedom of Information, Department for Work and Pensions

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Dear B Adams,

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Ray Playforth left an annotation ()

Imaginary conversation between Secretary of State, DWP (IDS)and Lord Freud, Minister of State for Welfare Reform (DF)

DF: I see the Disability Benefits Consortium are banging on about audio recordings of PIP assessments.
IDS: David, you know our policy intentions regarding audio recordings.
DF: I know but we've got to think up some sort of response to them.
IDS: What's the rationale for introducing audio recordings - it's to improve decisions, improve the claimant experience, but we must be able to justify it on cost grounds.
DF: I agree. But we need evidence to justify our refusal to allow audio recordings. Given our current restrictions and limitations we are placing on ESA WCA recordings and the fact that we are not requiring Decision Makers to consider audio recording evidence, except in limited circumstances, plus we don't have enough equipment for Decision Makers to utilise any audio recording evidence, it's difficult to see how we will ever have enough evidence to make an informed decision on audio recordings.
IDS: Exactly. Response sorted. Just tell them there's insufficient evidence to consider the introduction of audio recordings.
DF: What about Capita's offer to conduct audio recordings at their own expense. If we accept their offer it will mean that we will have enough evidence to work on but expose the fact that we will not be utilising it to inform any future decisions about the introduction of audio recordings.
IDS: Oh yeah! Fly in the ointment! Damn Capita. We'll have to refuse the offer and spin the yarn that we want to base any future decisions on audio recordings on evidence we gather from the present "Esa experience". That should do it. Anything else?
DF: Yes what about Mandatory Reconsideration? We've introduced that on the basis that it will improve decision making but haven't been able to provide evidence that it will do so. How does that sit with our policy on audio recordings where we're requiring evidence to justify it's introduction.
IDS: Don't be so naive David. You know as well as I do that we'll use any means we can to push our policies through. Anyway, I'm off. I've got to think up ways of fending off the flak I'm going to get over this blasted bedroom tax. Oops Freudian slip there (no offence David). Musn't call it the bedroom tax. What have we decided to call it? Ah yes Spare Room Subsidy and Removal of the Spare Room Subsidy. See ya.

B. Adams left an annotation ()

Very good indeed Ray, probably not so fictional either..

There have been no findings as to the reasonableness of the official policy about tape- recording medical examinations

The Secretary of State's representative in the 2009 Case to the Administrative Appeals Chamber could only attempt to justify refusal of a single recording by a claimant on the following grounds...

…..“He accepts that in principle the appellant's wish to tape-record the examination was 'perfectly reasonable'. However, he points out that from time to time criticisms are levelled against doctors carrying out medical examinations for the Department. He therefore argues that it is in the interests of justice for the examining doctor to be provided with a copy of the recording, thereby necessitating two copies being made contemporaneously”.

I myself would contest that if this is the case, if worried then they should use their own single recording device as used by solicitors, GP's and hospital consultants..

A more recent case in the tribunals (Employment Appeal) involves covert recordings in Vaughan v London Borough of Lewisham. This confirmed that even covert recordings may indeed be admissible as evidence.

J Newman left an annotation ()

Both the HCP and I are equal in common law. If I wish to make a recording, I can; if he/she does, they can. What’s wrong with that? Dual recording equipment is expensive.

Jim Otram left an annotation ()

Quite so, JN. The fact the DWP will not accept the obviously sensible, cost-effective accommodation, 'if you record then you must let the DWP as well', has always been, in my view, straightforward and compelling evidence of its bad faith in its approach to the entire recording issue, from the case B.A refers to above to now.

Incidentally, while we may all be equal at common law, we are not necessarily so under statute - in this case, for once, to our advantage! The DPA s.36 exemption for personal purposes which prevents a claimant's covert recording of a WCA being illegal, does not apply to someone acting for or on behalf of a business or organisation, such as the DWP (or any of its poodles).

The effect of this is that under statute a claimant's consent is required for an 'HCP' to record a WCA, but not vice versa.

John Slater left an annotation ()

I think the DPA requires more than just consent. The organisation has to have a lawful reason for collecting the information in the first place.

Considering the Audio Consent form states that the DWP does not require the recording of the WCA for any part of the benefit decision making process it sounds to me that the DWP is confirming it doesn't have lawful reasons to collect the recording.

The EU Commission put out draft proposals in Jan 2012 and if accepted will tighten up consent considerably:

1. The controller shall bear the burden of proof for the data subject's consent to the processing of their personal data for specified purposes.

2. If the data subject's consent is to be given in the context of a written declaration which also concerns another matter, the requirement to give consent must be
presented distinguishable in its appearance from this other matter.

3. The data subject shall have the right to withdraw his or her consent at any time. The withdrawal of consent shall not affect the lawfulness of processing based on consent before its withdrawal.

4. Consent shall not provide a legal basis for the processing, where there is a significant imbalance between the position of the data subject and the controller.

B. Adams left an annotation ()

It would be interesting to know for what purpose the DWP needs the recording for as John (S) says it is not for the purpose of a benefits decision making process ..under the eight principles of the Data Protection Act it has to be adequate, relevant and not excessive and processed for limited purposes. Having an extra recording is excessive, duplicating data and serving no purpose..

It also makes me wonder if it is encrypted and where it is stored.. The Nursing and Midwifery Council lost two discs containing personal info (not encrypted) and was fined £150,000 by the ICO in February.. It appears that Atos may be storing the data looking at the recording pilot report... A new report the Information Governance Report by Dame Fiona Caldicott (April 2013) also includes a lot of the EU proposals highlighted by John.. identifying consent as a necessity and ‘accredited safe havens’" for storage...

J Roberts left an annotation ()

"The law is now established that covert recordings are not inadmissible simply because the way in which they were taken may be regarded as discreditable: see in particular the judgment of this Tribunal, Mr Recorder Luba QC presiding in Dogherty v Chairman and Governors of Amwell View School".

para 12 Vaughan v London Borough of Lewisham

B. Adams left an annotation ()

For the alternative view see http://www.mddus.com/mddus/resource-libr...

“You might think that a patient would require your permission to record a consultation and that any recording made covertly was illegal. But this is not the case. When a patient seeks a consultation, the information being processed is almost exclusively relating to the patient. Under the Data Protection Act, that data is therefore personal to the patient. By recording it, that patient is merely viewed as processing their own data.”

This means the data is confidential to the patient but not to the doctor and there is no law against the patient doing with it as they please – including disclosing it to a third party or even posting it on the internet”

I understand it to be at the discretion of the courts/tribunals hence the use of the word “may” be admissible.

DWP Strategy Freedom of Information, Department for Work and Pensions

1 Attachment

Please see the attached response to your Freedom of Information request.

Many thanks,

DWP Central FoI Team
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P V Sutton left an annotation ()

B Adams asks, in an annotation on 30 April 2013,

"It would be interesting to know for what purpose the DWP needs the recording for as John (S) says it is not for the purpose of a benefits decision making process "

I hate to defend the DWP or Atos, but they do have a legitimate reason. The claimant may use the recording either for an appeal, if they believe that the written record is inaccurate, or for a complaint against either the DWP or Atos.

If this is the case, then it is very much in the interest of either of those parties to retain a copy, so that any "doctoring" of the evidence by the claimant can be revealed easily. It would otherwise be child's play to remove the bit of a recording where a claimant swore at or threatened an HCP, or where the HCP did ask a question which the claimant says was not asked.

This is also why they do not allow a digital copy to be made and then copied by the claimant - the idea being that the claimant could unobtrusively remove some part of the record and then claim an event or question never happened.

I believe that prohibiting digital copies made on the spot is taking this principle too far - very few claimants would have the time or expertise to modify a sound file at a precise point, with the HCP watching and only 5 minutes to do it. However, it would add to the times required for a recorded WCA.

Part of the "sell" of recording the WCA is that it would protect HCPs from false allegations.

Consequently, I think the stipulation that a simultaneous recording be made for both parties is entirely reasonable.

I believe that Atos have recently amended the terms of employment for its HCPs so that they cannot refuse to have a WCA recorded - but I don't have the reference to hand.

John Slater left an annotation ()

The problem with the reason that the DWP need a copy just in case someone appeals is that it is unlawful. The DWP needs to have a very compelling reason to collect and store what is highly sensitive personal data and “what if” or “maybe” isn’t enough. There are many problems with the DWP having access to a copy of a recording but for me the crucial one relates to situations where the claimant tells the HCP something that they say must not be told to anyone else (e.g. sexual abuse). The HCP cannot use this ‘evidence’ or record it as the claimant has not given explicit permission. The DWP WCA handbook mentions this specifically. We don’t know who within Atos or the DWP will have access to these recordings and under what circumstances, is it just HCP or could the most junior admin person get access. This means that people who don’t have their WCA recorded have more protection regarding highly sensitive information (i.e. DWP rule and Regulatory codes of conduct) than those that do.

The respective HCP also need to be very worried about this as both the GMC and NMC are clear that their members must not do or disclose anything that could harm or embarrass the patient (claimant). Therefore, if HCP allow recordings that contain harmful or embarrassing information about the claimant to go out of their control (i.e. into Atos or DWP) they are tacitly agreeing to something that breaches their professional code of conduct.

The other problem is that the DWP is using the Data Protection Act to obtain ‘discovery’ of evidence. Legislation and case law have specifically excluded this as an appropriate method. If someone takes legal action against someone else then they are required to disclose the evidence they intend to use. The DWP then has ample opportunity to test the recording to see if it has been modified. It isn’t as easy as you would think to edit audio without it being easy to spot.

Ray Playforth left an annotation ()

Anyone spotted this - confirms my point about evidence above.

Written statement on WCA audio recordings in House of Commons 5 June 2013 (HC Deb, 5 June 2013 c1214W)

Since September 2011 Atos Healthcare have completed 2,056 audio recorded work capability assessments.

During that period 1,446,515 face to face work capability assessments (for both ESA and IB reassessments) have been completed.

Therefore the proportion of recorded assessments is 0.14%

William Hammonds left an annotation ()

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.
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.