Refusal to Record WCA

John Slater 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 refused by Department for Work and Pensions.

Dear Department for Work and Pensions,

FOIA Request Regarding Recording / Refusal to Record WCA

Question 1 - Is a change proposal form (CPF) under production by the DWP or Atos?
Question 2 - If a CPF is being under production, which organisation is producing it and what is the original and current forecast completion date?
Question 3 - Has the DWP submitted a completed CPF to Atos in relation to WCA being recorded?
Question 4 - Has Atos submitted a completed CPF to the DWP in relation to WCA being recorded?
Question 5- If a CPF has been submitted by either party:
when was it submitted?
when does the DWP expect the a decision to be taken whether to accept the proposed change and issue a Change Control Note to Atos?
Does the DWP intend to extend the 14 day working day limit to respond in the contract in respect of this change?

Question 6 - Where a claimant requests that their WCA to be recorded and Atos subsequently refuse / claim it is unable to comply with the request; insist that the WCA cannot be delayed further and the claimant insists that the WCA be delayed to allow recording. Under which contractual category will Atos document the assessment (e.g. Claimant turned away unseen).

Question 7 - In the situation where a claimant attends their WCA and attempts to record the assessment (openly or covertly) and Atos refuse to carry out the assessment or terminate it after it has started. Under which contractual category will Atos document the assessment (e.g. Claimant turned away unseen).

Given that the contract states that:
“The CONTRACTOR shall make reasonable endeavours to examine all Claimants who attend for examination on the day of their scheduled appointment.”

Question 8 - On what basis (legal or contractual) is it not reasonable for Atos to allow the WCA to be recorded and as such refuse to carry out or terminate the WCA? In providing data related to this question the DWP should consider:
The claimant is not breaking any law by recording the WCA (covertly or overtly).
The courts (inc Tribunals) are allowed to accept the recording as evidence is they wish.
The data obtained covered by section 36 of the DPA.
The HCP has no expectation of privacy when carrying out a WCA as the information being processed is almost exclusively relating to the claimant.
Recent announcements / answers to parliamentary questions by Government Ministers regarding recording WCA.

If Atos, DWP or the HCP refuse to allow a WCA to be recorded and this resulted in the loss of benefits by the claimant then why does the DWP believe that it is not acting outside the law? Please provide references to relevant legislation and case law. I ask for this data as surely a government department would not allow decisions to be taken regarding the removal of benefits that were not checked beforehand to ensure it is legally sound?

I believe that Atos have stated publically that their contract with the DWP prevents it from postponing WCA to allow recording. Having looked at the redacted contract issued by the DWP I am unable to find the relevant section.

Question 9 - Please direct me to the section/clause of the contract (this is required by the ICO) that prevents Atos from postponing WCA due to the claimant wishing for a recording.

If Atos is referring to the impact of postponements on the completion targets built into the contract then it is within the gift of the DWP to allow postponements due to recording to be excluded from the respective metrics.

Question 10 - If this is the case has the DWP considered this option or have any discussions taken place regarding any such changes?

Yours faithfully,

John Slater

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J Newman left an annotation ()

It will be interesting to see how comprehensively and honestly each point here addressed. I think we all assume a standard of management and level of organisation that simply does not exist. Increasingly I get the impression that within both Atos & DWP there is a bunch of high-level individuals pontificating over policy and direction without much of a clue over either and an army in the lower echelons that works on no more than a “best endeavours” basis in the hope that they will get it right eventually, without any real management influence or control - things happen (or not) pretty much on a random basis.

J Newman left an annotation ()

It will be interesting to see how comprehensively and honestly each point here is addressed. I think we all assume a standard of management and level of organisation that simply does not exist. Increasingly I get the impression that within both Atos & DWP there is a bunch of high-level individuals pontificating over policy and direction without much of a clue over either and an army in the lower echelons that works on no more than a “best endeavours” basis in the hope that they will get it right eventually, without any real management influence or control - things happen (or not) pretty much on a random basis.

John Slater left an annotation ()

I don't expect to get a response that actually addresses anything I have asked. I'll probably be simply directed to the contract again or they'll try to claim an exemption. Based on what the NAO said recently I doubt anymore really knows the contract within the DWP. They probably don't know what best endeavours means contractually (sadly very little!).

My experience of public sector versus private sector is that if the public organisation has the guts to raise a concern or penalty the private organisation either threatens to go to the lawyers or moans that it won't make any money if penalties are applied so it isn't worth their while carrying on with the contract etc etc. At that point the public organisation usually panics and gives in. I know of at least 2 large private organisations that regularly use this tactic.

Of course if the word 'change' is used the private sector company simply uses it as an excuse to line its pockets. Their accountants and lawyers run rings around the public sector organisation.

I agree with you that there is clear evidence that Atos have a huge influence on policy. I'm my view companies that work on policy should be automatically excluded from bidding for any subsequent contracts.

I've worked with Atos in the real world and I can assure you that maximising income for them is top of the list everytime. I told a company within a week of starting that they should cancel a programme (even though it would cut short my contract) but Atos were called in and took a 8 weeks and lots of people (at very high rates!) to come to the same conclusion for exactly the same reasons. They didn't even come up with any more evidence that I had. Great work if you can get it!

DWP DWP Medical Services Correspondence, Department for Work and Pensions

1 Attachment

Dear Mr Slater

Please find enclosed a response to your request for information under the
Freedom of Information Act by the Medical Services Contract Correspondence
Team Freedom of Information Officer..

<<3712-3229 Mr Slater Response.pdf>>

Kind regards

Medical Services Contract Correspondence Unit, Department for Work and
Pensions, Room 306, Block 3, Norcross, Norcross Lane, Blackpool, FY5 3TA
Tel 01253 611556, extn 69956

Please consider the environment before printing

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Dear Department for Work and Pensions,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Department for Work and Pensions's handling of my FOI request 'Refusal to Record WCA'.

Thank you for your reply to my FOIA request.

Answer to Qs 1,2,3,4 & 5
Thank you for confirming that neither the DWP nor Atos have taken any contractual steps towards normalising the recording of WCA should a claimant request it. The DWP answer appears to contradict recent political statements. Are the DWP taking action of any kind regarding the normalisation of recording WCA if claimants request it?

Answer to Q6 & Q7
The DWP answer contradicts what Atos tells claimants. Are the DWP categorically stating that Atos do not assign or propose to the DM one of the contractual categories to an assessment?

Answer to Q8
As expected the DWP simply hasn’t answered my question. The contract states that Atos should us ‘reasonable endeavours’ to ensure that WCA are completed, hence my original question asking about reasonableness. You need to refer me to contract clauses, legislation and case law that supports the DWP position here not quote irrelevant (as far as the law is concerned) propaganda. Is there any part of the contract or the law that shows it is reasonable and legal for WCA to be cancelled and claimant’s benefits put at risk because they won’t continue without their WCA being recorded? It is a simple question so please provide me with the data.

Answer to Q9
As expected the DWP simply hasn’t answered my question and once again it is very simple. Please direct me to the section/clause of the contract (this is required by the ICO) that prevents Atos from postponing WCA due to the claimant wishing for a recording. The fact that the existing contract doesn’t stipulate recording is irrelevant.

Answer to Q10
As expected the DWP simply hasn’t answered my question and once again it is very simple. Please answer my question.

Statement Regarding Domestic Use
The DWP statement “However, publishing the recordings e.g. on the internet, or in any other way, is going beyond domestic purposes” is untrue. Under the Carltona Principle this statement means that the Minister of State is actually lying which, constitutionally and legally, is a serious issue. The ICO guidance on this is absolutely clear. The Section 36 exemption is based on the purposes the personal data is being processed for, not the nature of the data itself. The ICO lists the activity that falls within the section 36 exemption:
- Using an online forum to ‘rant’ about your neighbour or a political figure.
- Posting comment about a tradesman on a ‘ratings’ site.
- Leaving a personal review of a product on an e-commerce site.
- Taking part in a local newspaper discussion forum.

Publishing data on a website or discussion form about personal dealings with the DWP and its subcontractors clearly falls within the Section 36 exemption given the constitutional position of the minister and their department. It is also obvious that if recordings of conversations / assessments are uploaded as part of expressing personal views or having a ‘rant’ this is covered by the Section 36 exemption.

Please correct the statement you have issued to confirm that the DWP is aware of the true position as I state. If the DWP fail to do so and continue to make untrue statements I will have to complain to the ICO and parliamentary ombudsman.

A full history of my FOI request and all correspondence is available on the Internet at this address:
http://www.whatdotheyknow.com/request/re...

Yours faithfully,

John Slater

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

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J Newman left an annotation ()

I too have received this false assurance that DWP policy has not changed - not a word a lot of people like, but this is no less than a lie. Grayling's statement in the HoC said anyone who wanted recording would get it WITHOUT QUALIFICATION. What we now have is a vague "best endeavours" offer, which could mean none!

This creates a differential between claimants which is highly significant at appeal - DWP is in effect denying some claimants an important piece of evidence and therefore influencing appeal outcomes. It is perfectly possible to secretly victimise certain claimants to ensure their appeal evidence is as weak as possible. They will say this does not happen but have no process in place to prove it. This unequal treatment is contrary to their own Charter and also the Civil Service Code. It is an outrageous dereliction of duty.

J Newman left an annotation ()

and . . . .

So Atos CHOOSES to postpone my WCA - it is not FORCED to as I am doing nothing illegal. Whatever happens subsequently is THEIR fault, NOT mine including any delay however long it might be.

J Newman left an annotation ()

and . . . . .

I would consider foregoing my right to record if DWP can GUARANTEE it will get the decision right first time.

Dear Department for Work and Pensions,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Department for Work and Pensions's handling of my FOI request 'Refusal to Record WCA'.

IRR sent of 18th September and still no response!!!

Last chance before yet another one goes to the ICO.

A full history of my FOI request and all correspondence is available on the Internet at this address:
http://www.whatdotheyknow.com/request/re...

Yours faithfully,

John Slater

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

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DWP DWP Medical Services Correspondence, Department for Work and Pensions

1 Attachment

Dear Mr Slater,

Please see attached response;

<<IR 599 J Slater response.pdf>>

Health & Disability Assessments (Operations)/Department for Work and
Pensions / Room 306 / Block 3 /Norcross / Norcross Lane / Blackpool / FY5
3TA

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Dear Department for Work and Pensions,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Department for Work and Pensions's handling of my FOI request 'Refusal to Record WCA'.

DWP Answer to Questions 6 & 7
Given the workload that the DWP provides to the ICO I feel obligated to try once more before submitting yet another complaint to the ICO. My request was phrased very clearly and yet the DWP felt it needed to provide a response that was totally irrelevant. As I am sure the people dealing with FOIA requests are aware the medical services contract contains a number of measures (e.g. percentage sent home unseen, percentage that did not attend, etc). Someone in the ESA process has to decide which category a particular WCA falls within (e.g. sent home unseen, did not attend, etc). I want to know:

Question - Does the Atos HCP or other Atos employee/contractor make this decision and provide the decision data to the DWP DM along with the claimant case file?

Question - Does the Atos HCP or other Atos employee/contractor make a recommendation as to which category should be applied to the DWP DM along with the claimant case file?

This is the DWP final chance to stop playing silly games and provide the requested data.

DWP Answer to Question 8
The DWP hasn’t provided the requested data but its inability to provide the requested data simply supports the position that the current DWP position regarding recording ESA WCA remains illegal.

DWP Answer to Question 9
The DWP statement, the response to my IRR and current position regarding recording WCA is not compatible with the Data Protection Act. In addition, the DWP own legal advice has confirmed that ‘recording of assessments must be allowed without unreasonable obstructions’. This is not the same as stating that the DWP can impose reasonable conditions. Given that the DWP has refused to correct its illegal statement I will now refer the matter to the ICO.

A full history of my FOI request and all correspondence is available on the Internet at this address:
http://www.whatdotheyknow.com/request/re...

Yours faithfully,

John Slater

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

This is an automated confirmation that your request for information has
been accepted by the DWP FoI mailbox.

By the next working day your request will be forwarded to the relevant
information owner within the Department who will respond to you direct. 

If your email is a Freedom of Information request you can normally
expect a response within 20 working days.

Should you have any further queries in connection with this request do
please contact us.

For further information on the Freedom of Information Act within DWP
please click on the link below.

[1]http://www.dwp.gov.uk/freedom-of-informa...

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DWP DWP Medical Services Correspondence, Department for Work and Pensions

1 Attachment

Dear Mr Slater

Please see your FOI response attached

Kind regards

Health & Disability Assessments (Operations)/Department for Work and Pensions/Room 306/Block 31/Norcross/Norcross Lane/Blackpool/FY5 3TA

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DWP DWP Medical Services Correspondence, Department for Work and Pensions

1 Attachment

Mr Slater

Please see attached reply to your Freedom of Information request

Many Thanks

Business Management Team | Department for Work and Pensions | Contracted Customer Services Directorate | DWP Operations | Room 306, Block 3, Norcross, Norcross Lane, Blackpool FY5 3TA | www.dwp.gov.uk | Please consider the environment before printing

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Diana Foster left an annotation ()

during a recent conversation with ATOS re recording my assessment, I was advised that not only does ATOS have a limited number of recording equipment available, they also only have a limited number of HCP's who have volunteered to participate in recorded assessments.
If this is true and ATOS allow HCP's to refuse to participate in recorded assessments this would explain why many clients are being "discouraged" from having their assessments recorded by being advised that assessment have to be rescheduled several times.

John Slater left an annotation ()

Thanks Diana. DWP/Atos listed HCP recruitment and retention of HCP as a key risk in the RFP documents for the Harrington Recording Pilot. I’m sure that Atos are terrified that they will not be able to deliver the contractual volume of assessments if recording becomes standards as HCPs won’t be prepared to work under those conditions (this really is one of those situations where if you have nothing to hide ...). If you watched the Panorama programme you will have seen the trainer telling HCP that the good thing about the job was that they didn’t have to attend tribunals. In effect she said that nothing came back to hurt them. Recording would also be likely to increase the number of complaints to the GMC and NMC and no one, including the GMC & NMC, what that to happen.

The DWP are probably terrified that completed assessment volumes will drop and the number of successful appeals will increase. Both of these will be politically damaging so you can imagine the pressure being applied to prevent it happening.

Jim Otram left an annotation ()

Thnaks for that update, DF.

Wholly agreed, JS.

The DWP are not montoring the real reason why people's medical assessments are being delayed - sometimes for months - if the claimant wants a recording;-

http://www.whatdotheyknow.com/request/14...

Diana Foster left an annotation ()

maybe it's worth trying to get some clarification in writing from DWP/ATOS about letting HCP's volunteer to participate in recordings and asking how many HCP's have declined / volunteered to do so? I can only go by what a member of staff at ATOS told me over the phone and going by people's experience, sometimes this can be somewhat unreliable. However if true it would provide an explanation why many people wait longer for recorded assessments.

Anonymous left an annotation ()

I believe, that there is only one category used by HAAS to refer a casefile back to the DWP where an examination was not possible, and that is "DNA" (Did Not Attend). There is then an annotation field on MSRS next to the category field which is sometimes (but not always) completed by HAAS which sometimes says things like "Claimant not prepared to wait beyond 30mins", "claimant became abusive" "claimant not cooperative" but I have NEVER heard of the annotation saying anything about recording the WCA i.e. "Recording equipment unavailable Claimant unwilling to proceed without recording taking place". I would imagine just as there is probably a drop down menu for the "DNA/UTA/Examined" field there is probably a drop down for the annotation field.

May I ask you, John Slater, what is the DWP DM's & Tribunal's view (respectively), generally taken on a FTA WCA for a claimaint who is willing to wait for recording equipment to become available but HAAS (or ATOS as it was previously) not willing to delay the WCA any longer and refer the casefile back to DWP as DNA.? I have to ask, as I have never encountered the scenario before.

Anonymous left an annotation ()

I imagine, in the scenario where the HAAS are not prepared to delay anyfurther due to recording not being available, HAAS would use DNA and if anything was put in the other field, it would be something generic like "Claimant not cooperative".

John Slater left an annotation ()

Hi,
I believe there are two grounds prescribed in law regarding claimant’s attendance at WCA. They are failure to attend a medical examination and failure to submit to a medical examination (I think they are defined in one of the Welfare Reform Acts)

I suspect that if someone turns up but isn’t cooperative with the assessor then they can be deemed to have failed to submit to a medical examination. To be best of my knowledge there are the only two reasons that someone can be found fit for work ‘by default’

To the best of my knowledge the matter of audio recording has only been partially dealt with by the Tribunal. The case reference is “[2009] UKUT 56 (AAC)” (Upper Tribunal Case No. CIB/3117/2008).

If you register with rightsnet you can find the decision here.

http://www.rightsnet.org.uk/welfare-righ...

If my memory is correct Judge Wikeley found that:

“It has not been established that the appellant failed to show ‘good cause’ for failing to submit himself for a medical examination on 22 October 2007.”

The claimant had wanted to record his examination on his own terms and the DWP refused claiming that by doing so he had failed to submit to a medical examination. The Judge specifically refused to decide if the DWP policy on audio recording was lawful so the best of my knowledge it hasn’t been tested in court yet.

An issue for me is that the DWP DM are comparing the actions of claimants (if they wish to record their own assessment on their own terms) against an internal DWP audio recording policy. This is unlawful as in effect the DWP is judging the case against its own ‘law’ (i.e. its internal policy). I believe that the appropriate case dealing with this precedent is:

R v Sussex Justices, Ex parte McCarthy ([1924] 1 KB 256, [1923] All ER Rep 233)

It tries to get around this by claiming that the person failed to submit or failed to attend. If the person is physically present demanding that the examination is recorded on their own terms then it is absurd to claim “failure to attend”. Failure to submit is equally flawed as the person isn’t refusing to be examined. It is the Secretary of State’s contractor that is refusing to carry out the examination.

So it hasn’t been sorted out yet and needs someone prepared to insist that their examination be recorded on their own terms and then take it all the way to the Upper Tribunal (and probably beyond if the DWP lost). Hope this helps
John

Anonymous left an annotation ()

Thank you very interesting, thanks for the Upper Trib Ref, I will look it up on the Appeals and Tribunal services website. I am new here and don't know if there is a private message system or a forum where I would contact you rather than in these annotaions. By The Way I found a WDTK request for the "Medical Services Referral System (MSRS) ESA User Guide" Which interestingly on page 42 has para 199 where it says previously Claimants were required to provide their own dual based recording system so the HCP could have an exact copy. I wonder what the DWP/HAAS would say to the question of a claimant today turning up for WCA with a dual based recording system?
It also says each MEC should have a recording device, so I really can't see why WCA delays occur as each centre should have working recording device.

John Slater left an annotation ()

Anonymous,
Apologies for not responding earlier but I didn't get notified about your last annotation. If you click on my user name it will take you to a page where you can send me a private message.