WCA: Recording rights refused

Chandler Ford made this Freedom of Information request to Department for Work and Pensions

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Dear Department for Work and Pensions,

In FOI 3066-1283 it is quoted by the DWP Central Freedom of Information Team that:

"A claimant is within their rights to record their business with DWP for domestic purposes, that is their personal, family, or household affairs (including recreational purposes), however, publishing the recordings on the internet, or in any other way, may be going beyond domestic purposes and may indicate that you may be acting as a data controller."

The above statement is a correct interpretation of the Data Protection Act. Can you please then explain on what grounds in law the DWP and ATOS healthcare prevent the claimant exercising the right that you admit they have?

Can you further explain why the denial of this right then means that the claimant is judged as "failed to attend" or "failed to submit" to the medical assessment, invariably resulting in their benefits being stopped?

As all first year law students should know, Lord Camden made a ruling in Entick v Carrington [1765] EWHC KB J98, which lead to the basic principle that the individual may do anything but that which is forbidden in law, but the state may do nothing but that which is expressly authorised by law. Also, the same law student would recognise that by all legal definitions, ATOS act as the agent of the state and can be considered, in this role, to be part of it. It appears that according to the ATOS handbook, that one assumes has been cleared by the DWP, that recording by a claimant requires the ATOS employee to terminate the assessment.

Please can you explain on what grounds the DWP and its agents, ATOS, feel that this simple and long established legal principal does not apply to unemployed disabled people undergoing assessment of their condition?

Yours faithfully,

Chandler Ford

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DWP DWP Medical Services Correspondence, Department for Work and Pensions

1 Attachment

Dear C Ford 

Please find enclosed a response to your request for information
under the Freedom of Information Act by the Health and
Disability Assessments (Operations) Correspondence Team Freedom
of Information Officer.

<<4050-4303 Response C Ford.pdf>>
Kind regards

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

Please consider the environment before printing

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Jim Otram left an annotation ()

A clear and well-reasoned enquiry utterly fobbed-off by the DWP.

J Newman left an annotation ()

The ad hoc decisions being made in this general area must be emanating from someone relatively senior in DWP and it would be useful to know who it is. Once such a decision has been made it has to be communicated throughout the organisation so information MUST exist – meeting minutes, briefing notes etc. to make it ‘official’.

I think at least for the time being we have to resign ourselves to the fact that DWP and its political masters have no regard for the people they are meant to serve and will do pretty much what they like leaving the Tribunal Service to pick up the pieces.

Dear DWP DWP Medical Services

All of my questions remain unanswered.

Your reply concerns the prerequested recordings of medical assessments using DWP/ATOS owned equipment. My questions refer to a claimant recording the session, with or without informing the healthcare professional that they are so doing.

Question 1 then. Why are claimants being denied the right to record their dealings with the DWP?

Note... I am not asking why claimants are having their right to have their dealings with the DWP recorded, which is the question you seem to have answered.

Question 2 also, therefore, remains unanswered. I'll clarify it for you. Why does the ATOS/DWP representative's decision to refuse to be recorded result in the claimant being deemed "failed to submit" to a medical assessment?

Question 3 was skilfully avoided. I'll clarify. Under what law is the DWP able to remove the rights of people attending medical assessments. I find lot of legal advice saying that such recording is legal, so I'd like the DWP to point me to the law under which it sees fit to deny this right. Maybe this is in the ESA contract, which I'd also accept, but then I would ask why the claimants witness on the day, who is not subject to that contract but is party to the conversation is denied their right to record the session.

Please answer the questions asked rather than the ones that are similar, but easier for yourselves to answer.

Yours sincerely,

Chandler Ford

DWP DWP Medical Services Correspondence, Department for Work and Pensions

1 Attachment

Dear Mr Ford 

Please find enclosed a response to your request for a review of
the information previously supplied under the Freedom of
Information Act by the Health and Disability Assessments
(Operations) Correspondence Team Freedom of Information
Internal Review Officer.

<<IR830 C Ford Response.pdf>>
Kind regards

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

Please consider the environment before printing

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Jetset Willy left an annotation ()

Surely as RFD 27 states, ATOS has a contractual obligation to record any requested recording

Paul Smith left an annotation ()

I think this previous case may be of use to you unless ytou've already seen/read it?


John Slater left an annotation ()

Sadly the tribunal judge still held that it was reasonable for the DWP to impose conditions and have a copy of the recording which I think goes against English Law. After all we don't prevent people driving on the premise that they might do something dishonest.

Basically he ducked the key issue and left it for another judge to sort out at a future tribunal hearing if someone refuses to continue with their WCA unless it is recorded on the claimants terms. I do wonder how keen the DWP are not to have another case over recording getting to a tribunal as there is a significant chance that it would go against them.

Pam Williams left an annotation ()

In my opinion (and I am not a lawyer) the key issue here is that the data captured in a recorded WCA is the personal data of the 2 parties being recorded, i.e the claimant and the HCP and NOT the personal data of either DWP or ATOS.

Both DWP's response to the FOI enquiry and their submissions in the referenced case seem to acknowledge this (although not explicitly) and refer to protecting the privacy/rights of the HCP, not DWP's or ATOS's privacy/rights.

Since the claimant has a right to a copy of his personal data then equally an HCP involved in the recording must also have a right to a copy - to keep personally (i.e to take home). But DWP's conditions and 'recording consent form' specify that DWP will keep the 2nd copy, but what gives them a 'right' to hold/use a copy of the personal data of 2 individuals?

Of course we all know why they want the copy themselves, but I'd be interested to see what arguments they make for a 'right' to hold it, when they are currently arguing that both the consent to the recording and the need for 2 copies is in the context of rights/consent between the claimant and HCP.

An easy solution to protect the 'privacy' of the HCP would be to start the recording after introductions were over, and then there would be no 'data' captured in the recording with which s/he could be identified.


J Newman left an annotation ()

Following on from JS’s annotation above, it was no coincidence that Grayling was moved to the Ministry of Justice!!!

At the moment, DWP and ID-S have nothing to lose in the absence of a definitive judgement and the risk of compensation and/or direct legal costs. The TS runs on separate budgets and I have from a previous JC+ CEO in writing the fact that he was not therefore at all interested in what goes on there – someone else’s problem. So much for “joined-up” Goverment.

John Slater left an annotation ()

Hi Pam,
I believe that the rights of the HCP only come into play is the recording contains data that will enable the HCP to be identified. This doesn’t simply mean their name and the fact they are a nurse or doctor. I would argue that the data such as name and professional body registration number are freely available via the NWC and GMC so that should not trigger the ‘personal data’ element of the DPA. Based upon my own experience and what others have told me it is hard enough to get the HCP to tell you their name. I do not believe that the HCP has any rights to a copy of the data and the DWP and Atos certainly do not.

Chandler Ford left an annotation ()

Well... We have admission in previous requests that the public have the right to record their business with the DWP, so I guess the above is as good as it gets!

For clarity, the HCP is not acting as an individual and as a contractor/employee is bound by the guidelines and an employment contract. So the HCP is unlikely to maintain the right to record a session either covertly or openly for personal purposes. The HCP is therefore only allowed to record the session with prior agreement of DWP via the guidelines, and the claimant, via the request to record the session. This knowledge comes from discussion with a lawyer about a very similar situation, that of a disciplinary hearing at work, where the law itself sits beside any regulations, guidelines and contracts of employment.

The individual claimant may be restricted in a similar way, by the T&Cs of claiming ESA... As conceeded above as a possibility. Any witness taken along is not subject to any such "contract" though and does indeed maintain ALL of their freedoms.

Good luck to whoever can get this one into a courtroom, as I believe that the DWP would have to back down very quickly, or risk a precedent being set to actually give us this right. As far as I can see, with a search of Law databases, no explicit statement in a judgement exists... But there are some very similar ones involving photography and press intrusion.