ATOS doing medicals despite Tribunal decisions

A client of mine won an ESA appeal on Monday 5 November. She was put into the Support Group, and the Tribunal recommended she not be retested for at least 24 months. Unfortunately, she was unsuccessful at another Tribunal in July 2012 (a decison which was overturned) and had to make a new claim. Atos have said that the medical due on 15 November for this new claim must go ahead, no matter what the Tribunal said. The Tribunal on 5 November put her in the Support Group under Reg.35 - her mental health is such that even though they can’t find specific descriptors for her, she shouldn’t be even be put in the WRAG. Going to another medical is really not going to be good for her at all, and surely the DWP couldn’t make a different decision from that of the Tribunal anyway?

Has anyone had any experience of this? What legal standing does a recommendation by a Tribunal have when it comes to time before the next retest? I’m awaiting a callback from Jobcentre Plus - I have a feeling this may be one of those times when Atos and DWP ping-pong the issue back and forth, both swearing that the decision is for the other to make and they’d love to help but they can’t…

“What legal standing does a recommendation by a Tribunal have when it comes to time before the next retest?”

None.

I agree there is no binding nature in a tribunal’s recommendation as to when the claimant should be re-examined.

However, it must be the case that the discretionary power to decide to redetermine the issue of LCW in Reg 19(7) and (8) of the ESA Regulations and the power, when doing so, to call a person to attend a medical in Reg 23 must, like all such powers, be exercised in a rational and reasonable (ie not Wednesdbury unreasonable) manner.

Also, I think the decision as to when to redetermine must be one for the SSWP and not for ATOS.

What may have happened in this case is simply that the SSWP sent the case to ATOS before the tribunal result.

However, I think there may be an argument that it would be unreasonable for the SSWP to fail to reconsider the referral to ATOS in light of the Tribunal decision and in the absence of any other evidence.

It might be worth doing a letter before action for judicial review to the DWP solicitors stating that the SSWP should reconsider the issue and notify the client whether they do need to attend.

It might be worth asking in that whether ATOS have any mechanism, once a referral for a medical has been made to them, for asking the SSWP to check whether that is really appropriate in the light of evidence that comes up etc.

Martin

I must admit, without claiming to necessarily understand the legal points raised by Martin, I was wondering exactly how Atos have the powers to force claimants to attend medicals when it’s for DWP to make decisions.

The division of power and authority was something that was a regular feature of debate when ESA was introduced, and there are various official statements to this effect in Hansard.

Reg 23(1) of the ESA Regs:

Claimant may be called for a medical examination to determine whether the
claimant has limited capability for work

23.—(1) Where it falls to be determined whether a claimant has limited capability
for work, that claimant may be called by or on behalf of a health care professional
approved by the Secretary of State to attend for a medical examination.

It was the same for ICB.  Failure to attend will cause the claimant to be treated as having LCFW, subject to the usual caveats.  Of course decisions on actual LCFW and any failure determinations must be made by the DWP subject to the usual appeal rights.  However, it is an extremely bad move contracting these powers out as it gives private profit making companies the power to summon vulnerable claimants almost on a whim, causing untold misery.  Does Atos get paid according to how many people it calls in or is it on a block contact?

Update of the case: the DWP have now stopped the medical. However, the person who called me back from the BDC sounded like she had her head screwed on right and was prepared to cancel the medical on my say-so. It was clear that technically, she was supposed to wait until the Tribunals Service informed the DWP in writing, which she admitted might be about two weeks’ time. I’m constantly amazed how computer systems that can cancel someone’s benefit in a second can’t report simple information to a claimant’s advantage as quickly…

i’ve seen a few cases where cls have closed their ESA claims - usually through a return to work - yet stil been summonsed to the WCA by ATOS who, i presume, have not been informed by DWP that said claim is now closed - not that it wuld be in ATOS’ interests to get as many WCAs performed as they possibly can of course…...