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Absence of mandatory information
I don’t want to stray too far from the discussion in the other thread discussing MM & DM so here’s another one…
The ESA File Work guidance mandates ATOS to obtain Further Medical Evidence where there is a history of self harm or suicidal intent.
I have certainly never seen it in my appeal bundles. I’ve seen quite a lot of appeal bundles that should have had an ESA113 on them according to that guidance.
I wonder about the validity of the supersession decisions if the mandatory process has not been followed.
I don’t think ATOS are conducting a statutory function also it is simply “evidence” from an approved practitioner rather than an ESA85 conducted within an appropriate framework required to supersede; either of which might trouble my thoughts, but I need to mull it over all the same…
Am I correct to think ATOS are not performing a statutory role? I can’t see their function mentioned in Bonner or the ESA regs/WRA 2007.
Thoughts would, however, be appreciated.
small edit; someone with a history of “suicide” is unlikely to be troubled by ATOS…
[ Edited: 28 May 2013 at 06:49 pm by Dan_Manville ]Where primary legislation requires the Secretary of State to issue guidance on a matter then that guidance would have legal force and departure from it would be justifiable only in exceptional circumstances. I’ve not checked the status of the Atos guidance and whether it is internal to Atos or based on that issued by the DWP. If the former then I would submit that it has no statutory force. If the latter, then I would go back to the statute to see what is required for a lawful supersession. If the statutory requirements are met then failure to follow the guidance might not be a problem as a matter of law. My guess is that, as you hint at, it is an evidentiary issue which, if any appeal was disallowed, would become live for the UTT.
Where primary legislation requires the Secretary of State to issue guidance on a matter then that guidance would have legal force and departure from it would be justifiable only in exceptional circumstances. I’ve not checked the status of the Atos guidance and whether it is internal to Atos or based on that issued by the DWP. If the former then I would submit that it has no statutory force. If the latter, then I would go back to the statute to see what is required for a lawful supersession. If the statutory requirements are met then failure to follow the guidance might not be a problem as a matter of law. My guess is that, as you hint at, it is an evidentiary issue which, if any appeal was disallowed, would become live for the UTT.
Cheers Paul
This is guidance handed down by the Chief Medical Officer on behalf of the Secretary of State however I can find no statutory requirement.
The supersession requires “evidence from a HCP approved by the Secretary of State” as I remember; it’s pretty broad.
I’ve posted my misfeasance link on the wrong thread really but where ATOS have gleefully ignored a mandatory requirement I suspect such an action could be in play.
http://www.davidmarq.com/bama/misfeasance and tort.pdf
I need to read The Three Rivers Case.
Hi Dan
In Three Rivers the court stated that “the case law reveals two different forms of liability for misfeasance in public office. First there is the case of targeted malice by a public officer i.e. conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. It involves bad faith inasmuch as the public officer does not have an honest belief that his act is lawful”
And further on continues “reckless indifference to consequences is as blameworthy as deliberately seeking such consequences. It can therefore now be regarded as settled law that an act performed in reckless indifference as to the outcome is sufficient to ground the tort in its second form”. It’s this latter paragraph which is interesting here, but can reckless indifference be proved?
Hi Dan
It can therefore now be regarded as settled law that an act performed in reckless indifference as to the outcome is sufficient to ground the tort in its second form”. It’s this latter paragraph which is interesting here, but can reckless indifference be proved?
I’d noted that in the precis I’d linked to. If I can show wholesale failure to adhere to the Chief Medical Officer’s instruction I might just get there.
ETA: how I can translate “I’ve never seen one on an appeal in the West Midlands” into evidence before a Tribunal might be interesting; maybe I’ll ask “have you?” of the Tribunal. I can give a fair guess what the answer will be!
[ Edited: 29 May 2013 at 11:00 am by Dan_Manville ]Also, read the commentary to reg 6(2)(g) of the D&A Regs for the things tribunals ought to do to avoid error where the claimant contends that his condition has not changed.
Also, read the commentary to reg 6(2)(g) of the D&A Regs for the things tribunals ought to do to avoid error where the claimant contends that his condition has not changed.
Difficult where the MH descriptors have changed so much; most of my clients are looking at having been assessed under a different test than last time.
If anyone within West Mids fancies emailing me to confirm whether they’ve ever seen an ESA113 on an appeal bundle I would be grateful.
dan DOT manville AT wolverhampton DOT gov DOT uk
ta.
“Difficult where the MH descriptors have changed so much; most of my clients are looking at having been assessed under a different test than last time.”
Except for reg 29.
I work for a mental health charity
We regularly see suicide mentioned in the ESA85 contained in appeal bundles, but there is never an ESA113 (Do they exist)
Perhaps it may be worth writing to the ESA DM for a supplementary submission as to why one was never requested when clearly the guidance says it should in such cases (With a copy of the request sent to HMC&TS; at the same time)
I will certainly try this and then let you all know what happened (or didn’t)
Hi Steve
Do you know which medical services office covers your area?
Atos Healthcare - Bootle, Liverpool
More specific.
Postal address
Atos Healthcare
PO Box 34
Bootle DBC
Jupiter Drive
Chester
CH70 8DP
Also just sent a request that an ESA 113 be obtained - let’s see what happens