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Assessor Busted at Recorded Work Capability Assessment
Every ESA50 or UC50 I prepare includes the request -
‘Please make arrangements for my assessment to be recorded’.
And finally, I’ve got a case I’ve been waiting for with rock solid evidence that the assessor lied all the way through the assessment report (ESA85). I put in an MR and referred to the digital recording and it still came back with the decision unchanged. I’m guessing CM either didn’t pick up on the fact that a recording was made at the WCA or there wasn’t a tick box in his list that allowed him to deal with it. Call me cynical.
So my question is, how would members here approach the appeal to make maximum use of a transgression which shows beyond any reasonable doubt that the assessor and possibly the decision making process is on it’s knees in terms of credibility.
How far would you take it? ...How far could it go?
Few thoughts:
(1) My first thought is: So what? You can show that the assessment report is worthless but that does little to nothing in terms of proving that your client is actually entitled to the benefit. As far as Tribunal strategy goes, I think you need to fall back a bit and remember what the goal is here. It’s awfully easy to get so distracted by some outrageous thing that the other side have done that you forget to actually argue your case.
(2) The goal is to make the point about the report as efficiently as possible. The Tribunal are not going to be interested in sitting down and listening to the entire tape and comparing it point by point to the report. Better to transcribe a few key aspects and explain why they demonstrate the report is inaccurate. Ensure that the recording is available to the Tribunal if they do wish to listen to it.
(3) There are going to be very few (if any) instances where it will be helpful or appropriate to accuse anyone directly of lying or being dishonest even if you can prove it. Perhaps it might drive the point home if you are a known quantity to all of the local tribunal members and they realise it isn’t something you would say lightly - but otherwise it probably won’t help.
(4) However, that is all on the assumption that you are approaching this as a Tribunal case. Some people have had success in these sorts of cases by making complaints instead of (or alongside) appeals. It may be that demonstrable dishonesty has more weight as part of a complaint than it would at a Tribunal - it might lead to the DWP agreeing to do a new assessment or similar. So that might be another angle to take.
Hope that helps.
Few thoughts:
(1) My first thought is: So what? You can show that the assessment report is worthless but that does little to nothing in terms of proving that your client is actually entitled to the benefit. As far as Tribunal strategy goes, I think you need to fall back a bit and remember what the goal is here. It’s awfully easy to get so distracted by some outrageous thing that the other side have done that you forget to actually argue your case.
(2) The goal is to make the point about the report as efficiently as possible. The Tribunal are not going to be interested in sitting down and listening to the entire tape and comparing it point by point to the report. Better to transcribe a few key aspects and explain why they demonstrate the report is inaccurate. Ensure that the recording is available to the Tribunal if they do wish to listen to it.
(3) There are going to be very few (if any) instances where it will be helpful or appropriate to accuse anyone directly of lying or being dishonest even if you can prove it. Perhaps it might drive the point home if you are a known quantity to all of the local tribunal members and they realise it isn’t something you would say lightly - but otherwise it probably won’t help.
(4) However, that is all on the assumption that you are approaching this as a Tribunal case. Some people have had success in these sorts of cases by making complaints instead of (or alongside) appeals. It may be that demonstrable dishonesty has more weight as part of a complaint than it would at a Tribunal - it might lead to the DWP agreeing to do a new assessment or similar. So that might be another angle to take.
Hope that helps.
Right on the button. I know there is a certain satisfaction in showing up the assessor/DWP but the objective remains to get the best outcome for the client.
On a practical level, ask the tribunal to issue direction for the department to cough up the recording and to prepare a transcript if they are not in the appeal response. With luck, this may lead to a revision that lapses the appeal and saves the client the ordeal of a hearing.
On a practical level, ask the tribunal to issue direction for the department to cough up the recording and to prepare a transcript if they are not in the appeal response. With luck, this may lead to a revision that lapses the appeal and saves the client the ordeal of a hearing.
The questions I raised here are from the clt and my enquiry flows from that. I am in no doubt that my clt has an excellent chance of overturning the decision at the FtT. Not surprisingly clt was livid when he listened to the recording and read the ESA85. He wants to rush out and tell the world how DWP has cheated him, an understandable reaction in the circumstances. On the practical level, NAI, that was my advice at the MR appointment (and always is) but there was a dilemma for the clt, driven by his anger, between taking time to transcribe the salient points from the recording and really nailing the MR (with accompanying complaint) and getting his SG component back in payment. Easy to see why he chose the latter given his financial position, the current 4 month hearing queue, the availability of a further appointment and his difficulty travelling back to office again. Transcribing the recording would take up a huge amount of time and clt is not able to do that himself and so that would fall on LCA. I can deal with the wild assumptions and flawed evidence of the HCP without any difficulty and I can do that in quick-time. The dilema for me is deciding how much of my limited time (as a volunteer) do I invest in taking this further without knowing what the potential gains are for the clt.
Hence, how far would you take this? where could this go?
On a practical level, ask the tribunal to issue direction for the department to cough up the recording and to prepare a transcript if they are not in the appeal response. With luck, this may lead to a revision that lapses the appeal and saves the client the ordeal of a hearing.
The questions I raised here are from the clt and my enquiry flows from that. I am in no doubt that my clt has an excellent chance of overturning the decision at the FtT. Not surprisingly clt was livid when he listened to the recording and read the ESA85. He wants to rush out and tell the world how DWP has cheated him, an understandable reaction in the circumstances. On the practical level, NAI, that was my advice at the MR appointment (and always is) but there was a dilemma for the clt, driven by his anger, between taking time to transcribe the salient points from the recording and really nailing the MR (with accompanying complaint) and getting his SG component back in payment. Easy to see why he chose the latter given his financial position, the current 4 month hearing queue, the availability of a further appointment and his difficulty travelling back to office again. Transcribing the recording would take up a huge amount of time and clt is not able to do that himself and so that would fall on LCA. I can deal with the wild assumptions and flawed evidence of the HCP without any difficulty and I can do that in quick-time. The dilema for me is deciding how much of my limited time (as a volunteer) do I invest in taking this further without knowing what the potential gains are for the clt.
Hence, how far would you take this? where could this go?
To the next news cycle only.
An ‘isolated’ incident is unlikely to break the ‘system.’
On a practical level, ask the tribunal to issue direction for the department to cough up the recording and to prepare a transcript if they are not in the appeal response. With luck, this may lead to a revision that lapses the appeal and saves the client the ordeal of a hearing.
Hence, how far would you take this? where could this go?
I’d be inclined to follow the suggestion for a direction for the recording and transcript. they will then have to send you the transcript for the appeal (if they haven’t caved before then).
If it gets as far as you getting the transcript you and your client can then discuss whether to involve your MP/the press (frances ryan at the guardian?); if they cave before then, you still have the recording and can stll consider a complaint/mp/press/HoC relevant committee….
If it gets as far as you getting the transcript you and your client can then discuss whether to involve your MP/the press (frances ryan at the guardian?); if they cave before then, you still have the recording and can stll consider a complaint/mp/press/HoC relevant committee….
and complaint to the HCP’s relevant professional body…..
Hence, how far would you take this? where could this go?
I had taken this as a question about appeal strategy hence my answers above. I would try to just say enough to undermine the report and then move on.
NAI makes a good point about requesting directions for a transcript if you don’t have the capacity to make your own. I have seen one or two DWP-transcribed WCAs. And of course it might cause them to lapse the appeal in any case.
But if the question is things outside of the appeal process; then your client could go to the papers or the MP. They could complain to the DWP, to Atos and to the regulator (GMC/NMC/HCPC). They could talk to a lawyer about some sort of EA10 claim. Its up to you how involved you get in these sorts of processes - they are unlikely to deliver much for the individual client but might do some good in terms of social policy.
[ Edited: 17 Oct 2018 at 09:01 am by Elliot Kent ]I think everything depends on what type and level of discrepancies we’re talking about.
I have a line I use with clients which summarises Elliot’s original post and it’s that it’s possible to rubbish a HCP report page by page line by line but so what! If the matter proceeds to appeal then they’re usually kicking at an open door when it comes to the credibility of a HCP report and the bigger issue will be the weight of the opposing evidence and the credibility of the answers given on the day. They won’t wholly disregard the report. They will simply give it less weight. In itself that’s neither here nor there. What matters is the weight of your own evidence.
I further narrow what Elliot has said by suggesting to angry clients that they identify the 2 or 3 most obvious inaccuracies - you can’t prove someone lied. There’s a multitude of complex reasons why inaccurate records are made - and then focus on the strength of their own evidence. That deals with the clients desire to rage against the machine but also pulls the ultimate purpose back into focus.
It is always worth a written complaint about the HCP but I tend to focus that less on inaccuracies than breaches of assessment provider guidance. However, where an inaccuracy is demonstrable and would have directly changed a points score then that’s worth mentioning. I have had, for example, a HCP report reviewed twice with a 2 points recommendation magically changing to a 6 points recommendation.
A complaint to the professional body? I tend to wait and see what the outcome of the complaint to the assessment provider is. It’s worth remembering that there has been very public criticism of professional bodies failure to act in such cases. How much wasted effort does anyone want to expend, but in this case, once the recording has been transcribed, neither the assessment provider nor the professional body can fall back on the “we weren’t there so we can’t really say” argument. I see no harm in pursuing this up to a point but the very specific point is that if you mention a complaint as part of the appeal you do tend to look rather foolish if, even wrongfully, the outcome of the complaint goes against the client.
Hence, how far would you take this? where could this go?
I hope that this doesn’t sound patronising; if it does, I apologise.
I would be guided by what the client wants. I’d explain to the client that complaints, however aggrieved he/she feels, are a long and time consuming process and may not produce anything but a series of anodyne responses.
You also need to consider your availability and/or capacity. If you embark on complaints, it may not be the best use of your time; only you and your organisation can decide this,
For me, it appears that the goal should be to change the decision and I’d try to get the client to focus on this. Assuming the client agrees, I would use all the tools I have such as making the DWP do the work via a direction from HMCTS.
I would be interested in how this case works out.
Thanks to all for your thoughts, ideas and perspectives, they certainly answer my questions …and more.
I’ve dealt with many recordings of disciplinary hearings in the ET circuit where the employer would never be expected to transcribe what was effectively a clandestine recording made by the employee so it never crossed my mind to request directions for DWP to transcribe (the donkey work) but logically this seems like a great tactic, after all, it was DWP who offered the recording. I’ll certainly put this to the Clt next week as an option and will add it to our appeals information pack. I think that would go a long way to managing ‘realistic’ expectations. It also lightens the load for us as it wouldn’t have the impact on LCA resources that I had anticipated.
So, in a nutshell –
How far would you take it? …Not so far as to make a crucial difference to the appeal decision but far enough to force an early change of heart by the original DM..
How far could it go?
If it gets as far as you getting the transcript you and your client can then discuss whether to involve your MP/the press (frances ryan at the guardian?); if they cave before then, you still have the recording and can stll consider a complaint/mp/press/HoC relevant committee….
Thanks again, to all.
Just a thought on how far to take it; within my local Citizens Advice this sort of thing would probably be given to the campaigns and policy team - they deal with the complaint side / MP / media, leaving you free to get on with getting the benefits decision corrected.
Epilogue
Following all the great advice on the issue of WCA recordings, which I followed, I thought I’d share an interesting but galling outcome to the appeal.
A full transcript of the recording was sent in submissions well in advance of the appeal. We arrived at the tribunal and noticed a DWP rep hanging around. Just as we were called in, the rep came out of the courtroom having sat in on the previous hearing. The clerk then called us in and then put his hand up and said “Oh just a moment”. The rep then went back into the courtroom ALONE with the judge. Yeah, that’s what I was thinking too but I was a bit shell shocked to be honest.
After 30 seconds or so the rep came back out and the clerk signalled us to enter.
After the normal introductions and spiel, the judge invited the rep to open.
The rep simply said “It appears the DM did not shown how the condition has improved and did not properly consider Regulation 35, the case now is that Regulation 35 applies”
Judge immediately said, ” Thank you, and on that concession the appeal is successful”.
5 minutes and it was all over.
???
[ Edited: 3 Sep 2019 at 05:21 pm by WRT Case Worker ]The clerk then called us in and then put his hand up and said “Oh just a moment”. The rep then went back into the courtroom ALONE with the judge.
I think this bit of the whole case is the most worrying bit, more so than catching out an assessor “misinterpreting” what a claimant tells them.
It sounds as if the Judge offered the Rep an easy way out, to save the embarrassment of explaining why the DM and MR had accepted the AP report, knowing its accuracy to be doubtful. I can imagine the Rep seizing the opportunity with both hands as an alternative to trying to defend the indefensible.