At that tribunal the patient must demonstrate that the ATOS report is not true for the above reasons. It is permitted for the patient to be accompanied by a friend to witness the assessment, but an audio recording would be the ideal proof. Unfortunately ATOS have made it nearly impossible for anyone to record their assessment.
Many people have attempted to record their assessment using mobile phones, digital sound recorders or dictaphones. Nearly every time ATOS have halted the assessment and refused to continue while being recorded. On some occasions the patient has relented and stopped recording, on others they have been asked to leave and their report has stated that they did not attend their assessment, resulting in their benefit being stopped.
In a response to a Freedom of Information request made at the end of 2010 the Department of Work and Pensions provided the official guidelines to ATOS staff regarding recording of assessments. The most important parts are quoted here.
"Such a request can only be agreed with the prior consent of the HCP, and then only if stringent safeguards are in place to ensure that the recording is complete, accurate and that the facility is available for simultaneous copies to be made available to all parties present. The recording must be made by a professional operator, on equipment of a high standard, properly calibrated by a qualified engineer immediately prior to the recording being made. The equipment must have facility for reproduction so that all parties can retain a copy of the tape. The responsibility for meeting the cost of the above requirement rests with the claimant"From this it is clear that recording by the patient will not be permitted, will result in the assessment being stopped and might result in legal action by ATOS. What is strange is the circumstances in which they will allow recording. It must be
"It is for Atos Healthcare, in conjunction with their legal advisers, to determine the action to be taken in the event of a claimant making an audio or video recording without the prior knowledge and consent of the HCP, or without ensuring that the safeguards defined above are in place"
"If you suspect a customer of trying to film or record an assessment the following action should be taken
Advise the customer that such action is not permitted, explain why not, and ask them to switch the device off. If the customer refuses to comply:
- The assessment should be suspended
- Inform your site manager and/or medical manager immediately"
- Recorded by a professional operator
- on professional equipment
- immediately duplicated in front of ATOS staff
- paid for by the patient
This is obviously impractical to arrange and priced far out of reach of the patient, who is receiving Employment and Support Allowance to live on, at approx £60 - £100 per week.
In a court case in June 2008 a judge ruled on a patient who had been denied benefit and lost his appeal after ATOS reported that he did not attend because he attempted to record his assessment. The judge ruled that he should be allowed to start his assessment process all over again, because he had not been advised that he could arrange for recording of the assessment in stricter circumstances. What is interesting is the other comments by the judge in his findings.
45. The appellant makes a number of good points in this context. He draws attention to the considerable (and probably prohibitive) cost that would be involved for an individual living on benefits in meeting the Department’s restrictive criteria. He rightly points out that those conditions (which include the presence of a qualified engineer) are actually stricter than those in place for police interviews with suspects. He might also have added that the Department’s own protocols for interviewing claimants under caution in the course of benefit fraud investigations do not require the presence of a qualified engineer (although dual-tape machines and sealed tapes are used).
Let me repeat that: ATOS' requirements are stricter than those for police interviews, and stricter than their own interviews for benefit fraud applications.
So, we get to the really important question. Why do ATOS make it so difficult to record assessments?
There is one relatively good reason. They are worried that a single recording taken by the patient could be digitally altered and then presented before a tribunal as proof. They wish to counter this by having a duplicate recording in their own possession. This does seem a reasonable request, but their chosen methods are over the top and unnecessary.
ATOS also state that "Medical Services view unauthorised and secret recording to be an invasion of privacy." Now, if this were a private conversation between two friends, that might be the case. But this is not. This is an assessment carried out on behalf of the government and with life-changing consequences for the patient. It often starts a process which ends up in the legal system. In these circumstances, it is wrong to claim that recording is an invasion of privacy. In an assessment as grave and important as this, are they really saying that the assessor is going to say something which should not be reported, and that he won't do so when officially being recorded? Because to me, that suggests that they think their staff might be unprofessional in their behaviour.
I think ATOS is clearly wrong to obstruct recording of Work Capability Assessments. At best, this is an uncaring attitude which shows lack of respect for the patient or of any concern over the outcome of their benefit claim. At worst, this is wilful obstruction of justice and a prevention of a proper outcome at a tribunal. There is a simple solution to this. ATOS should allow every patient to record their interview in any way that they wish to, openly so that their staff need have no concerns about privacy. If they are worried about a recording being altered to be used against them, then they should also record every interview themselves. They need not go to the expense of dual recording equipment if they allow patients to make their own recording.
Of course, they won't do this. ATOS must be fully aware of the failure rate of their assessments and the large number of successful appeals against them. They know that if a large number of recordings were to be made, they would be shown up by the vast contradiction between what is said and what is recorded. They would be shown to be either incompetent or to have an agenda against benefit claimants.
This has been cross-posted from the authors blog at www.latentexistence.me.uk