Many Disability Benefits Claimants will have noticed on their ESA85 form a box containing the words “Harmful information – not to be copied to the client”.
Some will have understood this as being information which would be “likely to cause serious harm to the physical or mental health or condition of the patient or any other persons”, and in the context of consent to treatment, the GMC states:
“You should not withhold information necessary for decision making unless you judge that disclosure … would cause the patient serious harm. In this context serious harm does not mean the patient would become upset, or decide to refuse treatment.”
Or if they checked the contract between Atos and DWP, they would learn that harmful information “means information unknown to the Claimant which if disclosed to him may be harmful to his health”. And because “harmful information” is quite vague, in 2011 the DWP issued further guidance in the WCA handbook:
Harmful information: This is information which has not been disclosed to the claimant by their medical attendant, and of which they are unaware. It is information which would be considered as seriously harmful to their health if divulged to them and is the only type of information which under the regulations may be withheld from the claimant in the event of a review or appeal. Examples are details of:
Progressive neurological conditions
Major mental illness.
Revised WCA Handbook
ESA (LCW/LCWRA) Amendment
What claimants might not have envisaged is that this “Harmful Information” box could be used as a means to covertly influence decision makers or the tribunal appeals service by prejudicing a case.
Because of one DWP employee’s mistake or stupidity, one claimant who obtained his report was able to see what “harmful information” means for Atos and the DWP:
”Client very obnoxious, sarcastic and complained about the assessment format and the typical day. He stated that they are not relevant and asked that I contacted his Consultant. Claimant very unco-operative and makes the assessment very difficult. He kept taking his medication throughout the assessment”.
Underneath these comments, a DWP employee wrote:
When bundle of evidence is back from photocopying, please add this sheet to the submission for the TAS – DO NOT send to customer!
Harmful? Well unless being obnoxious and sarcastic are to be considered as a major mental illness, these comments amount to a subjective judgement, seen by the claimant’s lawyer as libellous.
But the comments are certainly harmful and would have had, as the claimant believes, a bearing on the outcome of his case (he scored 0 points), and because of fears of what this could do to his reputation and professional standing, on the advice of his lawyer, he decided not to appeal. Had he done so, these comments would still have been withheld from him and his lawyer, in accordance with DWP guidelines.
For this to happen, both the Atos HP and the DWP employee would have had to disregard the DWP guidelines, and it would also have escaped the scrutiny of any report auditors. This seems too much of a coincidence, (although incompetence in the case of the DWP and Atos can never be ruled out).
What are the implications?
1) It seems that the DWP, with the complicity of Atos, has found a way to circumvent the law it is supposed to uphold and to use it against the interests of people the DPA is supposed to protect
2) No claimant can be sure of what is contained in a report, if there is a parallel report which is withheld from claimants
3) Claimants and legal counsels go to appeals without access to all the evidence
4) The system is geared to trick claimants and cannot be described as fair, transparent or accountable.