Jan 112013
 

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:

­ Malignancy

­ Progressive neurological conditions

­ Major mental illness.

Revised WCA Handbook

ESA (LCW/LCWRA) Amendment

Regulations 2011

 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:

ADMIN
When bundle of evidence is back from photocopying, please add this sheet to the submission for the TAS – DO NOT send to customer!
Thanks
Anne
16/3”

 

 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.

 

 


 

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  14 Responses to “DWP and Atos make a mockery of the Data Protection Act: Annie Howard”

  1. I have formerly asked for a copy of the medical forms the Atos doctor filled out at my home back on Dec 2013 I made the request in April 2014 I have not had a reply so I am sending my second request soon.
    I was awarded an indefinite higher rate of DLA and middle rate care component.
    Why do they seem to be so scared of letting us have information about ourselves?

    My experience has been so different from most others on here although I have been in the system since August 1989 with multiple recurrent blood clots in my legs and lungs. my original Atos medical scored me zero points but soon after whilst waiting for a result I got another blood clot in my leg this changed the ball game for the DWP. My GP refused to supply a medical report to as it would make his workload to much to cope with, useless at most when you really need them Doctors.(just my opinion)
    It seems to me that if you type the letters DWP and then your illness name into Google you can look on their website to see if your illness is listed if it doesn’t list your illness you have a battle on your hands. if however your illness is listed it may well list what their actions should be at the bottom of the page whether or not they should award benefit and for how long. if you hate being contacted by telephone their WCA handbook says that the customer must ask in writing if they prefer to be contacted by letter or other means than digital means, I wrote to them asking them not to phone me simply because no-one would give me their full name and I do not answer the phone to withheld numbers. it can really stress you out every time the phone rings worried what the next bit of news is going to be, better to have it in writing much better and a heck of a lot less stressful until the dreaded brown envelope arrives on the doorstep.

  2. we need to get together and take them both on with the ICO and make it all transparent and recordable

  3. The Tories are not to the left of New Labour. The Tories, although it pains me to say so, have set traps for the Labour Party, in which the Labour Party have walked head-first into (eg re Welfare – I am happy to elaborate). The Tory Party are pursuing an ideology which, simplified, is the belief that you shouldn’t have something if you can’t pay for it. This ideology, effectively, is to get rid of all state control, have everything privately funded, thus enabling them to massively reduce taxation, with the possible ultimate aim of getting rid of taxation altogether. The net result of this, is that the cost of everything you and your family need has to be solely costed by what you earn. Eg If you earn £350 a week, this would also be your net take home pay. But, you would have to pay for everything you need – health needs, education etc; and street lighting, roads, policing etc would be funded by local communities (the more a community is well-off, the better the facilities they can afford). The Labour Party is currently like a headless chicken, as it abandoned its ideology when Tony Blair got rid of ‘Clause 4’, abandoning its commitment to ‘redistribution of wealth’.

  4. “Transcripts released this week by the Irish Independent record conversations in 2008 between leading Irish bank executives, joking about how they had scammed billions of euros to bail out the now-defunct Anglo-Irish Bank.”

    http://www.wsws.org/en/articles/2013/06/29/bank-j29.html

    The Tory party is to the left of New Labour…

    “However, Labour has one caveat: in alliance with the most vociferous sections of the ruling elite, it also wants pensions to be included in the future cap on welfare spending.”

    http://www.wsws.org/en/articles/2013/06/29/cuts-j29.html

  5. indeed thier days of truth are coming to them!!!!!

  6. s. anderson : I know it isn’t going to make it that much easier, but you are not alone and I went through a very similar experience. I honestly get sweaty palms and heart thumping every time I see one of those brown envelopes. I can’t stand to look anyone in the face anymore and have become a recluse because I’m so frightened of what people are thinking about me thanks to the nasty, cynical hate campaign lead by the coalition and furthered by the media and some members of the public.

    I tell myself I’m lucky because I’m still alive. I tell myself that, but I can’t believe it. They are mentally torturing us and making us even more sick, even lower in self-esteem, and much less likely to get well.

    Point 4 is everything the person in the street needs to know about this system.

  7. i had the same happen to me last year. they accidently sent me this information when i requested a copy of the atos medical report, i have severe depression and anxiety i went to an examination in january 2012 and when i saw this information this nurse had said about me it devastated me i spent months hiding away locked in my room i felt so low, miserable and depressed and back to square one, what she had said was really unfair and unjustified, throughout the report she had also made unfair comments like for example she said i was clean and tidy in appearance when in fact i hadnt bathed or changed my clothes in months many points throughout the report were unfairly written and she scored me only 6 points when it was visually apparent that i had difficulty looking after myself i didnt wash clean or care for myself my house was a mess and still is, when i had another assessment in the following september it was much fairer the person conducting it was fair and included all his findings and my responses outlining my problems that i had, i scored 24 points, that nurse shouldnt be working there after reading the harmful information she had wrote about me, its spiteful and simply wasnt true, its lucky i was made aware of what she said in that last page, i complained to atos and dwp about the unfair comments and findings and will avoid having a medical again with her in future, when i get a new medical sent through ive phoned atos and ive explained the situation to them and what this nurse said and did and they helped me book an appointment with a different assessment nurse when this particular nurse wasnt working that day , just in the case of people who have depression and anxiety people like this nurse actually make us feel worse antagonised and like there is no hope anymore when all we want to do is get better or live a better way of life, all the work psychiatrists, doctors, support workers and mental health workers goes to waste because of the stupidity of dwp and atos

  8. If the DWP are withholding information that they are routinely giving out, the DPA probably hasn’t been breached. People don’t have any automatic right to copies of their records and have to make a formal request under Section 7. On the other hand, if a person does make a formal request, the exemption for serious harm has to be signed off by a medical professional. If DWP withhold this kind of information without seeking the opinion of a medical profession after a formal request, they’re breaching Data Protection in a serious way.

    More importantly, if the forms really are structured with a ‘For DWP Eyes Only’ box, they’re asking for trouble regardless of how they handle DPA requests. Giving people an automatic option to keep things secret encourages this kind of unfair and prejudicial comment. This won’t be an isolated case. DWP should have had the sense to deal with potentially harmful information (of which there may be only a small amount) on a case-by-case basis, rather than encouraging secret comments.

  9. When I come to be assessed for PIP, I understand that they will not let you make your own recording of your assessment. If I cannot be accommodated and a recording cannot be made for me, I plan to smuggle my own machine into the assessment and make my own recording contrary to the rules. (What are they going to do? Send me to prison if they find out?) I am very forgetful, and cannot concentrate for more than 10 seconds. When my assessment is over, I will remember next to nothing of what has happened, and I think I have a right to make my own record. If that record can help expose a flawed procedure, I will not hesitate to make it available to any third party who can benefit from it. When it comes to my turn, probably they will do a full body scan for illicit recorders. I’ll hide my recorder on my carer, in that case…

    • You can make a secret recording but if you don’t tell them first, it cannot be used as evidence. HOWEVER you can take someone with you to take notes. Do this, then transcribe the recording to complete the notes. It is perfectly reasonable for you to use a memory aid to help you produce written notes, and these will be accepted by a Tribunal. At least unless they change the rules yet again. You can record on a mobile phone.

    • When it comes to PIP I intend to make it clear to whoever receives the form that I will be recording if they want a face 2 face. If they ask, or say, they need to do a search then I will refuse as I believe that the security guards can only do a search if permission is given, refuse and all they can do is deny access to the building at best, but this would IMHO constitute the company conducting assessments refusing to do the assessment as the security guard and company would claim they were acting on the instructions of their employer be it the DWP or other third party.

  10. Gosh what a sneaky trick!!! We’re so lucky you’re on the ball, I’d have missed that. I suspect the DWP create these sort of things so they can do what they want and sod the lot of us.

    They & ATOS make my blood boil.

  11. Scary stuff 🙁

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