my Email to Ed Milibands online team and the political ultimatum:
Over recent months I have become more and more concerned that the Labour party’s unwillingness to come out in direct challenge of the way the WCA has been implemented by the coalition.
As a long term disabled person, who is currently studying BSc (Hons) IT and Computing with the OU. Of which I was just allocated (Disabled Student Allowance) Grant for Several Thousands of pounds to cover the cost of modified computer equipment etc. Obviously you can imagine my surprise after going through such an extensive assessment to get that hardware from the DWP that I am then sent as ESA50 to complete. Obviously due to the nature of my disability I was unable to complete this myself, therefore after numerous telephone calls the DWP agreed to complete the form over the phone. Again to my surprise this document was not forwarded to me to sign (To give DPA authority) instead it was sent directly to ATOS Healthcare. This is where it starts to get interesting. I get a phone call from ATOS staff (From DWP Cardiff, I will mention more about that later). Offering myself an appointment. for a WCA medical assessment. Obviously I challenged this issue concerning the DPA authority and the ESA50 had never been formally completed with a signature).
The staff in question are only trained to make appointments (no other training) so this conversation was somewhat going around in circles. Eventually the day before the appointment (which I had already challenged) it was referred to their complaints section within Medical Services.
However the junior member staff (who called herself a ‘manager’) flatly refused to comply to statutory complaints procedure (namely suspending any action, until the outcome of an investigation) and terminated the call.
Subsequently I had to contact the ATOS telephony section in Cardiff again to have them rearrange the appointment (So I would not have my benefit terminated under Section 19 (3) Social Security Act 1998). On the following Monday my complaints where compiled by this persons actual manager (Who agreed to suspend all action until the outcome of that investigation).
Which seemed much more productive way forward, however the day before the second appointment I got a call from ATOS medical centre in Reading, asking if I wanted “to take an earlier appointment the following day as there had been a cancellation”. I highlighted to her what had previously happened and she said she would flag it up so that I would not be sanctioned.
A few days later I was issued with the standard failure to attend appointment documentation. I notified both the ESA migrations team and ATOS healthcare about this. Of which both teams to agreed to resolve the issue (This document has a 7 day window of response which ‘must be in writing’, which contravenes the Disability Rights Act, as no alternative is offered).
In fact they did nothing to resolve this, none of the communications where made available to the Low level Decision Maker (LLDM) within the ESA Migrations Team. Which issued me a Standard issue termination of benefit notice.
Now there are a number of legal issues concerning these notices.
1. They carry no DWP reference number. (Which is required to confirm it’s the genuine unedited document).
2. It is not signed by anybody (It should contain a signature by a qualified Decision Maker on behalf of the Secretary of State).
3. There is absolutely no reference to which section of law is being used to terminate the existing benefit (it’s actually Section 19 (3) Social Security Act 1998).
The issue over Section 19 Social Security Act 1998.
To quote said act.
Medical examination required by Secretary of State
Section 19 (3) “If the person fails without good cause to comply with the request, the Secretary of State shall make the decision against him.”
Which is entirely valid in respect of failing to attend or comply with a medical assessment, however let’s overlook for now that the WCA is not actually fit for purpose. The WCA is an assessment for the purpose of setting the category (if any) of ESA that a claimant shall receive. It is not a medical assessment as per a management review (Which requires a supersession decision) to re-award or reduce existing entitlement. As required by the SSA 1998. Therefore it cannot be used to terminate existing awards to benefits such as Income Support, Incapacity Benefit. Severe Disablement Allowance or as the majority long term sick and disabled are paid via the hybrid Incapacity paid as income support.
Getting back to my existing claim, when I first challenged the decision to terminate my existing award of benefit I was met by verbal abuse and lies from the low level decision makers in the ESA Transition Team. The reconsideration was refused, and they refused to allow a GL24 form for an appeal.
I repeatedly challenged this, ultimately resulting in it being transferred to the ‘complicated decision team’ (Another department in the ESA Transition Team). The head of department there placed it before another decision maker (along with my legal argument about the WCA process not being able to terminate my existing award of benefit under Section 19 (3) of the SSA 1998) and my incapacity benefit paid as income support was reinstated.
Now prior to this I had restated my position of removing my authority under the data Protection Act for my information to be shared with third parties without my consent.
This resulted in the senior manager being somewhat in a dilemma, as their guidance advice states that the case should be sent back to ATOS Healthcare, effectively setting up and indefinite loop as the law could not compel me to disclose my information to this third party.
I will clarify why ATOS Healthcare is a third party. Under the Data Protection Act, it allow for Data Controllers (In this case the DWP) and data Processors, staff or contracted organisations which handle and process data on behalf of the DWP. However since ATOS Healthcare don’t just process data. They offer an opinion, (on Advice sought) the ICO considers ATOS Healthcare to like a private health employment assessment. Which it deems as a third party due to the fact that they ‘offer an opinion’ which may affect a persons ability to obtain the place of employment (in the case of ATOS their opinion on the balance of probabilities will define if a person is or is not entitled to a specific benefit). Which effectively makes them a Data Controller.
To put this in simpler terms, as Data Controller the consent of the claimant is require before any information can be shared with ATOS Healthcare. The DWP however have been ignoring this and supplying personal addresses, Telephone numbers etc to this Third Party under instructions of the Coalition Government.
Since February 2012 I have continued to receive Incapacity paid as income support. Although the aforementioned manager referred this to DWP legal they have not been forthcoming with any resolution. Personally I think they are hoping it will just go away.
In respect of the Investigation that was alleged carried out by ATOS Healthcare. They exceeded the legal requirements for doing this. Then refused to investigate the complaints (they just sent a rather constructive time line of how they perceived the events) and handed the DDA issue to Medical Services (DWP Section). To investigate and reply. This has never actually occurred.
According to Income Support and Incapacity benefit (Who ultimately record what happens on an existing claim). My benefit was never terminated or reconsidered twice. They are totally bewildered by what is happening.
Basically Hundreds of thousands of existing disability benefit claimants are having an unsigned document sent to them, claiming to terminate their benefit legally and trying to scare them onto JSA. Those like myself who know this is not legal have been able to challenge this.
Resolutions required to get the Welfare Reform Act even slightly functional.
1. Existing claimants have to be automatically migrated, given the fact that the only reason this did not happen was because of Rt Hon Iain Duncan Smiths rather constructive wording as to the levels of fraud within benefits claims. There is no actual justification for not doing this.
2. The assessment phase is returned to indefinite awards or three year reviews on non-contributory ESA (It is the only system that is financially viable, otherwise the assessment process eventually outstrips the costs of the actual awards.
3. Bringing the WCA process back in house, and putting trust back with the family GP’s and consultants who are more than qualified to give medical opinions on the complexities of disability that a person may be suffering.
In the case of item 3, this puts investment in the UK. Let’s say that its £100 Million a year for WCA assessments (You can add nearly £4Billion for the real figure). However that’s approx. £90 million being moved offshore. Where as in house systems that rely on actual GP’s pay say £100 Million to people in the UK, of which around £98 Million gets spent or saved in the UK. It does not take an economist to work out which is more preferential in times of austerity.
We can talk of international trade and everything else. However when a Government starts tendering the inner workings of a country out to foreign national companies, it’s a leaking tap that just runs away with that countries finances.
That all said, I am now in a dilemma should the Labour Party actually not just talk rhetoric and really challenge what it happening then I can take a step back. However should it continue as is, then I am left with no choice but to formerly raise this with the ICO. At which point this will set a legal precedent.
A legal precedent in which if the population ‘just says no’ to sharing their information, the Welfare Reform Act (including universal credit) . NHS reforms etc will just come to a stalemate situation as this private information cannot be shared with other data controllers (Private Contractors) without consent.
Gen William Taggart