I have not set this out as a full procedure yet as there are so many variables which required my level of stubbornness to get past. As soon as I have the real outline of a process I will post all of it. The last thing I want to do is to get peeps sanctioned for non compliance. However there are a few certainties at the moment.
1. Complete the ESA50 questionnaire, but do not sign it (In this manner you are not authorising any third party or other data controller to have your information. Return it to the DWP not ATOS.
2. When called for a WCA appointment, contact them and confirm that you have not given any authority for your information to be used by ATOS Healthcare (You did not sign the ESA50, or give it to them). Remind them that they are a ‘Data Controller’ not a ‘Data Processor’, so they need your written authority to access your information.
3. Always keep rearranging the appointments as Medical Services do not comply with statutory complaints procedure (Above all do not trust what they tell you, no matter how polite they are, always get it backed up in writing).
4. More often than not they will refer it to the DWP as a ‘no show’. Make sure you respond quickly to the written notice for evidence as their is only a 7 day window. Just Explain:
a) “I never gave written authority for the sharing of my information with another Data controller” (Emphasise that “ATOS Healthcare offers an opinion which on the balance of probability will alter the outcome of your award’, this may seem odd but the wording is crucial as it makes them a Data Controller under the DPA),
b) ” I am not refusing to be assessed, however I have no confidence in the organisation offered on behalf of the Secretary of State, therefore I agree to be medically assessed by an organisation which is mutually approved”.
5. Often the front end decision makers in the ESA migration team will terminate your existing award (ignoring all evidence). Issuing a termination notice and invitation to claim JSA. If previously awarded Incapacity Benefit (IB), Income support (IS), Severe Disablement Allowance (SDA) or IB paid as IS. Then this notice of termination is notice is not legal. Therefore challenge the termination (To the ESA complicated decisions team, as a ‘reconsideration’).
a) The notification carries no reference number other than your NI number (it is not an official notice).
b) it carries no reference to under what section of the law in which your existing awards are being terminated.
c) a WCA examination in this case is for the purpose of migration to ESA, therefore failing to attend, would only result in non award of ESA. It does not however supply sufficient new evidence under the Social Security Act 1998 for a Super Session. Therefore your existing award cannot be legally terminated in this manner.
It can be quite a battle with them, ATOS’s complaints procedure (or compliance to statutory complaints procedure) is somewhat of a joke.
More often than not the Junior DWP decision makers take ATOS’s word for it and an do not read the evidence.
This ultimately places them in a quandary, their rules say they have to reinstate your benefits, they also say they have to send it back to ATOS, but doing so after you have removed your DPA authority would not only be pointless, it would actually be illegal on their part.
Please Remember their are risks with this, they will try and trip you up, you are never refusing to be assessed, you just want to be correctly ‘medically assessed’ so that the secretary of state can be supplied accurate information.
Above all do not trust them, keep checking with ESA, IB and IS departments all the way through the process. When doing so, also verbally go on record (Note the date) that you have removed your authority for the sharing of your information with third parties or other data controllers.