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Friday, 2 December 2011

Atos HCP or DWP DM - who decides what????

I will not have been the first person to attend a WCA with difficulty walking only to find that the Atos HCP decides, contrary to my medical advice, that I'd be better off and therefore more able to work if I had a wheelchair.  My HCP's wording on the ESA85 was a little ambiguous, but not enough for the DWP Decision Maker to question it, so I was deemed fit for work etc.

Although I was aware that descriptor wording had changed, I did not for one minute imagine the references to wheelchairs was for anyone other than those people who regretably use one all of the time.  I was of course very "uncomfortable" about the principle of a DWP administrator contradicting expert medical advice.  I was also staggered at the suggestion that my life would be better in a wheelchair rather than not!!!!!!

The DWP DM had claimed just to have followed the Atos "recommendation", but as the HCP's statement was not a clear recommendation, I decided to first pursue this through Atos to clarify quite what it was the HCP was saying.  This is all part of being crystal clear about who is deciding what and therefore finally who is ACCOUNTABLE for what.  My question was:

"Could you please confirm that Ms XXXXXXX (the HCP) felt that my work capability would be enhanced being in a wheelchair, so it in fact amounted to a recommendation?"

The answer from the Atos Customer Relations Medical Adviser was:  

"The health care professional (HCP) merely advises the DWP Decision Makers of their opinion as to which of the mobilising descriptors might apply according to the descriptor definitions as laid down in the legislation and as summarised in the ESA handbook. This advice to the DMs is not in any way a suggestion or a recommendation to the claimant as to which aids, appliances or adaptations he may or may not benefit from, or may or may not consider using.
The HCP cannot provide advice to claimants about treatment or aids they may wish to deploy to help their specific medical condition, and it is not within their remit to provide advice about adaptations for possible employment.  That is for other health care professional who are involved with the customer's medical care."

Have you ever seen such an absurb contradiction? - watch this space, it will be interesting to see how DWP squirms around this one!.



Pmac said...

ATOS management and their paymasters at the DWP must be becoming increasingly nervous about the whole "imaginary wheelchairs" concept. The reason is a very recent judgment in the UT dated 20/10/11 (case ref: CE/1217/2011). I quote the relevant paragraphs in full...

"16. It seems to me that the correct approach to regulation 19(4) is as follows. If the claimant in fact normally uses a particular type of aid or appliance, then he or she must be assessed as though they were using it. If a particular type of aid or appliance has been prescribed or recommended by a person with appropriate expertise, the claimant must be assessed as though they were using it unless it would be unreasonable to use it. If the claimant does not use a particular type of aid or appliance and one has not been prescribed or recommended, then the decision maker or First-tier Tribunal is entitled to take the view that the claimant should be assessed as if using one, but only if one is normally used by people in that situation acting reasonably in all the circumstances and it would be reasonable for the claimant to do the same. However, I do not agree with the Secretary of State that in this latter case there does not have to be any explanation of how the aid or appliance could help the particular claimant and that the advantages are obvious. The degree of detail is a matter for the tribunal on the facts of each particular case, but in my view, in the absence of actual use or prescription, there does need to be some explanation.

17. For the above reasons this appeal by the claimant succeeds."

This is more important than it appears at first reading. In order to maintain this ridiculous fiction at an appeal hearing, DWP/ATOS will now have to EITHER show that the "aid" proposed has been prescribed or advised by a "person with appropriate expertise", OR get the ATOS assessor to write such a prescription for the claimant! (Or provide the Tribunal with some other "explanation".)

ATOS will never do this, because to do so would immediately expose their HCP's to the possibility of a medical malpractice suit.

The judgment given above should see these imaginary wheelchairs shoved back under the (imaginary) stairs where they belong.

Tia Junior said...

Brilliant & thanks, at last some sense. Actually I have always had a strange faith in the legal system in situations like this.

Bill Kruse said...

Let's not forget it was Yvette Cooper gave the ok to this 'imaginary wheelchair' legislation when she was Seccy of State herself. Have a look at the benefitsandwork blog April 13th a couple of years ago, it's detailed there.

Tia Junior said...

Indeed - the seeds of pretty much all of what we are seeing now were sown by New Labour and Ed Milliband's approach is no different.