Benefits Medical Examinations
How to deal with Benefits medical examinations
NEVER FACE THEM ALONE
Here we describe how claimants for disability and sickness benefits can deal with the medical examinations by medical professionals, which for many claimants are central in deciding whether or not you are entitled to disability benefits.
BEFORE THE EXAMINATION
The examinations are run by Medical Services (MS) which is operated by the private company ATOS on behalf of the Department of Work and Pensions. You have the right to have the interview/examination recorded, and we strongly recommend you do this. You need to request this in advance. At the end of the examination you will be given a copy of the recording.
Before you go to your ATOS medical it is very important you take with you as much medical evidence as possible, including if possible a letter of support from your GP stating you are not fit for work, and any specialist/ consultant reports you have which indicate you are not fit for work. If the ATOS examiner refuses to accept any of this information you should make an official complaint as soon as possible, and certainly before you are informed of the result of the exam.
Before a MS examination your own GP sends info to the DWP. It is important that this info is as full as possible and states clearly whether or not in their medical opinion you are fit for work at that time and in the forseeable future (at least 6 months ahead).
It is frequently the case that people with a long-term illness gradually minimise in their own minds the effect of their illness on their everyday lives and develop survival strategies to cope on a daily basis in an attempt to lead as normal a life as possible.
This can cause a problem as this habit when taken into a medical examination does not present a true picture of the illness and could be misleading. It might be helpful to discuss the reality of your illness and the limitations it imposes on your life with someone who knows both the illness and yourself well. The reality of your illness is what must be presented to the ATOS medical professional and to the DSS.
If you have a Medical Services examination, either at the MS office or at your home, always have someone accompany you. This is your right. We have often done this. They cannot refuse you this right - if they try then just insist you need someone with you.
To obtain benefits you are legally required to attend this examination, and the information obtained at the examination is used, within a legal framework, to decide on your benefit entitlement - it is therefore vital to make sure your legal rights are protected.
If the date for the examination is not suitable, eg your accompanying person cannot make it on that date, you can get the date changed. If you are unable to travel to the examination you can ask for a home visit instead. If you change the arrangements over the phone write to confirm the changes. You have the right to be seen by a Doctor of the same sex.
Meet the accompanying person beforehand to discuss what's going to happen. Before the examination you should be clear that -
- the examination can be halted to allow you to go to the toilet, have a glass of water, take a pill, or if you feel faint or ill. The examination should only proceed if you feel happy to continue.
- you should refuse to do anything that hurts or distresses you.
The person accompanying you should take a pen and paper and also a watch. If possible, take a tape recorder. Peter Mathison, then Chief Executive of the Benefits Agency, has stated that the taping of medical examinatons can be carried out. Take your medicines, and any aids you use, such as a walking stick or crutches.
You can claim travel expenses for going to the examination - but if you need to take a taxi you must contact the MS beforehand.
Please note - you will be asked how you travelled to the examination and if you took the bus then this could well be used against you, for example as "evidence" that any mobility or mental health issues you have are not sufficient to stop you being "fit for work".
RECORDING THE EXAM
Thanks to Jim Otram for spotting a Freedom of Information Act response which shows that the DWP received advice in 2010 that obliging people to hire a sound engineer to record their medical was likely to be unlawful. According to the DWP document, claimants should have the right to a recording not just of ESA medicals, but of all medicals including ones carried out in their home.
So, the fight is now on to get DLA and PIP medicals recorded. Capita have already said they will do so for PIP in the area of the country they’re responsible for, so it’s time to step up the pressure on Atos. Why not fire off a Christmas complaint to your MP about the DWP ignoring its own legal advice and the rights of sick and disabled claimants?
AT THE EXAMINATION
You should be aware that the examination begins on entry to the examination centre and does not end until you leave the centre. An evaluation of your medical condition does not only take place when you are in front of the examing medical professional, but also potentially on your way into the building, in the waiting room, and on your way out. They could note the length of time you can sit without apparent discomfort, how you pick up your bag, etc..
At the examination the medical professional should
Be courteous and considerate.
Spend some time explaining the purpose of the examination.
ASK if you are willing to be examined.
Ask you and give you time to explain YOUR OWN VIEW of how you are affected by your condition, including how it affects your ability to do day to day tasks like shopping, cooking, cleaning and so on.
The medical professional should not attempt to 'manipulate' parts of your body.
During the examination you should
Make sure the medical professional realises the full extent of your illness/ disability, including any other conditions/ illnesses you may have. Remember, unlike your GP, this medical professional does not know your medical history. Give the medical professional any letters or documents you have from your GP or other medical professionals detailing the extent of your illness/ disabilities.
Describe how you feel on a "bad day", rather than on a "good day".
Be aware that if you have mental health issues, then the medical professional will be evaluating not only what you say but how you behave, for example how you interact with him or her, whether or not you maintain eye contact, give appropriate responses, etc. In other words, if by a huge effort you manage to act "normally", then this could be used against you....
If you are accompanying a claimant, then you should
Write down the name of the medical professional, their qualification eg if they are a nurse, doctor or physiotherapist, the place of examination, the time of starting and finishing the examinaion.
Take notes on everything the Doctor and the claimant say, what the Doctor asks the claimant to do, what happens. Especially note any aggressive attitude or manner adopted by the Doctor. Note the exact words spoken.
Intervene and ask for the examination to be halted if the claimant becomes unwell or distressed. The claimant should have a break until they feel well enough to continue.
Object to and stop any attempt by the Doctor to have the claimant do exercises which could injure or distress them. You should have the examination stopped if the claimant is becoming ill or distressed for any reason. If the claimant is not fit to continue then the examination should be postponed until another day.
If the claimant's distress is due to mistreatment by the doctor, stop the interview, then say that you will be making a complaint with a request for an examination at a future date with a different medical professional.
Time the length of the examination and any breaks taken (some medical professionals have been known to exaggerate the length of time of the examination to make it appear more thorough than it was).
At the end of the examination ask the medical professional to read back their notes, to check they made an accurate record. If the medical professional refuses, then note that and what reason he/she gives for refusing. If there seem to be any inaccuracies in the notes, check with the claimant, then if necessary ask the Doctor to change their notes. If they refuse then make a note of that, writing down exactly what they said.
AFTER THE EXAMINATION
If the medical professional did anything wrong, then as soon as posible afterwards write a letter of complaint to the Medical Services and to the DWP - don't wait for the decision to come through. The letter should be signed by both the claimant and the accompanying person. There is more info on making a complaint in the Disability Rights Handbook (Disability Alliance), or contact us.
If following the ATOS test, the DWP inform you are not entitled to Employment and Support Allowance, or you are placed in the "Work-related activity group" when you should be in the "support group", then it is vital to appeal. You need to appeal immediately, in order to keep your ESA while the appeal is processed. The initial appeal letter can just basically state you are appealing, with more info to follow.
We recommend going to this link to download draft letters to your GP to request assistance in your appeal.
IMPORTANT! BLACK TRIANGLE & DPAC REGS 29&35 CAMPAIGN: FAILED YOUR DWP/ATOS WCA & INTEND TO APPEAL? DOWNLOAD THESE DOCUMENTS FOR YOUR GP!
HOW YOU CAN BE FOUND INCAPABLE OF WORK EVEN IF YOU DON'T SCORE ENOUGH POINTS
Even if you don’t score enough points under the personal capability assessment – the medical test to decide if you’re incapable of work – you may still have a chance of being found incapable of work either at claim or appeal stage. This is because of the little known ‘exceptional circumstances’ rules.
There are a number of these, but probably the most important is regulation 29 (2) (b) which states that a claimant is to be treated as having limited capability for work if "there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work." (The Employment and Support Allowance Regulations 2008)
This regulation could apply to you on physical health or on mental health grounds.
For example, if you experience severe anxiety attacks and might harm yourself or somebody else if placed in a situation you find threatening, then this might be grounds for applying regulation 29 (2) (b).
Or you may have a lung condition which is made much worse by stress and, in the past, such situations have led to a serious deterioration in your health and perhaps hospitalisation. If you would find being found capable of work, having to sign on for Jobseekers Allowance and take part in training or work experience very stressful, then that may be grounds for declaring you incapable of work under the exceptional circumstances regulations.
However, neither doctors nor decision makers are quick to identify people who might be covered by these clauses. And very few claimants even know they exist. The Black Triangle campaign highlighted above aims to bring these clauses to the attention of claimants, doctors and all concerned.
In addition to regulation 29 (b), Regulation 35 (2) (b) gives similar grounds for being placed in the ESA Support Group rather than the Work Related Activity Group. Both Regulations 29 and 35 are reproduced at the end of this article.
ATOS AND THE BIGGER PICTURE
ATOS are currently recruiting more staff to help meet Government targets to force more people off disability benefits to reduce the public debt problem caused by banks gambling in the financial markets. The process is driven by cost cutting not objective medical opinion. The most vulnerable in society are being made to pay for the greed of others and the inevitable booms and busts of capitalist economics.
Medical professionals, including physiotherapists, with no experience of mental health problems, for example, are only given a matter of days training before making assessments of claimants. They are paid substantially more than NHS doctors and nurses for leaving their ethical concerns at the door. ATOS claim that they do not make the decision as to whether someone can work and have their benefits reduced, but that the decision is made by the DWP from their report and that performance targets are based simply on the number of claimants seen in a day. However they admit that if a medical professional passes all claimants for disability benefits it will not go unnoticed.
We encourage and aid claimants organising together, and linking up with workers in employment, to oppose and take action against these government policies. Why should we put up with a system where everything is run for the profit of a rich elite? Why shouldn't society's resources belong to everyone, and be used for people's needs?
You can view or download the user instructions for the ATOS Lima computer assessment here: http://afteratos.org/wp-content/uploads/2011/05/LiMA-v2-Technical-Manual.pdf
BENEFIT AND WORK SITE: Free information on Disability Living Allowance and Incapacity Benefit including physical and mental health tests and decisions.
Excerpts from The Employment and Support Allowance Regulations 2008
29.—(1) A claimant who does not have limited capability for work as determined in accordance with the limited capability for work assessment is to be treated as having limited capability for work if paragraph (2) applies to the claimant.
(2) This paragraph applies if—
(a)the claimant is suffering from a life threatening disease in relation to which—
(i)there is medical evidence that the disease is uncontrollable, or uncontrolled, by a recognised therapeutic procedure; and
(ii)in the case of a disease that is uncontrolled, there is a reasonable cause for it not to be controlled by a recognised therapeutic procedure; or
(b)the claimant suffers from some specific disease or bodily or mental disablement and, by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work.
Source for Regulation 29 here
Certain claimants to be treated as having limited capability for work-related activity
35.—(1) A claimant is to be treated as having limited capability for work-related activity if—
(a)the claimant is terminally ill;
(b)the claimant is—
(i)receiving treatment by way of intravenous, intraperitoneal or intrathecal chemotherapy; or
(ii)recovering from that treatment and the Secretary of State is satisfied that the claimant should be treated as having limited capability for work-related activity; or
(c)in the case of a woman, she is pregnant and there is a serious risk of damage to her health or to the health of her unborn child if she does not refrain from work-related activity.
(2) A claimant who does not have limited capability for work-related activity as determined in accordance with regulation 34(1) is to be treated as having limited capability for work-related activity if—
(a)the claimant suffers from some specific disease or bodily or mental disablement; and
(b)by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work-related activity.
Source for Regulation 35 here