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Physical assessment

gh49gh49 Member Posts: 44 Connected
Hi 
I am at the stage between MR and appeal, all my papers etc have been sent, complaint sent to atos etc. Just a quick question, I asked the assessor NOT to do anything physical to my right lower limb side, she said ‘it won’t hurt’ and carried on ! Was she within her rights to do that? I had given her a letter from hospital which was under 2 weeks old confirming my severe pain ? Thanks for reading 

Replies

  • gh49gh49 Member Posts: 44 Connected
    I’m not sure if I have posted this in the right section please admin move it if need be 
  • wildlifewildlife Member Posts: 1,314 Pioneering
    edited November 2017
     @gh49 I am not a benefit advisor but I do know she was not within her rights at all. YOU have the right to refuse any, or even all, the physical examination. It's a good idea to state why as you did in which case she should not have continued. Add it to your complaint. Just to be aware that ATOS took 5 months to investigate my complaint and rejected my first letter on the grounds that what happened in the assessment cannot be proven as it's the assessor's word against yours. For the physical exercises you will have results on your assessment report of these that you wanted her not to do. So mention these by way of evidence. Hope that helps. 
  • gh49gh49 Member Posts: 44 Connected
    OMG I put it in my complaint I am ringing atos tomorrow, it says they must acknowledge complaints within 2days I’ve checked tracking and it was signed for on Tuesday, thanks wildlife 
  • wildlifewildlife Member Posts: 1,314 Pioneering
    If things haven't improved I'm afraid their timescales for responding are not adhered to. Do you mean you said about the exercises but didn't mention the results? I would wait for a reply with a reference number and the person dealing with your complaint as the people who answer the phone won't know anything, at least not this early. You don't need to take my advice do what you think best as I'm only saying what happened when I complained. Eventually they acknowledged that my first rejection was out of order and that the report hadn't been edited but as for the rest, according to them it complied with the DWP guidelines for assessor's. I did get to speak to the person handling my complaint but much later on when it had been allocated to a case worker for action. The complaint is now with ICE who are over a year behind in their investigations. They're so snowed under they're working on Sept. 2016 complaints. I would also try other ways like your MP, and online groups like fightback, Disability Rights. Even the law under the Data Protection Act isn't interested in what's happening. I would concentrate for now on dealing with DWP to get the correct award and think about your complaint as a separate issue but make it clear to DWP and the tribunal that you have complained to ATOS. The Appeal panel are only interested in your eligibility to PIP.     
  • gh49gh49 Member Posts: 44 Connected
    Wow that’s interesting what a total shambles the system is, thank you, you are right now I know I will concentrate on my award. I’m still gonna ring so it is on record that they have not adhered to their complaints procedure. Name date and time will be taken ! I’ve got a copy of my esa assessment 6 weeks after the pip one too which contradicts almost every point the atos assessor said about me, Dwp now have this too, thanks again 
  • JusticeJustice Member Posts: 206 Pioneering
    @gh49
    Good luck, sadly this sort of thing happens often according to what I have been told by others, and what I have read. Don't give up. I think @Wildlife is right to say treat the appeal, and the complaint as two different things, but let the DWP know that you have made an official complaint. Get your MP on board if you can. It clearly says in the guidelines that a physical examination should not cause you pain or distress, and you are within your rights to refuse all or part of it. It looks as though your assessor was breaking these guidelines. I am not an adviser either by the way, just someone going through the same processes as you are. :-)
  • mikehughescqmikehughescq Member Posts: 5,989 Disability Gamechanger
    edited November 2017

    Assessors cannot do any physical examination if you have provided them with up to date results of other recent physical examinations. You can find this in the DWP PIP assessment provider guidance online. They also have to obtain a separate verbal consent to undertake any such examination i.e. separate to the one you give at the outset which is the equivalent of "okay, I agree we can start". If they don't record your separate verbal consent to a physical examination then they have a problem and you have a valid complaint.

    If you didn't have or provide up to date functional outcomes then they can, but don't have to, do a physical exam. However, the manner in which that takes place, could certainly be subject to complaint. Bear in mind that the fact something causes you some pain or discomfort in itself isn't a winning argument. If they don't have anything else to go on then finding out your limits via pain, as long as no permanent damage is done, is valid if less than ideal.

    Indeed the guidance does not reference pain at all. Just distress and discomfort. You can see this for yourself at Https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/655611/pip-assessment-guide-part-1-assessment-process.pdf paras 1.6.35 to 44.

    I would also recommend that you do link the complaint and the appeal in the sense that you should ask HMCTS to not list the appeal until the outcome of the complaint is known and every aspect of the complaint should be included in the appeal papers. There are two reasons for this.

    One is that appeals often assert there can't have been anything wrong with the assessment else you would have complained. This is nonsense but nevertheless it is nonsense you have to tackle.

    Secondly, it's because a successful focused complaint can result in a different points recommendation and an "offer" before the hearing.

    HMCTS have such a backlog and such a shortage of tribunal members that they should have no problem with this. However, ask for a judge to issue directions on the point rather than leave it to clerks to not list only to find someone accidentally does.

  • gh49gh49 Member Posts: 44 Connected
    @mikehughescq @ @Justice Hi I'm back again, still trudging on with the struggle of my claim from 4.8.17 and still no decision !! (( fresh pip claim not been on dla )) I sent all forms for appeal in November and received a confirmation letter from Hmcts shortly after. beginning of March I decided to ring to see if they could tell me approx timescales on how long it would be before the hearing. I was told they were dealing with cases sent in 4 weeks ahead of me so should be 5-6 weeks. I sat back knowing I was well prepared, I've had plenty time lol. 
    A few days later tea time on a Friday (obviously) I received a phone call from a lady at  ATOS who said that Dwp and theirselves have decided I needed a new assessment, and I quote " the one that had been done is not fit for purpose "
    All I could hear were the words ANOTHER ASSESSMENT !! I suffer from bad anxiety and went histeriical on the phone. She said I had no choice because if I went to tribunal the judge would throw case out because "there is no assessment report" I said they WOULD HAVE TO COME TO MY HOME!! She said she would see what she could do because I'm not housebound! And hung up.
    anyway I got a phone call on the Monday asking if assessor could come to my home that week 16march. She came seemed genuine and did a thorough run through of my problems, was well clued up on what had gone on, big big complaint to ATOS which she said she had read. I got a text on 21 March to say they had the assessors report, straight away I rang for a copy which I received a few days later. Looking at report she scored me 13points for daily living and 12 for mobility. If they go by that then I'm over the moon. Assessor said about 4 weeks for decision. I received a letter from Dwp dated 30 March saying they had all info they need etc. I rang yesterday, still no decision but the guy on the phone said the best thing to do would be keep an eye on my bank account, he said IF IM AWARDED ANYTHING it's most likely I will see it in account before the letter drops on my mat.  Thanks for reading this, just if anyone can say, should I be hopeful? And gas anyone seen payment before letter ?
    thanks all.

  • mikehughescqmikehughescq Member Posts: 5,989 Disability Gamechanger
    Yes, it’s not unusual that the lump sum arrears goes in before a letter arrives.
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