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Disability discrimination at assessment (Equality Act)

Tara100
Tara100 Member Posts: 16 Connected
edited March 2019 in PIP, DLA, and AA
Hello

I've been looking over the Equality Act for the purposes of a disability discrimination complaint, and cannot work out which type of discrimination my matter falls into. I wonder if you could advise please?

So many unbelievable events took place my assessment, and the nurse refused to discuss my mental health issues, and other crucial matters.
She would not look at any of my medical or psych reports taken with me either, which span over 8 years.
She also scoffed at me when I tried to discuss my incontinences, would not let me speak of anything freely, and refused to budge from her onscreen script, saying she had a time allowance to keep to.

She told many lies about my composure, even stating in her report that I "did not present as tearful", when I sobbed so hard that she tossed a box of tissues towards me.
Anyhow, as I knew it would be as I left the room, my award was then downgraded.

Independent Assessment Services held a thorough investigation, and have admitted by letter that my assessment was 'not robust' and that the nurse failed to properly conduct the assessment. She wrote nothing in her report regarding my mental health to back this.

I have been offered another assessment and exhausted my complaint with them, and been told to go to I.C.E. - I have had an interim appeal court hearing, where the judge has agreed that I should be put through no more, and that she will assess me herself in the next month or so. I believe this is unheard of, but i was grateful to hear this.

Under the Equality Act, there are six kinds of unlawful discrimination:

 direct discrimination.

 harassment.

 indirect discrimination.

 failure to make a reasonable adjustment.

 discrimination because of something arising in consequence of disability.

 victimisation.

It's a heavy read, and my mind isn't up to it. I cannot work out which of the six types the discrimination falls under.

DWP also refuse to remove the 'non robust' assessment from my file, and this I believe is also discriminatory, as a future assessor always looks back at the findings of the last, and will be naturally swayed. This means I will be in a forever loop of what I feel will be perpetual victimisation throughout future claims.

Any thoughts please?
Thank you
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Comments

  • wilko
    wilko Member Posts: 2,449 Disability Gamechanger
    @has Tara100, hello and welcome, proving discrimination under your circumstances is and would be a difficult thing to prove. The acessors are tied to an approximate time allowance for each acessment and for you to arrive at your acessment with documents going back years to support your application and expect the acessor to read through their entirety to gain a better overview of your mental health conditions. As you know you had the opportunity to send in extra evidence with your application for the benefit which should have been scaled down to show bullet points and highlights of your conditions. The acessor comes across as insensitive and  to ridged in her approach to conducting your acessement, regarding the comments of future acessments to be of a robust nature I don’t think or believe it was stated or recommend in a discrimination way but that your case should be fully investigated and proved. Hearing people’s comments and reading posts on this forum it is becoming apparent that mental health is going to get worst in this country starting with school children on into adulthood through lack of cumincation between their peer groups and the increase in the use of technology causing immersive addiction and isolation form society.
  • Markmywords
    Markmywords Member Posts: 419 Pioneering
    Sorry but I don't think there is much more you can do here.
    Firstly, the benefits system has its own court oversight which you already seem to be using. Secondly, all applicants present as being disabled so how could it be proved that you were discriminated for it? Finally, malfeasance by a public body, when there is no other route, is done by a Judicial Review.
    You seem to have a very fair judge on your case so I'd suggest you pursue that. They will take the matter out of the hands of the DWP. You can also ask for an extended/indefinite award if that is proper and that would prevent the DWP from endlessly reviewing your award downwards.
    People who have won at tribunal seem to be treated with kid gloves by the DWP from then on. The fact is that the DWP has an agenda to lower the benefits bill by any means.
  • poppy123456
    poppy123456 Member Posts: 28,522 Disability Gamechanger
    8 years worth of medical reports is an awful lot of evidence. To expect the HCP to read through all of that during your assessment is a lot to ask. Even reading through that before an assessment, is asking a lot. Sometimes with evidence less is more.
  • yanni
    yanni Member Posts: 53 Courageous
    Hi
    The Equality Advisory and Support Service would be able to advise if what you experienced at the assessment was illegal discrimination or not.

    www.equalityadvisoryservice.com/app/home

  • cristobal
    cristobal Member Posts: 987 Disability Gamechanger
    @Tara100 - I agree with @markmywords ..... 'discrimination' is treating someone different because of a particular quality - ethnicity, disability, gender etc. and it will be difficult to show that you were treated unfairly when, by definition, the assessor only deals with those who have some level of disability...

    It may be worth asking yourself what your expectations are - i.e. what do you expect your complaint to achieve, that hasn't been dealt with already?


  • Tara100
    Tara100 Member Posts: 16 Connected
    edited March 2019
    Rather than answer everyone separately, I'll respond to points in one reply.

    I didn't take 8 years of evidence with me, It's on DWP's records, but importantly, fully detailed on my previous assessment for the nurse to have seen.
    Is it acceptable for the nurse to ignore all my MH conditions, refusing to discuss them, when my claim is based around MH?

    Also to say I don't have a case, is also shocking. I guess no one has read any successful same cases online, for MH discrimination at assessment, such as the one here:
    https://www.disabilitynewsservice.com/disabled-solicitor-launches-ground-breaking-legal-case-over-pip-discrimination/

    I have been in touch with the equality advisory service already, and just get signposted to CAB, then CAB tell me "This is too much for us"

    Re being treated with 'kid gloves' once an appeal is won is incorrect in my case. In 2016 I applied for appeal, and DWP / PIP backed down, and paid the award I claimed for before the case went to court. 

    I did not try to talk about anything unnecessary. The nurse only wanted to quiz me on how far I could walk. Even when I answered this, she said in a disputing tone "so you can only walk the length of two double decker buses?!" In her report she wrote very little. The response boxes were all near empty, but she fixated on my shoes, stating that they were made of rubber (when they were leather) and that slip on shoes 'would not be worn by someone with a bulging disc'. I have to wear slip on shoes as I cannot bend to tie laces, which was explained at the assessment.

    Refusing to believe I suffered from any incontinences, and mocking me, she decided to test if I was incontinent she placed her hand at my genital area, and asked me to squeeze. Then she said "There's nothing wrong with you!" - As I was treated differently to others at assessment because of my disabilty, this is discrimination. Even I.A.S stated in the beginning of their investigation, that the nurse should not have put her hand on my crotch, and "this is over and above what an assessor is allowed to do" (she of course denies it, stating, someone else must have done it to me somewhere else, and I am confused)

    I think this covers the points raised above ?

  • Markmywords
    Markmywords Member Posts: 419 Pioneering
    You asked for thoughts and you got them. If you wish to reject them, what was the point ?
  • Tara100
    Tara100 Member Posts: 16 Connected
    You asked for thoughts and you got them. If you wish to reject them, what was the point ?
    There's really no need for that comment. I was simply clarifying points, and responding to comments made. 
  • Tara100
    Tara100 Member Posts: 16 Connected
    ilovecats said:
    Tara100 said:
    You asked for thoughts and you got them. If you wish to reject them, what was the point ?
    There's really no need for that comment. I was simply clarifying points, and responding to comments made. 
    If the nurse behaved like that then she should not have and all the assessment we do should be hands off!
    She truly did do it, and I can only assume she did it to see if I was actually wearing an incontinence pad, as her 'test' was of no actual use; being able to clench my upper thighs together, does not mean I am not incontinent.

    As a disability advisor pointed out to me, what if her touching had caused me to wet myself? I would have had to go home in a taxi in urine soaked clothes.
    Also her hand would be soaked - there was no wash basin in the room, and she would have had to leave me in the room, to go and wash herself.
  • Tara100
    Tara100 Member Posts: 16 Connected
    edited March 2019
    ilovecats said:
    Tara100 said:
    ilovecats said:
    Tara100 said:
    You asked for thoughts and you got them. If you wish to reject them, what was the point ?
    There's really no need for that comment. I was simply clarifying points, and responding to comments made. 
    If the nurse behaved like that then she should not have and all the assessment we do should be hands off!
    She truly did do it, and I can only assume she did it to see if I was actually wearing an incontinence pad, as her 'test' was of no actual use; being able to clench my upper thighs together, does not mean I am not incontinent.

    As a disability advisor pointed out to me, what if her touching had caused me to wet myself? I would have had to go home in a taxi in urine soaked clothes.
    Also her hand would be soaked - there was no wash basin in the room, and she would have had to leave me in the room, to go and wash herself.
    Just so you know, not all assessors are like that. I certainly never did it and never had a complaint about the way I behaved with a claimant. I used to pride myself in getting compliments for making people feel at ease. It doesn’t cost anything to be kind!
    Yes, to be fair, others have been very nice people in ESA / PIP assessments. One lady gave me a little hug as I left, because I'd cried when answering her MH queries. 

    In future, I will not go alone. Although at my assessnent centre, my disability support advisor had to raise a complaint in the past, as a different nurse removed the socks from a client without permission, and got angry when he physically couldn't get onto the examination couch safely by himself.
    Having a witness is very useful in these situations though. I shall request recording equipment also. My MP has taken my case to Amber Rudd, to push for video recording equipment to be rolled out quicker.
  • poppy123456
    poppy123456 Member Posts: 28,522 Disability Gamechanger
    They don't record PIP assessments but you can record you own using the correct equipment. You must ring the assessment providers a couple of days before the assessment to tell them you're recording it.
  • Tara100
    Tara100 Member Posts: 16 Connected
    edited March 2019
    They don't record PIP assessments but you can record you own using the correct equipment. You must ring the assessment providers a couple of days before the assessment to tell them you're recording it.

     I looked into this recently, and was told by I.A.S that they had to provide the equipment (by asking well in advance) because by using my own equipment, it is not admissible evidence, due to the fact it could have been tampered with (their words)
    Is this what you meant? That they supply it?
    I do wonder who keeps it afterwards, because technically, anything can be tampered with, by anyone.
  • poppy123456
    poppy123456 Member Posts: 28,522 Disability Gamechanger
    You were incorrectly advised, they don't provide the equipment, or record it for you. If you want to record the assessment then it's your responsibility to get the equipment yourself.
  • poppy123456
    poppy123456 Member Posts: 28,522 Disability Gamechanger
  • Tara100
    Tara100 Member Posts: 16 Connected
    edited March 2019
    You were incorrectly advised, they don't provide the equipment, or record it for you. If you want to record the assessment then it's your responsibility to get the equipment yourself.

    Not surprisingly, I was misinformed. 

    I had to laugh at the rules regarding recordings. I would have to go back to the 80's and buy a double cassette recorder to get two copies:

    • Your recording equipment must be able to produce two identical copies of the recording at the end of the assessment, either on audio cassette or CD. 
    • Mobile phones and laptops are not suitable mediums for recording assessments.
  • poppy123456
    poppy123456 Member Posts: 28,522 Disability Gamechanger
    Even if you do record an assessment it is of little use other than to remind you what went on. To be admissible as evidence the recording would need to be professionally transcribed, and it is hard enough trying to get relevant evidence read. CM's and Tribunals will not take the time to read through the transcript of an hours assessment.
  • Waylay
    Waylay Member Posts: 971 Pioneering
    Hi @Tara100 On discrimination, I'm no expert, but if you have a Law Centre near you, they can give good advice.

  • Waylay
    Waylay Member Posts: 971 Pioneering
    @Tara100 There was a Court of Appeal case a while back that's vaguely related. Comment by a lawyer: “As a result of the Court of Appeal decision, the powers of the social security tribunal have been severely curtailed. The tribunal is no longer able to address the injustice that is caused to a social welfare claimant by the application of regulations that breach their rights protected by the Human Rights Act.”
    This is now being appealed to the Supreme Court:
    LeighDay is a law firm that works on a lot of cases about disability issues. I think they accept cases from people without money to pay, too.

    Also, Re: genital touching: The PIP Assessment Guide Part 1
    says
    2.6.31. "The HP should never disturb underwear; never ask the claimant to remove their underwear; and never carry out intimate examinations (breast, rectal or genital examinations)."
    Don't know if they mean with or without clothes, but I'm pretty sure that what she did was a no-no!

    They'll almost certainly pooh-pooh your first formal complaint. Ask for it to be investigated by a Senior Manager. If that doesn't get results, send it to ICE.

    You can also complain to the DWP about the behaviour of their cintractor, and to the registrartion body of the assessor.

    Cheers!








  • cristobal
    cristobal Member Posts: 987 Disability Gamechanger
    I agree with @waylay when he says ..."They'll almost certainly pooh-pooh your first formal complaint. Ask for it to be investigated by a Senior Manager. If that doesn't get results, send it to ICE."

    I made a complaint about the examination part of my assessment - consent very dubious, procedure not explained, and when I stopped one of the stretching exercises because it hurt  the assessor asked "Are you sure that it's pain?" It was all on a  recording.

    My first reply was a total fob-off, seemed to be a pre-formatted letter explaining their 'procedures'.

    My next letter was lost.

    The second reply - which they said was a 'final look'- did address some of the matters I had raised but not the physical examination. The reply was quite detailed in some areas and I formed the impression that it had been conveniently overlooked, and filed under 'too difficult'

    I'd made it clear from the start that I didn't want anyone to be disciplined or sacked, and all that I was seeking was an acknowledgment that the examination was carried out badly, and a promise that the assessor would be advised/ retrained about what they must do as regards consent, claimant being in pain etc. I was left feeling very disappointed that they chose not to do either of these things....


  • Tara100
    Tara100 Member Posts: 16 Connected
    Waylay said:
    Hi @Tara100 On discrimination, I'm no expert, but if you have a Law Centre near you, they can give good advice.

    Hi, sadly my nearest law centre is over 100 miles away, and they can't even talk to me over the phone, as you have to be in their catchment area.

    Thank you though.

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