Post by nickd on Sept 21, 2012 20:56:58 GMT 1
Redressing the DWP & ATOS injustice
Why not have YOUR day in court? ......
Thousands of Employment & Support Allowance claimants are going through a torturous process of waiting months and months just to prove they are genuinely disabled. It often means living on much less than you should be living on with a great deal of stress and anxiety before you finally get a chance to prove to a social security tribunal that the DWP has wrongly assessed you, an appeal decision made out in your favour proves you were in the right and the Secretary of State was wrong. The process is taking far longer than it should and is exposing thousands of medical assessments carried out by the DWP's private healthcare contractor as having been carried out to a less than satisfactory standard.
The process is so stressful that some claimants are sadly taking their own lives and committing suicide, others are having to see their doctors because of an adverse impact the process is having on their well being.
Claimants are being subjected to maladministration of their claims, they are suffering from a less than satisfactory standard of decision - making by the DWP who should be objectively reviewing all of the evidence you send them. Financial loss is suffered as claimants go months without the right money, it means more stress, costly phone calls, visits to advice centres to put a wrong right, and incurring the cost of medical evidence to prove your case. It's all money which a claimant simply cannot afford.
Claimants are also being promised vital support which will help them improve their chances of being able to find work for those with limited capability. It means months of losing out on support which could otherwise have improved your financial position.
For those who end up in the support group it means they've often gone through months wrongly labelled as 'fit for work'. In most court cases you have a right to be compensated and to receive damages but a social security tribunal makes no provision for making cost orders.
You could however consider taking out an action in the County Court if the DWP refuse to award you compensation.
Making a compensatory request
Generally speaking before making a claim you should try and resolve this with the DWP first. The general way of doing this is to request compensation and or an 'ex-gratia' payment. The DWP has special officers who deal with this, you can find out more about the circumstances in which you can make compensatory requests by reading the DWP guidance here. In summary the guidance looks at different key areas:
Guiding Principles of the Department for Work and Pensions’ Special Payment Scheme
Ex gratia special payment categories
There are three special payment categories under which individuals can be
awarded financial redress in response to DWP maladministration.
The scope is therefore quite wide. You should however bear in mind that there may be no legal obligation to make some of the payments you may request. However the guidance gives you a good idea about how the DWP consider themselves liable in certain fault situations, by reading their guidance you get some insight in to how they are likely to consider your request. An advantage in making a compensation request is that it is free.
You will need to establish your case and provide evidence to back up your request. You can only claim for a loss which is proportionate to how much you have actually lost out financially. Other grounds of claim related to say 'inconvenience or 'pain and suffering' are much harder to substantiate; although they may 'cost' an individual a great deal in terms of personal damage.
Making a complaint
Alongside any request for compensation you may just wish to raise a complaint. Sometimes people are content with an apology or an assurance that the same kind of issue will not arise in other cases. You should therefore decide what issues relate to a complaint as a separate (although often entwined) matter to that of requesting compensation. You can find out more about making a complaint here. You need to bear in mind that a complaint cannot remedy a judicial decision (such as the outcome of an appeal or an 'unfair decision') as the DWP will only remind you that your remedy has to be found in exhausting the appeals process. Legal wrongs which cannot be resolved via the appeals route may be better resolved by what is known as 'judicial review'.
Complaints need to be made against the relevant department against which you wish to make a specific claim; this could be:
'Other' damages
This is where it starts to get complicated because up until this point we have looked at claims which are comparatively easy to quantify. If you've spent £40 on letters and phone calls then it should be fairly straightforward to at least be able to set out your losses. Where it gets complicated is where things start to get 'legal'. Civil litigation is a specialised area which is beyond the scope of the area of law I specialise in so if there are any litigators out there looking in then please feel free to wade in with a comment.
Many of you may have been through the ESA injustice with quite devastating effects upon your health and well being. Emotional distress and physical harm is beyond what the DWP would normally consider in the context of a compensatory request and it may therefore be appropriate to consider court action in order to claim redress, just don't expect it to be an easy process!
There are instances where I think we should at least consider how the actions of lets say an ATOS healthcare professional (HCP) which could give rise to an action for damages. They will no doubt argue they are not involved in a diagnosis or treatment of a claimant and therefore cannot be held liable for clinical or medical negligence. It's not as though they are say a surgeon who botches an operation or a doctor who misdiagnoses an illness. However can their actions be causative of a worsening in a claimant's condition?
I think that potentially the actions of an HCP could be causative in certain situations. Let's say you had a claimant with a bi-polar condition and they were under the care of a doctor and perhaps the community mental health team. It may be that the bi-polar claimant's condition is well controlled on say Lithium medication which helps stabilise mood. If the HCP wrongly assessed the claimant and gave him or her an opinion which indicated their condition was only mild (when it reality it may be just the opposite), the claimant may then be left doubting the diagnosis of his or her clinicians.
This could lead to a break down in the trust he or she has in them and as a result may stop taking their medication thinking 'they are well'. If the claimant's condition then deteriorated because of not taking the medication (acting on the HCP's opinion) then I guess you could argue it is the action of the HCP which is causative of a worsening in their condition. Is causation something which may give rise to a claim? - it's a viable question I reckon.
There are other aspects of damage which may be more at fault because of failures in the process rather than the actions of any particular individual. A person with anxiety or stress is much more likely to find their well being being aggravated by waiting too long for their case to be heard. Ultimately the DWP should be accountable for any unreasonable delays which may unnecessarily protract the time before the claimant's case is resolved. You can blame the DWP for delays with the process but you would not be able to blame them for the process itself; they are set constraints by government. However if they are at fault in failing to follow the process then you may be able to cite them as being liable for losses.
It will therefore be necessary to consider who to cite as being at fault, is it the DWP, Atos, the Tribunal Service or perhaps the Secretary of State himself? This is an important point to consider as if you decide to proceed with a claim you will need to be able to correctly identify the 'defendant' who you intend to sue.
Before taking a case to court you may wish to consider the action you can take via the Independent Case Examiner or the Ombudsman, the links to these are in the next section.
Taking things further
Independent Case Examiner
If you cannot resolve your case with the DWP directly then you can escalate your complaint or compensatory request by taking it to a higher level with either the Independent Case Examiner or the Parliamentary and Health Service Ombudsman. Check out the links to see whether your complaint is within the remit under which they may be able to assist you. Their contact details are here:
In writing:
The Independent Case Examiner
Jupiter Drive
Chester
CH70 8DR
Telephone: Telephone number (local call rate): 0845 606 0777
Textphone: 0151 801 8888
Typetalk: 18002 0151 801 8800
If you are calling from outside the UK: +44 151 801 8800.
Fax: 0151 801 8806
Website: www.ind-case-exam.org.uk
E-mail: ice@dwp.gsi.gov.uk
Parliamentary and Health Service Ombudsman
In writing:
The Parliamentary and Health Service Ombudsman
Millbank Tower
Millbank
London
SW1P 4QP
Telephone: Complaints Helpline 0345 015 4033
Fax: 0300 061 4000
Website: www.ombudsman.org.uk
E-mail: phso.enquiries@ombudsman.org.uk
Taking your case to Court
Before reaching for the Court summons and hot footing it to the local county court (it's no longer that simple) you need to carefully consider how suing a government department is never going to be easy. They may well defend your claim or argue that it is 'vexatious' if you don't set it out properly or bring it on grounds which a court will accept.
I strongly advise anyone going beyond the complaint options discussed so far to seek advice before issuing a claim.
You are likely to need expert advice for any claim involving negligence or significant financial loss because damages are likely to exceed the monetary amounts considered in the small claims court.
Any claim beyond the more easily quantified losses mentioned so far is one where you should seek legal advice from a qualified civil litigator. This article looks at the type of claim you could reasonably take out in the County Court via the small claims track where the costs are low and the process is one which is relatively easy to follow. You will need a certain amount of stamina though, especially following an exhausting appeal. It is sensible to seek advice so that you have someone who can help you prepare a case, they can also advise you on the merits of your claim.
This article will next look at bringing an action in Court, in the next section we will look at following what is known as 'pre-action protocol' followed by how to set out a claim. The type of claim we will look at first is one that you may be able to take out in the small claims court.
Watch out for more on taking the 'next step'.....
Why not have YOUR day in court? ......
Thousands of Employment & Support Allowance claimants are going through a torturous process of waiting months and months just to prove they are genuinely disabled. It often means living on much less than you should be living on with a great deal of stress and anxiety before you finally get a chance to prove to a social security tribunal that the DWP has wrongly assessed you, an appeal decision made out in your favour proves you were in the right and the Secretary of State was wrong. The process is taking far longer than it should and is exposing thousands of medical assessments carried out by the DWP's private healthcare contractor as having been carried out to a less than satisfactory standard.
The process is so stressful that some claimants are sadly taking their own lives and committing suicide, others are having to see their doctors because of an adverse impact the process is having on their well being.
Claimants are being subjected to maladministration of their claims, they are suffering from a less than satisfactory standard of decision - making by the DWP who should be objectively reviewing all of the evidence you send them. Financial loss is suffered as claimants go months without the right money, it means more stress, costly phone calls, visits to advice centres to put a wrong right, and incurring the cost of medical evidence to prove your case. It's all money which a claimant simply cannot afford.
Claimants are also being promised vital support which will help them improve their chances of being able to find work for those with limited capability. It means months of losing out on support which could otherwise have improved your financial position.
For those who end up in the support group it means they've often gone through months wrongly labelled as 'fit for work'. In most court cases you have a right to be compensated and to receive damages but a social security tribunal makes no provision for making cost orders.
You could however consider taking out an action in the County Court if the DWP refuse to award you compensation.
Making a compensatory request
Generally speaking before making a claim you should try and resolve this with the DWP first. The general way of doing this is to request compensation and or an 'ex-gratia' payment. The DWP has special officers who deal with this, you can find out more about the circumstances in which you can make compensatory requests by reading the DWP guidance here. In summary the guidance looks at different key areas:
- Maladministration
- Acting to put things right
- Deciding a case on 'balance of probabilities'
- Further redress through the Independent Case Examiner or The Parliamentary and Health Service Ombudsman (PHSO)
Guiding Principles of the Department for Work and Pensions’ Special Payment Scheme
- Individuals should not be disadvantaged as a result of
maladministration: - Injustice and hardship resulting from maladministration should
be addressed on a case by case basis: - Fair and justifiable decisions should be made in respect of
individual cases: - Special payment decisions should culminate in timely and
appropriate financial redress for individuals:
Ex gratia special payment categories
There are three special payment categories under which individuals can be
awarded financial redress in response to DWP maladministration.
- Loss of statutory entitlement
- Actual financial loss or costs
- Consolatory payments
The scope is therefore quite wide. You should however bear in mind that there may be no legal obligation to make some of the payments you may request. However the guidance gives you a good idea about how the DWP consider themselves liable in certain fault situations, by reading their guidance you get some insight in to how they are likely to consider your request. An advantage in making a compensation request is that it is free.
You will need to establish your case and provide evidence to back up your request. You can only claim for a loss which is proportionate to how much you have actually lost out financially. Other grounds of claim related to say 'inconvenience or 'pain and suffering' are much harder to substantiate; although they may 'cost' an individual a great deal in terms of personal damage.
Making a complaint
Alongside any request for compensation you may just wish to raise a complaint. Sometimes people are content with an apology or an assurance that the same kind of issue will not arise in other cases. You should therefore decide what issues relate to a complaint as a separate (although often entwined) matter to that of requesting compensation. You can find out more about making a complaint here. You need to bear in mind that a complaint cannot remedy a judicial decision (such as the outcome of an appeal or an 'unfair decision') as the DWP will only remind you that your remedy has to be found in exhausting the appeals process. Legal wrongs which cannot be resolved via the appeals route may be better resolved by what is known as 'judicial review'.
Complaints need to be made against the relevant department against which you wish to make a specific claim; this could be:
- The DWP
- ATOS (who conduct the medical assessments for the DWP)
- The Tribunals Service (now Her Majesty's Courts & Tribunals Service)
'Other' damages
This is where it starts to get complicated because up until this point we have looked at claims which are comparatively easy to quantify. If you've spent £40 on letters and phone calls then it should be fairly straightforward to at least be able to set out your losses. Where it gets complicated is where things start to get 'legal'. Civil litigation is a specialised area which is beyond the scope of the area of law I specialise in so if there are any litigators out there looking in then please feel free to wade in with a comment.
Many of you may have been through the ESA injustice with quite devastating effects upon your health and well being. Emotional distress and physical harm is beyond what the DWP would normally consider in the context of a compensatory request and it may therefore be appropriate to consider court action in order to claim redress, just don't expect it to be an easy process!
There are instances where I think we should at least consider how the actions of lets say an ATOS healthcare professional (HCP) which could give rise to an action for damages. They will no doubt argue they are not involved in a diagnosis or treatment of a claimant and therefore cannot be held liable for clinical or medical negligence. It's not as though they are say a surgeon who botches an operation or a doctor who misdiagnoses an illness. However can their actions be causative of a worsening in a claimant's condition?
I think that potentially the actions of an HCP could be causative in certain situations. Let's say you had a claimant with a bi-polar condition and they were under the care of a doctor and perhaps the community mental health team. It may be that the bi-polar claimant's condition is well controlled on say Lithium medication which helps stabilise mood. If the HCP wrongly assessed the claimant and gave him or her an opinion which indicated their condition was only mild (when it reality it may be just the opposite), the claimant may then be left doubting the diagnosis of his or her clinicians.
This could lead to a break down in the trust he or she has in them and as a result may stop taking their medication thinking 'they are well'. If the claimant's condition then deteriorated because of not taking the medication (acting on the HCP's opinion) then I guess you could argue it is the action of the HCP which is causative of a worsening in their condition. Is causation something which may give rise to a claim? - it's a viable question I reckon.
There are other aspects of damage which may be more at fault because of failures in the process rather than the actions of any particular individual. A person with anxiety or stress is much more likely to find their well being being aggravated by waiting too long for their case to be heard. Ultimately the DWP should be accountable for any unreasonable delays which may unnecessarily protract the time before the claimant's case is resolved. You can blame the DWP for delays with the process but you would not be able to blame them for the process itself; they are set constraints by government. However if they are at fault in failing to follow the process then you may be able to cite them as being liable for losses.
It will therefore be necessary to consider who to cite as being at fault, is it the DWP, Atos, the Tribunal Service or perhaps the Secretary of State himself? This is an important point to consider as if you decide to proceed with a claim you will need to be able to correctly identify the 'defendant' who you intend to sue.
Before taking a case to court you may wish to consider the action you can take via the Independent Case Examiner or the Ombudsman, the links to these are in the next section.
Taking things further
Independent Case Examiner
If you cannot resolve your case with the DWP directly then you can escalate your complaint or compensatory request by taking it to a higher level with either the Independent Case Examiner or the Parliamentary and Health Service Ombudsman. Check out the links to see whether your complaint is within the remit under which they may be able to assist you. Their contact details are here:
In writing:
The Independent Case Examiner
Jupiter Drive
Chester
CH70 8DR
Telephone: Telephone number (local call rate): 0845 606 0777
Textphone: 0151 801 8888
Typetalk: 18002 0151 801 8800
If you are calling from outside the UK: +44 151 801 8800.
Fax: 0151 801 8806
Website: www.ind-case-exam.org.uk
E-mail: ice@dwp.gsi.gov.uk
Parliamentary and Health Service Ombudsman
In writing:
The Parliamentary and Health Service Ombudsman
Millbank Tower
Millbank
London
SW1P 4QP
Telephone: Complaints Helpline 0345 015 4033
Fax: 0300 061 4000
Website: www.ombudsman.org.uk
E-mail: phso.enquiries@ombudsman.org.uk
Taking your case to Court
Before reaching for the Court summons and hot footing it to the local county court (it's no longer that simple) you need to carefully consider how suing a government department is never going to be easy. They may well defend your claim or argue that it is 'vexatious' if you don't set it out properly or bring it on grounds which a court will accept.
I strongly advise anyone going beyond the complaint options discussed so far to seek advice before issuing a claim.
You are likely to need expert advice for any claim involving negligence or significant financial loss because damages are likely to exceed the monetary amounts considered in the small claims court.
Any claim beyond the more easily quantified losses mentioned so far is one where you should seek legal advice from a qualified civil litigator. This article looks at the type of claim you could reasonably take out in the County Court via the small claims track where the costs are low and the process is one which is relatively easy to follow. You will need a certain amount of stamina though, especially following an exhausting appeal. It is sensible to seek advice so that you have someone who can help you prepare a case, they can also advise you on the merits of your claim.
This article will next look at bringing an action in Court, in the next section we will look at following what is known as 'pre-action protocol' followed by how to set out a claim. The type of claim we will look at first is one that you may be able to take out in the small claims court.
Watch out for more on taking the 'next step'.....