Confidential docs published - but for how long?
- Category: Latest news
- Created: Wednesday, 16 November 2005 01:00
16 November 2005
Having caught the DWP and Atos out in yet another untruth Benefits and Work is now publishing in its members area many documents Atos claimed were its confidential property. They include startling proof that DLA claimants do not have to give examining doctors a verbal statement, plus a copy of an incapacity for work document that a social security commissioner has said should be available to all appeal tribunals, claimants and representatives.
But, even as we publish, the DWP is consulting with Harriet Harman, Minister of State at the Department of Constitutional Affairs, in an effort to prevent the most contentious documents remaining available.
Regular visitors will know that we recently forced the DWP to admit that the LiMA software, already used for incapacity medicals and now to be used for DLA medicals too (see xx) was owned by them and not Atos. Following on from this, and after many hours poring over hundreds of pages of the Impact contract between Atos and the DWP, we found conclusive proof that many documents claimed by Atos actually belong to the DWP.
We put our proof to the DWP, who have now responded by letter admitting that the DWP own the intellectual property rights to the documents in question. And adding that: "Atos Origin Medical Services are in the process of removing any reference to Atos Origin UK Ltd claiming copyright of the documents".
It was this false claim of ownership by Atos, supported by the DWP, that had until now prevented Benefits and Work making many very valuable documents available to its members. Back in July, for example, we asked for permission to publish the Guidance for Examining Medical Practitioners, a handbook used by doctors carrying out DLA and AA medicals. The Guidance contains the following notice:
"The copyright in this work is vested in Atos Origin UK Ltd and the information contained herein is confidential. This work (either in whole or in part) must not be modified, reproduced, disclosed or disseminated to others or used for purposes other than that for which it is supplied, without the prior written permission of Atos Origin UK Ltd."
We received a response from the DWP stating that: "Atos Origin Medical Services do not give their permission for you to reproduce their guidance on your website . . ."
Now, it would appear, Atos had no power to refuse permission because it was never "their guidance" in the first place. Instead, it belongs to the DWP and is covered by Crown copyright restrictions. We have studied the terms of the licence we hold to reproduce Crown Copyright materials and the guidance for Examining Medical Practitioners, along with many other documents is now available to Benefits and Work members.
We haven't yet had time to read through all of the documents we hope to publish, something we need to do to ensure that they meet the criteria set out in our licence. However, some of the documents we have already put on the site include the following.
DLA & AA statements
An extremely useful guide to taking statements which makes it clear that claimants can write and sign a statement of their difficulties prior to a DLA or AA medical and the doctor must accept this rather than taking a statement themselves, if the claimant so wishes. This means that claimants can draw up a statement with their advisor, if they have one, prior to the medical rather than ending up with a frequently inaccurate statement which is then used against the claimant by the decision maker. The guide also states that claimants, not doctors, should initial any additions or deletions in the statement and the claimant, not the doctor should tick the box saying whether they have read the statement or had it read to them. It also explains why extracts from statements such as "I walk to the local parade of shops, about ¼ mile away to buy bread and milk" are insufficient and explains the ways in which they can easily be challenged by the claimant.
Lima technical manual
The LiMA technical manual takes the examining doctor step-by-step through the process of completing a computerised personal capability assessment. We believe this document is vital in order to understand what happens at the medical and how to challenge the subsequent report. But don't just take our word for it. In CIB/664/2005 Commissioner Williams was scathing about the failings of the LiMA system and of the copyright notice on this manual. He held that:
"Only with the benefit of the Manual's explanation can one gain a full understanding of the way in which boxes 32-56 of an electronic IB85 report are presented. The Manual should therefore be available to all appeal tribunals that wish to consider it and, to ensure 'equality of arms', to all claimants and representatives."
Well, we can't make it available to all claimants and representatives, but it is currently available to all Benefits and Work members.
Lots and lots of other things
For each document we publish we're aiming to explain what it is and what use you might make of it. We're not quite there yet, as we're currently uploading and checking things in a bit of a rush, before the Minister for Constitutional Affairs or someone else hits upon a way to stop us, as we'll explain below.
But amongst the other information currently available is the following.
LiMA screenshots - hundreds of shots of what the doctor sees when doing an incapacity medical. Use a brief extract to demonstrate to tribunals how easy it is for the doctor to enter inaccurate and incomplete information.
Claimants with drug and alcohol problems - 58 pages of detailed information about how drug and alcohol problems affect entitlement to DLA and findings of incapacity for work.
Using personal descriptions - an 8 page guide which contains some important points which doctors often ignore and could be used to reinforce a challenge to evidence given by doctors. For example, doctors are warned that if they describe a claimant as 'neatly dressed' they must take into account such factors as help provided by another person, the degree of difficulty experienced by the individual in attaining their appearance and the effects of a fluctuating disorder.
Mental health protocols - an extremely useful 64 page quick reference guide to how the DWP think a very wide range of mental health conditions will affect claimants for both incapacity for work and for DLA and AA. These protocols form the basis of the LiMA software.
Industrial Injuries Handbook - a 116 page handbook used by doctors carrying out examinations in relation to Industrial Injuries Disablement Benefit. It describes how to carry out examinations, how to complete reports and includes references to legislation and commissioners decisions.
Severe Disablement Allowance Handbook - 66 pages of guidance for medical advisers undertaking medical interviews, examinations and assessments in relation to claims for Severe Disablement Allowance. It incorporates the changes resulting from the introduction of the DMA provisions and the cessation of new claims to the benefit in April 2001.
Common diseases - 62 pages of guidance given to decision makers on precisely what action to take when an individual becomes incapable of work, depending on which condition is given on the Med3 sick note. It will allow claimants and their advisors to know in advance whether the claimant's GP will be sent a form IB113 to check whether the claimant should be exempt from the Personal Capability Assessment. This is particularly valuable information as it may allow claimants or their representatives to give information to the doctor about issues that are relevant to exemption. It may also provide valuable evidence at an appeal hearing if the decision maker should have sent out an IB113 form and failed to do so.
Children's mobility - 40 pages of guidance for examining doctors looking at the milestones of motor development: what crawling, walking and running skills a child should have developed by what age. It also details: which conditions are most likely to affect walking development and how; how to examine a child and some common problems with gait.
Fibromyalgia - 33 pages of guidance for examining doctors on the history, causes and effects of fibromyalgia.
LIMA examination findings - 49 pages explaining the significance of each of the clinical findings, both physical and mental, of the computer generated LiMA Personal Capability Assessment reports. The meaning of physical terms such as 'Wrist supination' and visual 'Acuity 6/18' are clearly explained. Claimants can be forewarned about the assumptions doctors are trained to make, for example that tanned people are healthy and that people who look healthy are healthy (truly we aren't making this up!) They can then explain at the medical why this may not be so their case. Extracts can also be submitted to a tribunal to demonstrate the potentially inaccurate assumptions that the computer makes about claimants based on entries made by the doctor.
Other documents currently available include:
- DLA Examinations in Medical Examination Centres
24 A4 pages, dated April 2003
- Mobility Questions in DLA (Self-Directed Learning Pack)
59 pages, November 2004
- Assessing Mobility - Participant's Pack
49 pages A4, dated February 2001
- Assessing Mobility - Trainer's Brief
61 pages A4, dated February 2001
- Update on post traumatic stress disorder
30 pages A4 dated March 2000
- Providing Assistance to the Decision Maker at the Accident Consideration Stage - A Guide for Medical Advisers
34 pages A4 dated May 2001
- Update on Occupational Asthma
53 pages A4, dated June 2001
- War pensions. Guidance for Examining Medical Practitioners
86 pages A4 dated November 2001
An iron curtain falls
Understanding LiMA software is becoming increasingly vital for claimants and advisors. We now know that this software is being piloted for use in DLA and AA decision making and that Atos are to begin using their own LiMA controlled nurses to do DLA and AA medicals from early next year, (see: Atos computer controlled nurses to replace DLA doctors).
Not surprisingly, the DWP are keen to keep the details of the software secret and are prepared to ignore their legal responsibilities in order to do so. Our discovery that both the DWP and Atos were misleading the public about the ownership of software and documents has made long-term secrecy more difficult. As a result, we understand that the DWP have now approached Harriet Harman, Minister of State at the Department of Constitutional Affairs, seeking a way to prevent information they regard as confidential being published. Top of their list is anything to do with LiMA.
The big problem for the DWP, however, is that the LiMA documents we are publishing are currently available under the Freedom of Information Act and the licence that we hold to publish Crown copyright material is intended to closely mirror that Act. The only way that the DWP can bring down an iron curtain on this type of information, therefore, is to persuade the minister that information about the medical assessment of benefits claimants should be covered by one of the public interest exemptions. If they succeed in this, then Atos and the DWP will be free to continue to change the methods by which claimants are assessed, safely hidden behind an iron curtain of official secrecy.
Meanwhile, until it becomes unlawful to do so, - which may not be very long - Benefits and work will continue to gather and publish whatever we can.