Decision makers letter has not been received

Gordon wrote:

RB

Without commenting on your strategy, you cannot assume that the failure to receive a document from the DWP means that it was not sent. If the DWP can show that the letter was produced, was correctly addressed and was despatched, then they have discharged their staturary duty.

Gordon

Hi RB,

Gordon is correct. (Thanks G )

bro58

Hi Bro58 and Gordon,

Many thanks for this feedback.
I will go ahead and draft a letter this afternoon for Alex to sign (addressed to the DWP) requesting a copy of the Decision Maker's I will post this letter by recorded delivery.
If Alex receives a response from the DWP, I will let you know the outcome.

Robert

Phone call that signals ESA claim failure
I am assisting my friend Alex with his appeal for ESA. Alex who is a 45 yr old man with Asperger’s and related chronic MH problems (anxiety and depression), who has mostly been unemployed for the last 25 years, despite desperate attempts on his part to get a job, and despite having good paper qualifications: Alex has a 2.1 honours degree in History as well as a post- graduate Diploma in Information Science which qualifies him as a professional librarian. Presently Alex does 4 hours a week voluntary work cataloguing in a library which he enjoys and is very good at.
Last week, 4 months after his Atos medical, Alex discovered that he had failed his Atos medical when he discovered his benefit payments had been stopped. He duly phoned DWP who confirmed that he failed his Atos medical. The DWP sent Alex a copy of his medical report (ESA85) and Form ESA65 by first class mail and it duly arrived last Wednesday morning. The DWP did not however enclose a copy of the Decision Maker’s letter, which Alex requested. A signed letter from Alex to the DWP requesting a copy of the Decision Maker’s letter has since been posted to the DWP by recorded delivery on 26/10/2012.
As part of Alex’ appeal strategy, I am presently considering the likelihood of underscoring the fact that the Decision Maker in arriving at his decision to withdraw Alex’s eligibility for ESA, relied solely on the limited capacity for work questionnaire which Alex submitted and the report of the face to face ( perhaps better described as the ‘face both ways Lima data input interview’) which Alex had on 25/06/2012, which was undertaken by an Atos Hcp physiotherapist. Throughout the assessment the physiotherapist adopted a computerised tick box approach and did not pay much attention to what Alex said that did not tie in with the computer programme logic. I feel quite confident about being able to show that the Atos Hcp Physiotherapist report provided a caricature of someone with Asperger’s. I do not think that the Physiotherapist who conducted Alex’s medical has much if any knowledge or understanding of what Asperger’s is like and how this autistic spectrum condition can seriously affects someone’s social functioning.
As encouraged, with additional questions of my own, I have posted a letter on 27/10 signed by Alex and sent by recorded delivery to Atos asking: 1. Is the Hcp ( physiotherapist) who assessed Alex classed as Mental Health Champion?; 2. If not, did the Hcp consult a Mental Health Champion? 3. Has the Hcp (physiotherapist) received training on Autistic Spectrum Conditions? 4. Is training on Autistic Spectrum Conditions mandatory for all Atos assessors? I will report back on nature of Atos’ reply.
I have only just noticed on Alex’s ESA 65 form that it states below ‘the Decision Maker’s 29/08/2012 and there was no response”. reasons for the decision on your claim’: ‘Telephone call was made twice to (Mr Alex M at his home tel. Number xxxxxxxx) on 29/08/2012 and there was no response.’ Needless to say, that these two telephone calls were not received by Alex or by his 76 year old mother. Nor were any messages from the Decision Maker left on Alex’s BT answer phone. I suspect someone from the DWP may well have ‘phoned Alex’s home tel. number twice during the early part of the day when Alex and his mum were possibly out the house somewhere.
Would I be right in suspecting these minimal attempts by the Decision Maker to contact Alex to inform him he had failed his medical and to check if Alex wanted to offer additional information are in sufficient somewhat dubious action s taken on the part of the Decision Maker to enable the latter to claim to have discharged her/ his responsibilities?
Personally, I do not think this removes the onus on the DWP Decision Maker to take all reasonable actions to contact a vulnerable disabled person with MH problems about something of a quasi legal medical matter of such enormous importance and significance for the claimant. (as public service departments are required to make reasonable adjustments under the Equality Act 2010).
When I worked for my local council, I would never have got away with saying what the DWP Decision Maker has said in his report, when I was being reasonably paid and expected to act like a responsible adult/human being at all times. I would have at the very least been expected to exercise some common sense and judgement and would have left a message on the person’s answer phone and indeed perhaps followed that up with an immediate letter, for such a serious important matter, if I got no reply. If your local health centre doctor or nurse wants to tell you the results of a medical examination, blood test etc. Someone from the local health centre ‘phones you and leaves a message on the answer phone for you to contact a named member of staff the surgery. It strikes me that the DWP Decision Makers actions may not be fully in accordance either with the Equality Act 2010 (need for adjustments when dealing with disabled people) or acting within the DWP’s own stated ESA policies. It is certainly not what Prof Malcolm Harrington said on ‘Panorama: Disabled or Faking it’ broadcast on BBC2 on 30/07/2012, (and still available to watch) about what he wanted to happen in respect of the WCA in terms of improved good practice by Disability Analysts and Decision Makers.
Consequently, as I not sure how else to obtain the DWP Policies and procedures for Decision Makers, I have drafted a possible letter from Alex to the DWP requesting a copy of their policies and procedures and practice guidance for DWP Decision Makers regarding the notification of ESA claimants who have failed their Atos Medicals including the following draft phrases:
...Having now had an opportunity to reflect on the Decision Maker’s reasons for the decision on my claim as contained in ESA 65, I note it is stated that:
‘Telephone call was made twice on tel no. XXXXXXXXX to Mr M on 29/08/2012 and there was no response.’
I am now appealing the decision to disallow me from entitlement to Employment Support Allowance. As I am not satisfied with what I consider to be the Decision Maker’s inadequate attempts to contact me, I would be obliged if you could provide me with the following:
The DWP’s policy, procedures and professional practice guidance in respect of Decision Makers who are required to contact ESA claimants when they fail their ESA Atos medicals. I would prefer if you could provide me with the document names and the addresses of their web sites, if these are already online and available for public access.
Yours faithfully,'

I apologise for the length of this post. I need to learn to be more succinct. Comments welcome, including any alternative suggestions. Thanks Robert

Many thanks Gordon for allowing this over lengthy post and particularly for your helful authorative advice which I fully accept and will follow.

I am most grateful for your helpful advice.

Robert

Today, my friend who has Asperger’s, received a letter of response from a Customer Relations Manager at Atos.
It confirmed the following:
1. The particular HCP who saw my friend with Asperger’s was not a mental health champion (MHC);
2. The HCP ‘could not specifically remember my friend’s case to confirm whether a MHC was consulted but looking through her medical report she is of the opinion that it was unlikely’;
3. The HCP in question completed training specifically in learning difficulties and Autism Spectrum Disorder awareness; and
4. It is mandatory for all Atos HCPs to complete this training (learning difficulties and Autism Spectrum Disorder) prior to undertaking assessments.

Personal Observations:
I am glad this information was obtained from Atos as it challenged my prior wrong assumptions.
I am relieved and genuinely grateful that Gordon expressed his concern when he did about my (flawed) strategy which was focussing far too much on the possible shortcomings of the HCP and Decision Maker. As a result of heeding good advice, I have now done the work of compiling a (much better and stronger) report which focuses on how my friend Alex meets the criteria for the WRAG group.
It has taken me about two weeks to complete my draft witness statement and I have found it a demanding exercise. I would not have got this far if it had not been for the support, encouragement and challenge to my rigid preconceptions, that I have received on this site.
Now that I have completed my draft witness statement report, I am now wondering if there are any other parts of the site that I could usefully look at whilst I wait to hear when the Appeal will take place. Thanks, Robert