10 January 2006
DWP staff may be routinely committing criminal offences under the Forgery and Counterfeiting Act 1981 due to the departmental practice of altering computer generated incapacity for work medical reports without the claimant's knowledge. Astonishingly, a guidance letter issued to decision makers about the LiMA incapacity software gives permission to continue the practice in some circumstances.
The letter, which may provide valuable support for claimants challenging the decision that they are incapable of work, also tells decision makers that criticisms raised by claimants and social security commissioners about the LiMA system 'have been, or will be, addressed as part of a programme of improvements to the computer system'. However, the letter does not explain which failings have already been addressed, when the remainder will be addressed or how.
Benefits and Work is urging all claimants who have been found incapable of work in the past as a result of a computer generated medical report to seek assurances that the report was not altered in any way to hide errors or omissions. In addition, Benefits and Work is encouraging all future claimants to request a copy of their medical report before they leave the Medical Examination Centre and to seek written assurances that no alteration was made to the report if they appeal a capacity for work decision. We have created downloadable letters for use by members.
The guidance letter, DMG 18/05 issued by the DWP's Adjudication and Constitutional Issues Division in December, details a number of commissioners decisions which consider problems with LiMA incapacity for work medical reports, including:
- the lack of a signature on reports, when doctors would normally sign such a document to say that the report was a true record of their findings;
- the fact that the software will record that the "Claimant states no other problems" in many areas by default, whether or not the doctor actually asked the claimant;
- the ease with which a single error or omission at the early stage of a report may be repeated by the computer software time and again, magnifying the effect on the final result;
- the difficulty of establishing whether computerised reports really represent considered clinical findings.
The letter explains that although commissioners have found that the lack of a signature does not invalidate a report, it is open to claimants to ask for a certificate of authenticity from the DWP.
However, the letter offers no indication of how to deal with the other criticisms raised by commissioners, except to state that "As with all evidence DM's have to decide what weight to give to the content of an electronically-prepared IB85."
Of most concern, however, is the fact that the guidance letter also raises the possibility that failings in individual IB85 medical reports are being covered up before the claimant sees the report.
Decision makers are warned that "any inconsistent or improbable entries should be addressed before a determination of incapacity for work is made". The guidance letter goes on to say that "Advice to Examining Medical Officers from Corporate Medical Group is that any alterations or additions to a report on an electronic IB85 should be provided in a separate document; the original text of the electronic IB85 should not be changed unless it is of a very minor nature e.g. a slip of the pen and is carried out by the same doctor who completed the original. DM's should not accept any other changes to the original text of the IB85."
It seems extremely unlikely that decision makers would be warned not to accept changes to IB85 medical reports unless that is exactly what they have been doing until now. Indeed, the willingness of decision makers to accept medical reports that break contractual rules has been well documented by Benefits and Work in the past. (See: Secret disability living allowance doctors standards revealed 23.03.05)
What the wording of the letter suggests may have been happening is that decision makers are finding errors in medical reports and querying these with Medical Services. Doctors at Medical Services are then correcting these errors and returning the altered report to the decision maker who uses the new document to make a decision. Thus the software has used incorrect information to reach its conclusion about the claimant's incapacity for work, but that incorrect information has subsequently been altered, whilst the software's conclusion has not, and the claimant is none the wiser.
The kind of mistakes that the DWP may wish to covertly correct could be ones like the error commented on by Commissioner Williams in CIB 664 2005:
As in all electronic IB85 reports, Dr A triggered the inclusion of a variety of phrases under "Description of a Typical Day" in Box 7. The tribunal strongly criticised this list and found that some of it was factually incorrect. Some points, the tribunal commented dryly, are to be noted "with some amusement". I am afraid I have less of a sense of humour than the tribunal. I do not find it in any way amusing that a formal report of this kind contains the following statements:
Usually sits to watch TV for 1 hour(s) for about two hours before having to move
Usually can do light gardening for 1 minutes.
If that is evidence of anything, it is of Dr A's inattention to what he or she was doing. Nor do I find it amusing that the absurd statement about watching television is repeated word for word in five other places in the report without any of them being corrected. The tribunal was fully justified in rejecting this report as unreliable. Mrs E was fully justified in having no confidence in it.
If this kind of error had been spotted by the decision maker and "corrected" by Medical Services before a decision was made then the tribunal would have been misled into believing that this was a report in which they could have confidence. On many occasions, where the decision maker was more attentive, that may be exactly what has happened.
Benefits and Work has two grave concerns about the instructions given to decision makers in the guidance letter.
First, we would argue that, by definition, there is no such thing as a 'slip of the pen' in a computer generated medical report: virtually all data is entered via clicks of the mouse. Any error, no matter how seemingly small, may affect the software's calculation of which descriptors apply to the claimant. The DWP, by its own admission, has approved the general principles by which the LiMA software works but does not have a copy of the detailed information that the software uses and so decision makers cannot possibly be in a position to judge which errors are 'of a very minor nature'.
Under the terms of the December guidance letter the "sits to watch TV for 1 hour(s) for about two hours" error above could easily be treated as a "slip of the pen" and "corrected" so that it reads two hours. This could be done without the claimant ever being any the wiser, much less informed and consulted about what they actually did say.
The only honest practice is to ensure that no entries in a medical report are ever changed - attention should always be drawn to them in a separate document - because appeal tribunals have the right to decide for themselves whether the changes were minor or not.
Even more serious, however, is the clear implication in the letter that decision makers have knowingly made decisions based on what are effectively 'false instruments' which may have deprived claimants of benefit to which they are, in fact, lawfully entitled.
Under section 1 of the Forgery and Counterfeiting Act 1981, a person is guilty of forgery if he makes a false instrument, with the intention that he or another shall use it to induce somebody to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any other person's prejudice.
If a claimant is presented with a medical report which purports to be the one which was created at their incapacity benefit medical and which shows that they do not meet the criteria for being found incapable of work, but is in fact an altered document, then there is a strong case for arguing that it is a false instrument. If the claimant accepts that the report is genuine and does not challenge the refusal of their claim for benefits because of that report then they have acted to their detriment. Alternatively, if the claimant appeals and a tribunal believes the report to be genuine, relying on it to find the claimant capable of work, they will have acted to the claimant's prejudice.
The Act also states that an instrument is false for the purposes of this Part of this Act if it purports to have been made in the form in which it is made by a person who did not in fact make it in that form. In other words if the DWP have been allowing a doctor who did not carry out the original medical to make alterations to a report which bears only the name of the original doctor then the report used by the decision maker may be a false instrument.
All this amounts to a potential fraud being committed against claimants by the DWP and yet there is no instruction to decision makers to go back to decisions made based on improperly altered medical reports and either overturn them, or at the least inform the affected claimants and give them an opportunity to challenge them.
Trust me, I'm a decision maker
One of the huge differences between handwritten reports and computer generated ones is that it's relatively easy to tell whether a handwritten document has been altered - even the use of correcting fluid on an original can generally be spotted on a photocopy. But it is impossible for claimants to tell whether the computer printed medical report provided to them by the DWP is the same one that was originally produced by the LiMA software.
It would be relatively simple for the Lima software to incorporate a feature which 'locked' the report after it was written, so that it could not be edited in any way. Or, alternatively, which recorded the occurrence and date of any alterations to the original document. Atos Origin, however, have chosen not to include any such obvious safeguards. Instead claimants are left having to take it on trust that their report has not been tampered with. A trust which, it seems, may have been repeatedly breached.
It seems reasonable, therefore, for claimants who have been found incapable of work in the past using LiMA software to write to the DWP and seek an assurance that their medical report was not altered in any way. If it was altered without their knowledge and they believe that alteration may have made a material difference to the result they should seek advice from a welfare rights specialist.
Claimants who have a medical in the future should request that a copy of the report is printed out and given to them before they leave the Medical Examination centre. Although at the moment it seems likely such a request will be refused, the refusal can be raised as an issue at any subsequent appeal hearing.
In addition, from now on, as a matter of routine, any claimant challenging a decision that they are capable of work should require a written assurance from the decision maker that their medical report has not been altered in any way whatsoever. If no such assurance is given, the issue of the reliability of the report should be raised with the tribunal. If such repeated requests serve to reinforce the message to tribunals that unsigned computer generated LiMA reports are wide open to abuse, that can only be a good thing.
And should anyone find that their medical report was altered without their knowledge and believe that they lost out as a result, we strongly reccomend that you seek advice about the possibility of criminal proceedings against those responsible..
Letter to be used when the claimant is attending a personal capability assessment medical and wishes to be given a copy of the report immediately. Hand this over as soon as the medical has been completed, but be aware that they're very unlikely to agree to give you a copy on the day.
Letter from a claimant who has been found incapable of work in the past and now wishes to check whether the report was altered. (Also available to Organisation members only as a letter written on behalf of a client who has been found incapable of work in the past). Use this if the decision was made some time ago and you either didn't appeal or appealed but were unsuccesful.
Letter from a claimant who is currently challenging a finding that they are capable of work and wishes to discover whether their report has been altered. (Also available to Organisation members only as a letter written on behalf of a client who is currently challenging a finding that they are capable of work). Use this if you are already in the process of appealing a gainst a decision that you are capable of work.
Submission from a claimant to the appeal panel if the decision maker fails to issue an assurance that the report has not been altered in any way. (Also available to Organisation members only as a submission written on behalf of a client). Send this to the Appeals service a week before your hearing if you asked the DWP whether alterations had been made to your report and received no response. Also keep a copy to take along on the day.