Time to take a stand re PIP assessments: Small Claims Court - CAPITA PLC

Hi,

Did you have permission to record the assessment, because you say you issued them with a recording?

Either way i wish you good luck with this. Please do remember though that if you do lose your case then you could end up paying all the court costs. That in itself would be a worry for everyone. I think you're very brave doing this. I know i couldn't afford to pay those costs if i lost and i'm sure there's many many others that couldn't either.

That and all the stress, i know for a fact that my health couldn't take that. You're very brave indeed. Please do come back and let us know the outcome, i'd been very interested to know.

The assessor was aware it was being recorded, if that's what you mean. Took a bit of persuading though at the beginning. Nominally though, permission isn't needed. I have had recordings that were covert admitted to small claims cases in the past. It is up to the judge what is admitted, nominally. Having a transcript helps the case though as well.

It is quite rare for them to award high levels of court costs on the small claims track to be paid by the losing party, and they are capped. If you go beyond small claims though, the risk is very high.

This is small claims court and the risk is much lower. I feel like I need to do this because its something that has gone on for far too long. My health isn't that good, but really it is worth the attempt given the low financial risk, and I am sure i have evidence to backup my claim along with witnesses to both the 2015 and 2018 assessments. I am more doing this so that the information may be of aid to others, so if i win/lose, i can then share that to lets others who are attempting to do it know.

I think its worth a try. I do still have my previous solicitor's information about the 2015 assessment using a nurse who was not qualified in mental health among other things as well. I have a 2015 assessment recording (covert, no permission) that was admitted by the tribunal judge as evidence as well. That helped me win the initial tribunal case along with oral evidence.

The 2018 assessment was taped with the permission of the assessor, although it took much wrangling to tape it and i provided the assessor with a copy (they don't seem to have it, strange). For me, we are claiming for the personal self care issues and social issues, not mobility. 

If you go outside of the small claims track, the potential costs for the losing side are not worth to risk it, but small claims has much lower levels of risk.

I will keep you all updated as to how the case progresses. Weather it be a positive or negative outcome, i will share it here. I just hope this could be the start of opening the floodgates for many others. A couple of others have been successful doing it with ATOS.

 

You are talking about CAPITA's / DWPs rules and not legislation re covert recordings. I actually successfully used a covert recording at a 2015 PIP tribunal to help my case.

If they catch you taping it during the assessment, they close the file and deny you the benefit due to 'company policy' but it is not actually a criminal offence and having a covert recording is better than no recording if it came to an appeal. I have assisted others with covert recordings at employment tribunals before and often if they were the only way of proving it, the judges would often allow them as evidence provided you transcribed it first.

In the case of the 2018 assessment we did it with permission but they misplaced their copy of the recording (this is the recording we are using in small claims). It is clearly audible on the tape that the assessor knew it was being taped.

Another thing is to take a witness with you as that can often be as good as having a recording, especially if they take notes on what is said.

Thing is, the covert 2015 one WAS accepted by the tribunal and was used to help me win my case. It is down to the judge's discretion when these sort of things arrive in court, regardless of how the evidence was acquired.

An example is here (an employment tribunal): https://www.peoplemanagement.co.uk/experts/legal/covert-recordings-tribunal-evidence

"The decision is a reminder for employers of the legal principle that the fact a recording is covert does not mean the ET will automatically refuse to allow it to be relied upon. Also, while it may be an obvious practical point, the risk of having this sort of dispute can be avoided if private panel discussions take place away from the meeting room in which a participant may have left a mobile telephone in voice recording mode."

An example of it happening in PIP is here: https://www.benefitsandwork.co.uk/news/3671-secret-pip-assessment-recording-leads-to-appeal-tribunal-win

The DWP tried to block this particular request, but the judge still accepted it.

Well i will agree it is still better to get permission if you have the option, as it removes the variability on it's admissibility that may vary from judge to judge.

It is just that if someone already has taped it and are facing potential appeal problems, then its better than having no recording to begin with.

I think though its best to take it the official route of them knowing if that is an option but if your caught on the hop then its best.

I have used both covert/non covert correctly in cases. I think the main thing why i posted this is because if i am successful i wish to release a guide to help others do the same thing. The recording isn't the only evidence here as I have a witness statement and other evidence to validate the data being incorrect, note that I am approaching the angle of taking CAPITA to small claims as to their incorrect handling of personal data (the report being incorrect and not what we told them, and their refusal to correct it) and the negative consequences of that.

If unsuccessful then its unsuccessful, if successful then i will write a guide and post back here.

I have been going through this: review -> lose benefit -> appeal -> tribunal -> benefit restored for over a decade now.

I am leaving the country at the end of the year to peruse a remote working job opportunity abroad with my business with my Asian partner in rural Nepal (yes with a good internet connection) to free myself from the benefits system as I have slowly built up a remote based business and i no longer needed ESA for a while as my business turned over enough to survive without it, PIP was non means tested and helped cover the extra costs due to my disability.  The second aspect of this is the loss of my PIP meant i couldn't get my partner a visa to move here due to the financial requirement (£18,500 a year) and he would really support me with my difficulties and has done whenever he has come on tourist visas but he can only stay in the country six months out of a year and can't work.

It has been a long road, but i feel that even if I am becoming self-sufficient now, i worry for those who do depend upon this without this option so I thought i would attempt this to hopefully be of aid. I didn't sue for the maximum, only around £1k, i don't want to be greedy and i want to test to see if the angle of data protection would be accepted by a small claims court for damages due to the consequences of these invalid reports. I was nearly made homeless in 2015 when I lost my PIP as i lost all disability premiums and everything else, i was already paying a rent shortfall, my savings ran out just as I won my tribunal last time.

My advice re the recording is to get permission IF YOU CAN but if you are reading this and already have a covert one, its better than nothing but get it transcribed as they often ask for both the recording and the transcript. So i do agree with the advice to get permission as it can reduce the variance of getting it accepted.

In this case i asked them for months to correct the medical report along with proof (notably, they said i said i was top student at math, while i had certificates proving a G grade) and other untruths for which i had proof to back up otherwise. They even had the cheek to tell me the data protection legislation doesn't apply which is why i opted to go down this route.

Never go higher than small claims though, as that is when you can become liable for ridiculously high court costs if you lose. In small claims the costs if you lose are much smaller in comparison and even then only if you acted unreasonably in taking the case.

I will keep you all updated as to what happens, and thanks very much for giving advice, its nice people look out for each other. 

 

Thanks for your response. I am well aware my PIP will stop once I have left. I am still appealing so i can get the backpay for the time I would have been owed it before leaving, but once I have left I understand it will stop. Most benefits are not portable outside of the EU.

Small update, I have requested judgement as they have ignored the claim form. Looks like I will be getting a default judgement.