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

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Hello guys, this is my first post. I have had numerous issues with PIP since it's introduction. I have autism and chronic fatigue syndrome and suffer from many problems such as anxiety, social problems, eating issues, self care issues etc.

My mother passed away in 2013.

Since PIP has been introduced, I have had it stripped from me twice, all due to untruthful assessment reports. I have had many friends (including one who is blind who had her PIP stripped), zero points as always.

I had my PIP removed after migrating from DLA in 2015 and i had to go to a tribunal to restore my benefit, i won 10 points.

No change in my condition. AR1 form arrived, no change ticked.

New assessment, zero points, now awaiting tribunal, struggling to pay the bills, same story. Even more shocking was the guy on the phone said 'they've billed you, this is a regular thing so you should appeal' 

I have the tribunal case already ongoing.

But i have had a bright idea. I have recordings of my assessments and i think more disabled claimants should try what I have attempted who have been wronged by CAPITA, especially where a tribunal has been won. Note this is the same company who administer parking fines in some circumstances.

It boils down to the fact they write untruths on reports, the opposite of what you say half the time. This would be in my opinion holding false data about yourself under the Data Protection Act and under the new law. 

There is then the second part, re areas of law where they write untruthful statements and pass them onto a third party (the DWP in this case) who then act upon false information and it affects you in a negative way.

With both the above, i think you have a potential claim for damages in the small claims court. I have emailed them back and fourth threatening small claims unless them amend the report to fit with what was on the tape, they have refused and say its the DWPs problem. I gave them a blow by blow breakdown of the untruths and supplied them with the recording.

They are a private company that should be holding correct data about myself.

So I am testing it, i have followed through on my threat and filed small claims proceedings.

I am unsure where this will go, this is hitherto untested waters bar a few cases. I think more disability claimants should consider this, the negative effects these untruthful reports have on you can cause no end of problems. I think the same could be done with ATOS.

I would highly recommend taking someone with you to an assessment, and have it recorded (or do it yourself, whatever their policies evidence can still be usable in small claims)

This is untested waters, but i can imagine if a large number of disability claimants who have been wronged attempted this, it would cost them enough in admin to sort out and pay out if successful that it would make them think twice.

Note this a separate process from the PIP appeals process, the DWP are in no way involved with the small claims case, they made their decision based on false information provided by CAPITA, who will be on the receiving end of a small claims case.

I am posting this in hopes that 1. it may convince others to do the same, and 2. that it helps some. 

Sometimes, we the people must take a stand, especially in this case, they have gone for the sick/disabled long enough.

 

 

1 like, 13 replies

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13 Replies

  • Posted

    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.

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  • Posted

    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.

     

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    • Posted

      I wish you good luck but just for info for you, you do actually need permission to record an assessment. If they catch you doing it and you haven't had the required permission then you risk having the assessment stopped. Your file being returned to DWP and being refused that benefit. I'm not sure who told you that permission isn't needed but it is.

      Just pointing that out incase others read this, which i'm sure they will.

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  • Posted

    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.

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    • Posted

      I never said it was a criminal offence. In all honesty i wouldn't risk having my file returned to DWP, i'd rather have permission to record it to start with.

      I don't know anything about small claims courts so can't really comment on this. As i said before i wish you luck.

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    • Posted

      To record your PIP assessment covertly is not breaking DWP rules until you try to use it against that individual, to actually use it in the form of a verbal recording at a tribunal wouldn't be admissible as you didn't get written consent, you can take a transcript from it but again you have no proof that it was the actual content of the assessment.

      You can clarify this by ringing DWP also remember that DLA and pip are totally different benefits with totally different rules.

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  • Posted

    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.

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    • Posted

      First off the first one was for an employment tribunal, not the same as PIP second one was not a recording it was the transcript not the same thing.

      You obviously know better so good luck using the recording without permission.

      If you have done it before without a problem then you don't need our advice

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  • Posted

    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. 

     

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    • Posted

      Hi,

      I noticed you stated you're leaving the country at the end of the year. If you're planning on moving long term then unfortunately you will no longer qualify for PIP. It's possible to be paid for temporary absence to another country for up to 13 weeks, 26 weeks if you're going for medical treatment. Otherwise it's payable for 4 weeks after you leave the UK.

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  • Posted

    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.
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  • Posted

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

      So what exactly do you mean by that, it sounds like you have already taken it to court by stating you will be awarded a default judgment, that means it's been decided by the courts in your favour and you will be paid by DWP am I correct

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