In earlier articles we have considered various issues relating to applications and assessments for benefits, particularly Personal Independence Payment (PIP), Employment and Support Allowance (ESA) and Universal Credit (UC). A particular focus has been the understandable concern of applicants as to what to expect at the face-to-face assessment stage of the process. Feedback from our article, ‘Work Capability Assessments: who are the assessors?’, suggests that many applicants are entirely unaware of just how limited are the qualification requirements for assessors and the experience of many is that information provided is regularly misinterpreted and/or recorded inaccurately or out of context.
With that in mind, it comes as little surprise that applicants ask “can I record my PIP assessment?”
What is PIP?
Personal Independence Payment (PIP), which replaced Disability Living Allowance (DLA), is a non-means tested benefit paid to people between the ages of 16 and 64 who require additional help as a result of long-term illness, disability or a mental health condition. At the time of writing, the amount payable is between £23.20 and £148.85 per week.
Citizens Advice provides excellent guidance on completing the application form. Following submission of the application, the next stage for most applicants is an assessment with “an independent health professional”. It is at this stage that the success or otherwise of your application falls into the hands of a third party and one who may be entirely unfamiliar with your condition. Currently, the government contract with two companies to carry out assessments, Atos and Capita.
The problem of widespread misinterpretation and poor recording of information by these “independent health professional[s]” seems at last to have been acknowledged by the government who have now announced a pilot scheme where PIP assessments will be video recorded. This announcement may be due in part to the revelation that the vast majority of appeals against refusal of benefit are successful, which clearly supports the fact that there is a significant problem in the application/assessment process.
To help address any problems later on, can I record my assessment?
The simple answer is yes. It’s even a scenario that is expressly catered for by the DWP in their guidance for assessment providers, which are set out in full here:
Audio recording of PIP consultations
The audio recording of face-to-face consultations is not currently part of the contractual specification for PIP assessments.
Claimants may use their own equipment to audio record their face-to-face consultation, should they wish to, subject to any reasonable conditions the DWP chooses to impose on such recordings. These reasonable conditions are:
- the claimant must inform the [Assessment Provider] in advance that they wish to audio record their consultation. This is to allow the [Assessment Provider] to ensure that the [Healthcare Professional] scheduled to carry out the consultation is willing to be recorded. If the [Healthcare Professional] is unwilling to be audio recorded, an alternative appointment should be made with a [Healthcare Professional] who is willing
- the claimant must be able to provide a complete and accurate copy of the audio recording to the [Healthcare Professional] at the end of the consultation. For this reason, certain devices that are capable of editing, real-time streaming or video recording the session are not approved. Non-approved devices include (but are not limited to) PCs, tablets, smart phones, MP3 players, smart watches, and devices that are not capable of providing a verifiable media copy that can be easily checked during the assessment. Acceptable formats for such recordings are restricted to CD and audio cassette only
- the claimant must sign a consent form in which they agree to provide a copy of the audio recording and not use the audio recording for unlawful purposes
[Assessment Providers] must publicise these conditions and ideally include them in communications sent to claimants before they attend a face-to-face consultation.
Video recording of consultations is not permitted. This is to ensure the safety and privacy of staff and other claimants.
Restrictions on claimants’ use of recordings
If it is only the claimant’s personal data that is being recorded then there are no restrictions on the use the claimant can make of the recording. However, the DWP reserves the right to take appropriate action where the recording is used for unlawful purposes – for example, if it is altered and published for malicious reasons.
However, as can be seen, it is not as simple as turning up and recording the assessment on your phone. In fact, the guidelines expressly prohibit the use of “PCs, tablets, smart phones, MP3 players, smart watches, and devices that are not capable of providing a verifiable media copy that can be easily checked during the assessment”. We will return to allowable technology below.
The first requirement is to give advance notice to the assessment provider of your intention to record the session. No specific timescale is mentioned in the guidelines, although ATOS say that at least 3 days’ notice is required.
You will then be provided with a consent form “in which [you] agree to provide a copy of the audio recording and not use the audio recording for unlawful purposes”.
As long as the guidelines are adhered to, your request cannot reasonably be refused, although individual health professionals can object to being recorded. Should that happen, “an alternative appointment should be made with an HP who is willing”, which will of course mean delay.
As a result of their stated concern regarding devices capable of “editing, real-time streaming or video recording the session….Acceptable formats for such recordings are restricted to CD and audio cassette only”. Further, “the claimant must be able to provide a complete and accurate copy of the audio recording to the HP at the end of the consultation.”
So, in order to record the assessment, an applicant must provide at their own expense, a device or devices which most consider to be ‘old technology’ (particularly in the case of an “audio cassette”!) which can produce simultaneously, two copies of the recording, one of which must be handed to the health professional at the conclusion of the assessment.
You may be fortunate to have access to the necessary equipment, but for most that is unlikely.
Should you be fortunate to have several hundred pounds available, there is dedicated technology which fits the bill. Again, that is unlikely.
Portable CD recorders tend to be bulky and even second-hand ones can be expensive. Multiply that by two for the simultaneous recording and not only does the dedicated technology above begin to look comparable in price, but it is bordering on the impractical to get all of the equipment to the assessment and set it all up.
The cheapest option is probably to head to ebay or similar to buy a couple of second-hand portable audio cassette recorders and some new cassettes – yes, they are still available! Even so, this is likely to set you back £50 to £70. It goes without saying that you should practice using the recorders at home to ensure they function properly and any settings are set at optimum levels. It’s also important to write your details on the copy of the cassette that you hand to the health professional, in case it goes astray. There seems to be some ambiguity as to whether the small audio cassettes from dictaphones are acceptable. In light of that, they are probably best avoided.
You should also bear in mind that your ability to transport and set up the recording equipment will form part of your assessment, although you are permitted to bring a companion with you who can assist.
Can I covertly record my assessment?
The DWP guidance is quite clear:
Covert recording of consultations
If the [Healthcare Professional] notices that a claimant is covertly recording their consultation, the restrictions relating to the recording of consultations should be explained to the claimant. If the [Healthcare Professional] is content to be recorded, the claimant is content to sign the agreement form and the claimant’s equipment meets the specified requirements, the consultation can continue. If this is not the case the claimant should be asked to stop recording. If the claimant refuses, the consultation should be terminated and the case should be returned to the DWP using the return assessment function with reason failure to participate. The [Case Manager] will consider whether the claimant has good reason for failing to participate in the consultation.
In other words, covert recording really isn’t a good idea, particular when there is an express procedure in place for recording the assessment – however impractical or expensive that may be.
Ultimately, in almost every case, a recording is made with a view to it being available if required in any subsequent appeal against the refusal of PIP or the amount PIP awarded. Laws of evidence dictate what a tribunal judge can and cannot take into consideration in reaching their decision and whilst judges do have a degree of discretion, you have a substantially better prospect of the judge agreeing to consider a recording obtained in accordance with the required procedure (or a formal transcript of it), than one obtained covertly.
Also, should the healthcare provider ‘rumble’ that you are recording covertly, there is a significant risk that they will terminate the assessment, which could delay your application considerably.
Whether or not you choose to record the session, you are perfectly entitled to take a companion with you; indeed, ATOS seem to actively encourage that. When choosing a companion, if at all possible take somebody who is able to take notes and who knows you well enough that, if required, they can make a positive contribution to the assessment. This person and their notes could also be very helpful should there be any subsequent disagreement over what was said, or its context.
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About the author
Solicitor Richard Lowes co-founded the first legal team in the UK specialising in representing people suffering CRPS and other debilitating chronic pain conditions. Richard is a popular speaker on the subject of chronic pain in litigation and remains an inveterate blogger.