21 November 2006
A recent court ruling opens the door to claimants making secret recordings of disability living allowance and incapacity for work medicals.
As a result, Benefits and Work has written to the DWP asking them to remove their virtual ban on allowing claimants to record medicals. We have informed the Department that if they do not do so within a month, we will publish legal and technical guidance on secret taping for our members.
Employment Appeal Tribunal
The court ruling in question was made by an Employment Appeal Tribunal (EAT) in October 2006. EAT's perform the same appeal function for employment tribunals as Social Security Commissioners hearings do for social security appeals. Indeed, some Social Security Commissioners also sit on EATs. An EAT decision is not binding in any way on the DWP, although it is on employment tribunals. However, the case was important because it looked at the legality of secret taping in a similar setting.
In Chairman and Governors of Amwell View School v Dogherty, a teaching assistant secretly recorded three disciplinary hearings - taping not only the part of the hearings at which she was present but also the private discussions of the panel after she left the room.
The EAT found that there was nothing illegal about what the teaching assistant had done. By a majority they held that, given that the employee could have taken notes, or employed a shorthand writer to take notes for her, a tape recording was simply another way of obtaining a 'script'. They decided that the recordings made whilst the employee was present were thus admissible as evidence but that that there was a sound public policy reason for the private deliberations of a disciplinary panel not being made public. The recordings of those parts of the proceedings were thus not admissible.
Benefits and Work believes that the position of a an employee at a disciplinary hearing and that of a claimant at a medical are similar. Like employees at a disciplinary hearing, claimants are entitled to take notes or to have someone else present taking notes. In addition, the powers of social security tribunals to decide what evidence they will hear are very similar to those of employment tribunals. The decision is thus potentially very important to benefits claimants.
The DWP's current position on taping of medicals is contained in the Guidance for Examining Medical Practitioners which states that the doctor has to give consent for a recording to be made and:
"The recording must be made by a professional operator, on equipment of a high standard, properly calibrated by a qualified engineer immediately prior to the recording being made. The equipment must have facility for reproduction so that a copy of the tape can be retained by all parties.
The responsibility for meeting the cost of the above requirement rests with the claimant."
Clearly these requirements are designed to make it financially impossible for a claimant to get agreement to record their medical - they are just another way of saying no. The guidance goes on to state that:
"It is for Medical Services, in conjunction with their legal advisers, to determine the action to be taken in the event of a claimant making an audio or video recording without the prior knowledge and consent of the examining doctor, or without ensuring that the safeguards defined above are in place."
We believe that the EAT's ruling exposes the DWP's position as one that is as legally unenforceable as it is morally unjust.
It is very common for claimants to dispute the accuracy of the record made by a Medical Services doctor. Indeed, this author took notes at an incapacity medical only a few weeks ago at which evidence on shopping never given by the claimant nonetheless appeared in the computer generated report. Tribunals often have to make findings of fact on such matters and the claimant is always, at a big disadvantage. It is extremely difficult to be medically examined and write detailed notes at the same time and many claimants do not have anyone they can bring to a medical. Even if they do have a companion, very few will have one who is also a skilled shorthand writer who can take verbatim notes of the proceedings. The result is that usually the only written record of the event is the one created by the doctor.
Clearly recordings would put both parties on an equal footing. It would cost very little for the DWP to install recording equipment in all Medical Examination Centres in order to be able to offer claimants a video or sound recording of their medical. Equally the DWP could provide doctors doing home visits with a digital tape recorder and a microphone. The result would be that the vast majority of disputes about what evidence a claimant gave, or did not give, could be resolved before the matter got to a tribunal. The number of appeals would be cut and those that did take place would be correspondingly shorter.
Benefits and Work does not believe the current situation should be allowed to continue. We have written to the DWP, enclosing a copy of this article and asking that they withdraw their current guidance to doctors on recording medicals. We have explained that, if we do not receive a satisfactory response within one calendar month, we will create and publish a guide to lawfully recording DWP medicals, both openly and, should claimants so choose, secretly.
We have no doubt that we will be accused of acting irresponsibly if we support claimants in making clandestine recordings. But if trying to ensure that accurate evidence is placed before tribunals is irresponsible then we are more than ready to be reckless. Until our guide is produced, however, we would strongly urge claimants not to tape medicals without first obtaining legal advice.
For your eyes only
The proposed guide will also cover how to legally tape telephone conversations with the DWP: the law is different for telephone calls. Again, please get legal advice if you're thinking of recording calls. In the meantime, we would be very pleased to hear from anyone with experience, knowledge or opinions on the best, and most cost effective, ways of recording medicals and telephone calls: our office currently lacks a James Bond figure.