12 February 2007
Benefits and Work believes the way is now clear for claimants to secretly, but legally, record DWP medicals, interviews and phone calls, provided they keep to a single golden rule.
This follows our receipt of a letter from the DWP containing legal advice obtained by the Department on the matter.
Back in November Benefits and Work's wrote to the DWP warning that unless they removed their virtual ban on claimants openly recording medicals we would publish detailed information on making secret recordings.
The DWP's current position is that recordings of medicals can only take place if the examining doctor agrees to it. Even then the claimant must pay for, and provide, a qualified sound engineer to be present with professional recording equipment throughout the medical. The guidance warns that the DWP will decide what legal action will be taken against claimants who are caught secretly taping medicals.
In our letter to the DWP we drew their attention to recent court ruling by an Employment Appeal Tribunal in which it was held that secret recordings of disciplinary hearings by a dismissed employee should have been allowed as evidence by an employment tribunal. We suggested that the same principle applies to social security tribunals and that the DWP's insistence on the provision by claimants of a professional sound engineer was so unreasonable as to amount to a virtual ban on recording.
What wasn't said
The DWP clearly sought proper legal advice on this occasion and their response comes in four parts. However, it was what was not included in their reply that is most telling. The DWP at no point try to argue that there is anything illegal about claimants secretly taping medicals, they address themselves solely to the issue of whether such tapes might be accepted as evidence by tribunals. This very strongly suggests that the DWP have accepted that there is no legal bar to secret taping by claimants and that there is no legal action which can be taken against claimants who do so.
The DWP's first point is:
Firstly the EAT is a completely different Tribunal to the Social Security Commissioners (SSC) and what may be considered to be binding on the EAT is in no way binding on the SSC. Also employers sitting on a disciplinary hearing are acting in a quasi-judicial capacity whereas the examination is an empirical exercise designed to provide medical evidence of the claimant's level of disability.
It is quite untrue that Employment Appeal Tribunals (EAT) and Social Security Commissioners are 'completely different': in fact the rules of evidence for both tribunals are very similar in that they are virtually non-existent: both jurisdictions have enormous freedom to allow evidence that would never be permitted in more formal courts. Moreover, Benefits and Work never sought to argue that an EAT decision was binding on a social security appeal tribunal, merely that the principles set out in the EAT decision could be applied equally pertinently to a social security appeal.
The assertion that employers are acting in a quasi-judicial capacity is both questionable and, so far as we can see, irrelevant to whether or not a secret taping is unlawful and to whether such tapes may be admissible as evidence at appeal hearings.
The DWP's second point seems to entirely support our position:
Secondly, the SSC like the EAT, is not bound by the strict rules of evidence that apply in the civil courts. By and large they are responsible for regulating their own procedure and can admit evidence if they consider it to be probative to the issues in question and not merely prejudicial. To that extent they may be willing to consider the admission of electronically recorded evidence if they consider it to have a bearing on the case. This may be so whether the recording is made overtly or covertly.
In other words, the tribunal initially, and the Social Security Commissioners if the matter is appealed further, can admit recordings of a medical, even if they have been covertly obtained, provided they appear to be relevant.
Facts of the case
The DWP's third point is again one we would entirely agree with:
Thirdly, if a covert recording of a medical examination for DLA is made and the Claimant wishes to adduce it as evidence before the SSC then whether it is admitted is a matter that will turn on the facts of each case. Issues such whether it is germane to the issues in point, the quality and the possibility of tampering will all have to be considered by the Commissioners.
Thus, whether a tape should be admitted is likely to depend on whether there is relevant evidence on it: for example, the claimant argues that it shows that they said that they didn't go shopping in supermarkets but the doctor has stated that they said they shop weekly in a supermarket. Clearly such issues as relevance, whether the tape is audible and whether it is possible or probable that it has been altered in some way are all factors that tribunals have a right and a duty to consider.
We would entirely disagree with the fourth and final statement:
Fourthly, recordings of such examinations are not banned and the Department's current stance in the matter in is not considered to be unreasonable.
Not considered to be unreasonable by whom?
In truth, the cost to claimants is so prohibitive that it does amount to a virtual ban. In addition, the DWP imposes no such similar duties on itself when it tapes claimants telephone calls: professional sound engineers are not even present where interviews are taped under caution. Clearly, where it suits the DWP to have evidence recorded it will do so as it pleases and without informing the claimant in many cases. Where it doesn't suit the DWP it will invent impossibly costly rules and make spurious threats of legal action if claimants fail to follow them.
We would argue that the DWP's current stance cannot be seen as reasonable by anyone other than the DWP.
The golden rule
Benefits and Work will be producing detailed information on taping medicals, interviews and phone calls, as soon as we manage to find the time. Meanwhile, we believe that the practice is legal provided claimants follow one golden rule:
make the recording for your own use only.
In other words, do not play the recording to other people or publish it on the internet. If you make a recording and you wish subsequently to use it as part of a complaint to the DWP or as part of the appeals process, then send the relevant office a transcript of the pertinent part of the tape. If someone, a tribunal chair for example, then asks for a copy of the recording then it is fine to send it them, but in no other circumstances should you play it or pass it on to other people. You should certainly not do so simply to embarrass or attack the DWP, if you wish to be certain that your actions are lawful.
Little Brother is watching you
We have all become accustomed to, if not happy about, the state and large companies recording us as they please, with apparent impunity. Perhaps the time has come for individual claimants to turn the same surveillance techniques back on Big Brother. After all, if they're not doing anything wrong, what have they got to worry about?
If you want to research the legal position further, Ofcom's information on whether it is legal to secretly tape phone calls is a good place to start: