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ATOS Lies on Assessment Report-a question please.

wildlifewildlife Posts: 846Member Chatterbox
edited August 14 in Ask a benefits advisor

Scope Advisors,

I have now exhausted the ATOS complaints procedure and my Complaint has been sent to ICE.

In the meantime I have made a Subject Access Request to ATOS who sent it to DWP after providing their own Data and having to comply within 40 days by law DWP have sent me a huge pile of paperwork which contains everything appertaining to my PIP claim including many things we don't normally get to see. I could have left it there but the thought came to me that it doesn't just include factual correct information but things that aren't true. Having told ICO about this they say that they will also investigate anything these "lies" providing I have first given ATOS the opportunity to change them which I have. ICO have a Health Specialist of their own who will take on this task as it involves me sending Medical Records. I even have the harm factor in place having had to call an ambulance after receiving my assessor's report.
 
 My question is does the following section of the Data Protection Act apply in respect of how ATOS or DWP handle and use our personal data. Could they argue they need to use their own incorrect statements to proceed and complete any contract have with them or carry out their legal obligation. Please can you advise me before I take this any further or if you have any opinions as to how ATOS/DWP may react or riggle out of having to alter the relevant documents.      


Stopping your information being used

The Data Protection Act gives you the right to ask an organisation not to hold or use information about you that causes you substantial unwarranted damage or distress. 

If you do this, the organisation has 21 days to respond to your request, and can refuse only if the information that it holds about you is:

• necessary to agree or carrying out a contract which you have entered into
• necessary to carry out any legal obligation that applies to the organisation
• necessary to protect your vital interests

If you think that an organisation has breached the Data Protection Act then under Section 42 of the Data Protection Act you can make a complaint to the ICO

Replies

  • ourvoicesourvoices Posts: 47Member Whisperer
    edited August 8

    Hi @wildlife,

    I hope you don't mind, I too would like to know about this.  I am also putting together my own complaint to Atos about incorrect information and some false information.

    I have mentioned Principle 4 of the Data Protection Act: Personal data shall be accurate and, where necessary, kept up to date - as I believe they are in breach of this principle.

    However, the legislation does say that: The fourth principle is not to be regarded as being contravened by reason of any inaccuracy in personal data which accurately record information obtained by the data controller from the data subject or a third party in a case where

    (a)having regard to the purpose or purposes for which the data were obtained and further processed, the data controller has taken reasonable steps to ensure the accuracy of the data, and

    (b)if the data subject has notified the data controller of the data subject’s view that the data are inaccurate, the data indicate that fact.

    I am also under the impression that the DWP are the Data Controller and Atos are the Data Processor, so no doubt Atos will argue that they are not liable.

    This does seem to give them 'wiggle' room and I'm not used to interpreting the Law, so any help would be welcomed.

  • wildlifewildlife Posts: 846Member Chatterbox
    edited August 14
    @ourvoices I haven't read all this before, where did you find it? It sounds like ATOS have made provision for lies to be got away with, but it won't stop me trying to do something about it.
                    You can make a subject Access Request to ATOS or DWP anytime but I would suggest doing it at a time when you will receive ALL your data if you want to review the whole claim process at the end when you've accepted an award. You don't need to do this you could just go to ICO about your Assessment Report but only after ATOS reject your complaint with them about it. 
                    ICO stands for Information Commissioners Office and they regulate the Personal Data and Freedom of Information Acts. I've rung them several times and it sounds straight forward in getting them to investigate but whether or not the get out clauses you've mentioned will stop it happening I really don't know. It will depend on the nature of the lie I think. My assessor said I did something I didn't do and MOH was witness and will write and sign that it never happened. I can also provide proof of other incorrect content in my report, and ICO will see that so hopefully it will be worth going ahead. You can ring ICO tel: 03031231113 for advice.         
  • ourvoicesourvoices Posts: 47Member Whisperer

    @wildlife;

    I've been trying to find my way round the Data Protection Act legislation: http://www.legislation.gov.uk/ukpga/1998/29/contents and then I came across the website for the ICO:

    https://ico.org.uk/for-organisations/guide-to-data-protection/principle-4-accuracy/#accurate-inaccurate

    I'm guessing I will also need the phone number you have provided.

    It's beyond belief that we are forced to go to such extreme measures. 

    Thank you for your information about your fight to get things put right (ironically poetic).

  • wildlifewildlife Posts: 846Member Chatterbox
    edited August 8
    @ourvoices After studying your wiggle room post, a) The assessor has not taken reasonable steps to ensure accurate data if she has not written what she was told or read the relevant medical evidence that would ensure she wrote accurate information. b) is covered by complaining to ATOS and DWP about the inaccurate data and them not accepting this. I think the last point is the other way round as surely the controller is the person who has control over what is recorded about you and DWP only process the information provided by the "Controller". Again maybe the advisors will know. 
  • wildlifewildlife Posts: 846Member Chatterbox
    edited August 14
    Will, This may be of interest to you or can any of the legal advisors answer my original question, please?
  • marymeehanmarymeehan Posts: 1Member Listener
    I had all this with an a accessor whoe came out and wrote a lot of lies ended up at tribuneral and they more or less said i shoulden be there i havesevere arthritus which i get drip treatment for every two months and i also have copd was on indefianate mobility before they changed it was awarded full rate of both in end my condition gets progressive  over time and mo cure for them so couldnt see how i went from full rate of mobility to nothing 
  • MatildaMatilda Posts: 1,252Member Chatterbox
    Tribunals are impartial and try to get at the truth.  Whereas the assessment companies and DWP are there to exclude as many claimants as possible from PIP, even if the former have to lie to do so.
  • wildlifewildlife Posts: 846Member Chatterbox
    @marymeehan So sorry to hear you weren't treated fairly and had to go to Tribunal. We should not have to put up with this sort of thing in this day and age. I was on the phone to an advisor at ICO this morning and could hardly believe what she was telling me, that I could actually do something about the lies contained on documents held about me. It appears from what @ourvoices has posted that ATOS/DWP have tried to get around this somehow but I think it will depend on the nature of the lie, in other words how blatant it is. I may be one of the few people who has had something written about me that was extremely unlikely to have happened and who had a witness to it never taking place. I now feel I can use this to prove to those people in ATOS and DWP who currently will not accept the incident never happened that yes the assessors do lie. If I don't get this information changed and all the other incorrect statements on record about me they will be used again for my next review and I don't intend for that to happen. 
  • BenefitsTrainingCoBenefitsTrainingCo Posts: 1,371Member, Community advisor Chatterbox
    edited August 14
    Hi @Wildlife,

    This has strayed slightly out of my field of expertise I'm afraid...

    My view is that the issue with the data protection 'get out' is the term 'unwarranted', as the DWP may believe that it is warranted in order for them to process the benefits claim, and that's before they've even started arguing about contracts and legal duties etc.

    That being said, this seems to be more Will's forte, so let's see if he can offer any greater insight! - I'll email him and ask him to have a quick look next time he's on, although that would be earliest next week...

    Mary
    The Benefits Training Co:
    Will Hadwen
    Lee Kempson
    Jayne Knights
    Mary Shone
    Maria Solomon
    David Stickland

  • wildlifewildlife Posts: 846Member Chatterbox
    edited August 14
    Mary, How can it be warranted for DWP to use incorrect medical information about someone. It would only be warranted if the info. was correct when compared to the person's Medical records.  ICO have a Medical Health Specialist who will see from my medical records that the information is incorrect. This isn't just about them handling and using incorrect personal information about me but also having it on record to be referred to for the future. As regards me having a contract with them to process my claim, I would think they have broken their side of the agreement by not making their decision in a fair and proper manner. Their Legal duty would also not have been carried out as it is Illegal to hold false information about someone and even more so to use it in such a way as to cause that person harm. I have spoken to ICO several times to seek advice and to ensure I meet the criteria for a case to be, at least, investigated especially as all the above mentioned things apply to me.
  • JusticeJustice Posts: 168Member Chatterbox
    @Wildlife. I feel that you are correct, obviously I am, not qualified, but I can use Logic as you can. I believe that the definition of fraud is something along the lines of " Falsifying information to cause another person harm or financial loss, even if the harm or financial loss did not take place, but the intent was there"

    After we received my Husbands ESA assessment report I spoke to a Solicitor about this, and he agreed, however there was no way i could take it down the legal route for lack of money, However the assessor in our case was so stupid as to actually contradict himself on three occasions throughout the form!!

    I know the PIP process is a different ball game so I won't go on about it here, but although the systems vary slightly the " Inaccuracies" to put it kindly, remain constant.
    I think you are doing a brilliant job, Pat, remind me never to annoy you :-)
  • wildlifewildlife Posts: 846Member Chatterbox
    @Justice Ha ha, Years ago when my son was at secondary school his "Eminent Head Master" who everyone else was afraid of wouldn't take my unruly (Undiagnosed ADHD) son back after a period of suspension. I went to see him without an appointment with the number of the local press in my pocket. We argued for an hour in his office. In the end he physically put his arm behind his back and gave in to my request for my son to return to school. I was only a midday supervisor at the time.  
                          A thought came to me after reading your post above. When you buy something you enter into a contract, If you are then given the wrong change or the purchase turns out to be faulty you go back and the vendor has to put it right. I haven't seen a clause in any DWP/ATOS/claimant contract that says they can lie, cheat, providing a faulty service and the claimant can't do anything about it!
                         Regarding the legal action. ICE will not investigate your complaint if you have been, or are going through any legal process. That's for the complaint not the Tribunal. After speaking to ICE yesterday I am confident I have a case against both ATOS and DWP. From what I gather ICE cannot change your report or benefit decision but they listen to what you want the end result to be and an acceptance of the lies, an apology, rendering the report unfit for purpose will go a long way to reversing the nightmare I've been through.
                        ICO, on the other hand can change your report if it is proven to not be correct.                 
  • JusticeJustice Posts: 168Member Chatterbox
    @ wildlife. I have always thought, just as you said, that ATOS, DWP ,and the rest of them are NOT above the Law, and that we have every right to complain when they do not do their job properly, just as we would to any other Company.This is something which makes me very very angry, the way they keep passing the buck all the time, and putting the frighteners on people. Well I for one do not scare easily, and if I know I am in the right I will never give up.
    Sometimes though I do wish I wasn't like this, lol. Life would be so much more relaxing :-)

  • wildlifewildlife Posts: 846Member Chatterbox
    edited August 14
    @justice, Unfortunately so many people, weakened by physical/mental incapacity, think that DWP and the assessment companies are above the law. They think of them as having so much power that there's nothing they can do. That brings with it a deterioration in their condition as we all know what a strong connection there is between mind and body. Or should I say mood and body. Feelings of frustration, anger, depression, worry about how they will manage when benefit is denied or reduced are taking their toll. It is for them I am fighting as well as myself. It wouldn't surprise me if I meet a stumbling block before reaching the final hurdle but nothing I have done will be wasted as it will become much clearer how they manage to get away with treating people in such a dishonest manner and getting away with it. 
  • BenefitsTrainingCoBenefitsTrainingCo Posts: 1,371Member, Community advisor Chatterbox
    wildlifewildlife,

    I'm sorry to say that I do not know any more than Mary - in fact, I feel less qualified to comment, as I'm not a lawyer. However, what I would say is that you are doing exactly the right thing - it is ICO's duty to investigate incorrect information written about you, having given the organisation who wrote it a chance to correct it, which you have.

    ICO would not instruct an organisation to award compensation (that is via the complaints procedure, which you are also separately pursuing via ICE). But they could improve the practice of ATOS data collection and reports, which as we all know is very much needed.

    As for the 'get out', no, I don't think so. It could be used if, for example, the DWP/ATOS were holding information about your condition which could upset you ('cause distress') but which was accurate and therefore needed to make lawful decisions. Obligations on the organisations carrying out the assessments cannot ignore existing law on data protection. The Equality Act 2010 also applies (laughable though I know that sometimes is in practice, they are bound by it as they provide a service).

    To argue that incorrect statements were necessary to carry out a contract would be to admit that the contract has targets to ensure a certain number of people do not score enough points - which we are forever being told it doesn't, specifically. If people genuinely score those points, they are entitled (under benefit law, regardless of what any contract says). 

    I also think that the points @ourvoices mentions shows that it is not defensible to hold incorrect information. Looking at that again:

    a)having regard to the purpose or purposes for which the data were obtained and further processed, the data controller has taken reasonable steps to ensure the accuracy of the data, and

    (b)if the data subject has notified the data controller of the data subject’s view that the data are inaccurate, the data indicate that fact.

    Regardless of who is the data controller here, they have NOT taken reasonable steps to ensure accuracy. ATOS clearly haven't, and in my view the DWP haven't either as they routinely accept information that they must know by now isn't reliable (otherwise why would there be so many MR requests and successful appeals), and which often contradicts information provided by medical professionals known to the claimants. Nor does data provided by ATOS to the DWP routinely record that claimants disagree with it. 

    So in my view, they are in breach. I think it would be helpful for as many people as possible to approach the ICO about this.

    Will
    The Benefits Training Co:
    Will Hadwen
    Lee Kempson
    Jayne Knights
    Mary Shone
    Maria Solomon
    David Stickland

  • wildlifewildlife Posts: 846Member Chatterbox
    edited August 14
    Will, Thank-you so much. You have given me the strength to carry on when doubts of a successful outcome were beginning to creep in. It isn't easy to keep going but I will as the memory of what I've been through is still fresh. It is affecting me especially as I have been through a lot of Trauma in my life which should have been taken on board to give me a smooth claim process with no problems. Instead the knife was put in and twisted till I could take no more. I'm speaking form the heart now but fortunately my head also works well to enable me to fight with words that hopefully will make a change. I will keep going and keep posting updates. Thanks again..    
  • BenefitsTrainingCoBenefitsTrainingCo Posts: 1,371Member, Community advisor Chatterbox
    wildlife, it's a pleasure. I do understand how hard this is and how you can start to doubt it's possible to get anywhere - but I do believe that we can improve things eventually. As I've said elsewhere on the forum, a lot of what happens in assessments (including the reports) is an absolute disgrace and we should use any route possible to show them up. If you are able, I would take both the complaint and the ICO investigation as far as possible. It's important for so many people. Will
    The Benefits Training Co:
    Will Hadwen
    Lee Kempson
    Jayne Knights
    Mary Shone
    Maria Solomon
    David Stickland

  • wildlifewildlife Posts: 846Member Chatterbox
    @Will, Yes I know and thank-you for your support. I'm having great difficulty at present trying to keep the 2 cases separate especially as their initials are so similar. With both I'm only at the first hurdle in trying to provide them with the information they need to investigate my concerns. I have been studying the Data Protection Act and found out that Personal Opinions also have regulations so I will include comments from my "Mental State" section on the PA4. These are totally not inside the law. I also have to include the effects seeing my assessment report had on my health  which were extreme whereas I previously thought only ICE would be dealing with this but it also comes under the Data Protection Act. I'm not sure whether ICO will just believe what I tell them is incorrect data or if I have to provide proof of every wrong piece of info. on my report which is a mammoth task. I will just do my best and see how it goes. 
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