Friday, 20 December 2013

Thank you for coming .....

Today I appeared at my DWP Tribunal, in spite of taking the time to write the following, I was basically asked how I was feeling today and they would take note of my written submission. Then they wonder why normal folk get annoyed and angry - at least they had the decency to ask me why I was annoyed;

Appeal against ESA ruling

In October 2013 I attended my appointment with my ‘case supervisor’ in the course of the interview I was advised to appeal as it was the DWP staff member’s opinion I was in the wrong group and it was on their advice I have lodged the appeal.

In the course of researching a response to the DWP’s claims made via their ATOS sub-contractor a number of issues have come to my notice which have a direct bearing not just on my case but potentially all appeals against the DWP in Scotland.

Breaches of Human Rights:
1.    In a landmark ruling at the Court of Session, Lord Cooper stated the concept of the ‘Crown in Parliament’ was not recognised by Scots Law or constitutional practice as the longstanding constitutional precept of the ‘considered will of the Scottish people being paramount’ had been preserved for all time by the Treaty of Union. Lord Cooper further stated that the words ‘for all time’ in the Treaty of Union meant exactly that. (McCormack vs the Lord Advocate, 1953) This ruling was recently upheld by the UK Supreme Court in AXA vs the Scottish Parliament where the ruling stated, as part of the reason for refusing the plaintiff’s case, the UK Supreme Court had no power to overturn decisions of the Scottish Parliament which reflected the considered will of the people of Scotland. I have since reviewed the Westminster and Holyrood votes on the introduction of the current DWP policies and note that at both Westminster and Holyrood the majority of Scottish MP’s and MSPs voted against the new policies introduced by Iain Duncan-Smith. In this they were expressing the considered will of the people of Scotland and yet these regulations are being enforced in Scotland – on whose authority and with what constitutional legitimacy?
2.    The UN Special rapporteur indicated that on the balance of evidence the current DWP policy towards claimants was in breach of their Human Rights under the UN Charter of which the UK is a signatory. The Minister of Justice at Westminster – Mr Grayling was unable to tell MPs whether the UK is bound by the EU Charter of Fundamental Rights. A short check on the EU web site reveals the only country with an opt out is Poland, the UK requested no opt out – contrary to Mr Blair’s claims at the time – and the protocol which applies to the UK is merely that the ECHR cannot directly investigate English or Scots Law to ensure compliance with the charter; a charter which became EU law and enforceable in March 2009 on the full implementation of the Lisbon Treaty.

EU Charter of Fundamental Rights - Dignity:
Article 3 (i) Everyone has the right to respect for his or her physical and mental integrity
Article 5:(ii) No one will be required to perform forced or compulsory labour
1.    The methodology of testing and assessment used by ATOS in their health assessment is based round an ipsative format. All such formats are recognised to be, at best 70% accurate for each and every test undertaken, not as a percentage of all tests. Standard operating rules for such a test in the UK requires a face to face interview to discuss the individual test’s findings and review the accuracy of the assessment. This does not happen within the ATOS assessment system as is clear when my first sight of the ATOS Medical Assessment, on behalf of the DWP, was after I had commenced the appeal process. At no point during my initial interview did the DWP case worker discuss this medical assessment; in doing so the DWP and their ATOS agent have failed to respect my physical or mental integrity contrary to the EU Charter on fundamental rights. Let alone failing to follow standard procedure for the use of ipsative testing in the UK. An ipsative testing license also requires that members of staff who make use of data from this source must be properly trained in its use and assessed as being a competent person.
2.    It is also appears that DWP policy is also in breach of Dignity Article 3(i) and Article 5(ii) in attempts to force those with health problems to attend compulsory working groups.
3.    There are chilling comparisons which can be made between current DWP policies, their impact on the vulnerable in society and the Nuremburg Laws of 1934: “Under the "Law against Dangerous Habitual Criminals" of November 1933, the police arrested many Gypsies along with others the Nazis viewed as "asocials", and "work shy", including prostitutes, beggars, chronic alcoholics, and homeless vagrants, and imprisoned them in concentration camps.” Mr Duncan-Smith has already suggested in the Westminster Parliament the possibility of setting up ‘work camps’ for the homeless, the feckless and the unemployed. He talks of ‘forced labour’ which leads to speculation these camps will have a snappy slogan such as ‘Work Makes You Free’ over the gates as the people enter
4.    In a written answer to Michael Meacher MP under a freedom of information request the DWP revealed that around 1000 UK citizens die within six week of being sanctioned by the DPW. Shelter estimate 80,000 people in the UK are now homeless due to DWP extra bedroom sanctions and expect the total to rise by 5,000 more in the period up to Christmas 2013.
5.    What, morally, is the difference between the impact of DWP sanctions and their related death rate of 600 people a month and the Nazi’s gassing or shooting 600 people a month?
6.    Are the courts and tribunals of the UK, blind to what is going on?
7.    Lord’s Denning and Cooper made clear it is the role of courts and tribunals over time immemorial to reign in the excesses of the UK’s political executive when they are in breach of the law and of the constitutional rights of the people in Scotland and England.
8.    I request this tribunal should seek guidance from the Lord President of the Court of Session in the matter of potential and actual breaches of the people of Scotland’s longstanding legal, constitutional and human rights, protected by the Treaty of Union for all time, by the DWP and its agents.
9.    The Court of Appeal has upheld a ruling that the Government's controversial fitness to work test does disadvantage people with mental health problems which casts doubts on any part of the ATOS Testing regime’s competance. (5/12/13) 

The Medical Assessment by ATOS
1.    It is in the public domain that the authors of ATOS medical reports are reliant on internet resources such as ‘Google’ in the creation of their reports. It is also suggested the authors of the ESA85A are not qualified to make decisions on the impact of health conditions on individuals due to their lack of expert knowledge of occupational health, geriatric health, mental health and other issues. There is also evidence in the public domain which makes clear these medical reports are written to achieve UK Government targets (therefore triggering contract bonuses for ATOS) rather than assessing the individuals actual health state and the real impact on the individual’s ability to conduct themselves on a daily basis in clear breach of Dignity: Article 3 (ii) of the EU Charter on Fundamental Rights.
2.    In my case it is clear the DWP have taken no cognisance of previous health assessments by their predecessors in the Benefits Agency which in 1996 stated I would never be fit enough to undertake any employed work due to the medical conditions I have. My own medical advisors sought an agreement to allow me to carry out part time work on health grounds without it affecting my benefit. This I did up until 2005 when I suffered a suspected TIA and, as there is a family history of cerebral aneurism on my father’s side; I ceased part time working to protect my long term health, seeing this TIA event as a warning sign. Now, apparently, according to ATOS I have been cured of all those pre-existing conditions which impact daily on my life which previously had been agreed left me unfit for employment.
3.    I must congratulate ATOS in their amazing power of implementing a health care miracle which would leave Lazarus slack jawed but I am now 17 years older than when a Benefits Agencies full medical board came to their decision. My chronic medical conditions are more chronic and more debilitating simply because I am nearly 60.
4.    Yesterday (28/11/13), for example, when sitting on the toilet I turned my head quickly to the right to see something and then sat there with a severe pain running down my right arm which then turned to numbness of my fourth and fifth digits and related dermatome which lasted over five minutes. Then there is the impact of the days when my fibromyalgia is active which, even with pain control, is marked by sporadic muscle cramps, pain in joints, tender muscles, painful breathing and the sense that someone has kicked me in the testicles with a big pair of tackety boots. These attacks are so debilitating I will routinely sleep for over 12 hours as part of my recovery, be awake for six hours then easily sleep another 12 hours and still feel exhausted. The run up to Armistice Sunday triggered another PTSD/manic depressive cycle which in turn saw me hiding under my duvet for three days and from which I only returned to being a functioning human on the 22nd of November.
5.    How can Dr Hogg make any sensible assessment of my mental state using the information on the ATOS designed form or make any credible judgement under sections 29 or 35 of the DWP regulations? Clearly Dr Hogg in the ESA 85A does not think any of this is sufficiently debilitating or any impairment to employment in a limited capacity. Yet he also says that work is unlikely in the longer term which leaves me confused and stranded in some Franz Kafka style limbo of DWP bureaucratic double speak. I can be put in group ‘A’ because it makes the statistics look good yet actually I should be in group ‘B’. The DWP’s problem is they have put too many folk in group ‘B’ this month so group ‘A’ it is for me and the ATOS manager’s bonus is safe. This is the only way I can make sense of the medical and general assessment.
6.    Just what specialist qualifications does Dr Hogg hold to be deemed an ‘approved disability specialist’?
7.    For example; is he a member of the Royal College of Physicians or the Royal College of General Practitioners – just who has accredited him as a ‘disability specialist’?
8.    ‘Specialist’ has a clear and specific meaning in the health care world and always requires some form of certification of competence in the ‘specialty’ from a recognised academic or professional body. To claim to be a specialist when you are not is in breach of the Medical Registration Act and brings about sanctions for misrepresentation from the General Medical Council, for making false claims with regards to professional qualifications which are not properly attested.
9.    We have a local man who fits stair lifts and who also claims to be an ‘approved disability specialist’‘- he is, at least, ISO 9001 certificated.

1.    All in all, as you may now realise, this process has left me angry, upset and very stressed as a direct result of a DWP Through the Looking Glass World where, like Humpty-Dumpty, words are twisted, bent and warped in time and space to mean just whatever the DWP and Mr Duncan-Smith wants them to mean.
2.    If in the process the ‘clients’ get even more ill, are made homeless or commit suicide, it does not really matter because ATOS get their contract bonuses and Mr Duncan-Smith gets his political statistic to wave at Westminster claiming more success for his program of welfare reforms.
3.    Justice will keep its blindfold on and keep its head down while claiming its powerlessness in the face of Government regulations. Justice empathises with the Mr Thomson’s of this world but our hands are tied while, in true Pontius Pilate style, washing her hands of the grime.

In response?

Thank you for coming, Mr Thomson - was all I got out of them - you will hear in due course what our decision is. My decision is to petition the Court of Session in the New Year seeking to have the UK DWP, Welfare Reform Act 2012, deemed incompetent under Scots Law and constitutional practice.

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