ESA Fit To Work Decisions and Reconsiderations - Rough Justice for Sick and Disabled People

From October 2013 anyone wishing to appeal a fit-to-work decision will have to ask the DWP to reconsider before they can appeal to the tribunals service. The revised appeals process is called "mandatory reconsideration" and the government has refused to set a time limit for how long the DWP should take to complete each case. During this time claimants who were on Employment and Support Allowance will no longer be allowed to claim the sickness benefit and will be automatically transferred to Jobseekers Allowance or have to do without an income until a revised decision has been made.

All too often the computer-based work capability assessment results in an incorrect decision being made which can have devastating financial and emotional consequences for those concerned. There have been more than 600,000 appeals since ESA was introduced which cost an additional £50 million each year on top of the £112 million paid to Atos to carry out the assessments. In fact 38% of these decisions are overturned in the claimants favour when they appeal, casting serious doubt on the accuracy of the assessments.

The Public Accounts Committee recently investigated the contract between the DWP and Atos, the company contracted to carry out 738,000 work capability assessments in 2011-12. The report stated,

"The Work Capability Assessment may unduly penalise people with specific health problems. The one size fits all approach is not appropriate for particular groups, for example, people with mental health, rare or variable conditions. The process is too inflexible and makes it extremely difficult for individuals with particular conditions to demonstrate the impact of their conditions on their ability to work. Too often the process is so stressful for applicants that it can impact on their health. The Department should assess whether the Work Capability Assessment process is unfair to these claimants."

Negotiating the legal points of the benefit system is a complicated process and Citizens Advice estimate the success rate at appeal when people have access to legal advice and representation rises to around 80%. Ministers have responded to the alarming numbers of incorrect decisions being overturned at independent tribunals not by holding Atos and the DWP to account for their failures as recommended by the Committee, but by scrapping legal aid which helps people to challenge bad decisions and making specialist benefit advisors redundant in the process.

There is a serious and alarming possibility that in the near future sick and disabled people will be made penniless during the period of mandatory reconsideration which has no time limit to complete. ESA will no longer be paid during this time. When I asked for a reconsideration last year, I had to wait four months for the DWP to sort things out. I was lucky, I do know of people who have have been effectively left in ESA limbo for many months longer than that. Currently people can still get ESA during the reconsideration process, at a rate which is the equivalent amount to Jobseekers Allowance, provided they can obtain regular 'fit-notes' from their doctors to prove they are not capable of seeking work. The changes will deter people from pursuing justice and fail to support some of the most vulnerable people to get the benefits they need and are entitled to, leaving them to turn to family, friends, or worse, foodbanks, whilst the DWP sort out their mistake. I wrote to my MP and asked him to contact the Minister for Welfare to find out what would happen to people who had sick notes from their doctors and would not be eligible for Jobseekers Allowance because they were too ill to meet the strict conditions of applying for work attached to the benefit. The answer is not forthcoming (see letter below this post). It would appear that the government is under no legal obligation to provide an income to sick people failed by the benefits system.

Anyone needing to appeal a decision after the mandatory reconsideration will have to apply directly to Her Majesty's Court and Tribunals Service which will add confusion to an already bewildering process for many people, especially those with mental health problems and learning disabilities. Transferring people to another benefit such as Jobseekers Allowance or Universal Credit and then placing them back on ESA once they are given leave to appeal or the DWP have accepted that they are not well enough to work is going to complicate matters and cause problems, rather than simplifying the system.

It is unlikely that a reconsideration will take less than a month, as Lord Freud, the Minister for Welfare points out in his response to Dave Watts MP,

"The length of time taken to complete mandatory reconsideration will vary from case to case. This will be dependent on whether additional medical evidence is required, and if so, how quickly it is provided by the claimant. Where the Department requests additional evidence, regulations state that the Department must allow one month for the claimants to supply it, so these cases could take in excess of one month to process."

I know how long medical records take to obtain because I've sent for my own. The very day I received my ESA50 I applied in writing for my medical history and had to pay my GP £50 for the privilege. Despite haranguing the practice manager on a regular basis, they still took six weeks to make photocopies and then I discovered that everything after 2005 was missing. Four weeks to return the ESA application and attach the relevant medical notes is farcical. Why don't they simply give people more time to gather evidence and continue to give them ESA (at the reduced rate) until the decision is sorted? I understand that some GPs and consultants are charging extortionate fees for letters relating to benefit claims. This coupled with a loss of legal aid which helped to pay for medical evidence is going to have dire consequences and be a disaster for some of the most vulnerable people the benefits system was supposed to be designed to help.

WOW Campaign is deeply concerned that the policy is being driven by the government's desire to cut the cost of appeals. The fitness-to-work tests are not fit for purpose and no justice will be served until they are scrapped and replaced with a fair assessment. We are alarmed that vulnerable claimants will be dissuaded from proceeding with their appeal because they may have no one to help them and the process is taking too long. People are waiting months from their inital application to the face-to-face assessment. Months more for a decision to be made by the DWP. Months more for their appeal to be heard and then the whole process starts again in an endless cycle of assessment and reassessment. When people are forced off ESA whilst they wait they may give up altogether. Those who turn to Jobseekers Allowance may face the possibility of being sanctioned because they are sick and not able to fulfil the conditions of seeking work, be placed on inappropriate work program placements because Jobcentre advisors are not equipped and trained to deal with incapacity and disability, and some will have to try and survive with no income at all.

Sources:
http://www.guardian.co.uk/society/2013/apr/02/disability-benefits-welfare-legal-aid
http://www.citizensadvice.org.uk/press_20130117
http://www.publications.parliament.uk/pa/cm201213/cmselect/cmpubacc/744/74402.htm
http://www.guardian.co.uk/society/2013/feb/08/dwp-fitness-to-work-fiasco
http://www.dwp.gov.uk/adviser/updates/appls-process-changesl/
http://www.publications.parliament.uk/pa/ld201213/ldhansrd/text/130213-0003.htm
http://www.nhs.uk/chq/pages/1309.aspx?categoryid=68

The Lump Hammer Approach to the Work Capability Assessment

Explaining an invisible illness to someone isn't easy at the best of times. When you suffer from a mental health condition, it can be difficult and traumatic to translate the troublesome thoughts and feelings running through your head into words. People tend to be alarmed by behaviour and ideas that they can't relate to themselves and you soon learn that it's probably better to keep your personal horrors hidden from your friends and family and make up more acceptable excuses for yourself when you don't feel well. Mental health professionals generally know that people feel stigmatised and frightened to open up. That they're scared of speaking out because it can be confusing and upsetting and there are no simple solutions. They tread carefully at first on tip-toes around you. Little by little they build a professional relationship based upon the solid foundations of your trust. A good therapist offers a sensitive ear to your troubles and waits patiently until you feel stable, comfortable and ready to share your inner depths. They listen and put you at your ease....

...which is far from the reality of the work capability assessment. The face-to-face assessment has all the sensitivity of a blunt lump hammer bashed against your skull to knock the answers they demand right out of you with thumping great whacks. No moment is given to recover from your upset here my friends. Your time is their money.

The face-to-face assessment was scheduled to be done at my home because of the nature of my illness. It was a huge relief that they had accepted and believed my difficulties demanded it. My last assessment was just twelve months ago and despite having a long-term history of chronic anxiety conditions, more therapy than Ruby Wax (not possible) and a poor prognosis, following a fit to work decision and a battle, I was placed in the work related activity group. Thank the Holy Lord and mother nature herself that no one from the jobcentre has ever contacted me. I could not have coped if they had.

The Atos health care professional was not the person named on the letter. When he arrived my heart sank. It was the same man as last time. The same man who twisted and manipulated my answers and wrote a work of fiction about me on his report. I hadn't been expecting a fair or reasonable assessment however. At least this time I knew not to trust. I had been dreading it. Effectively two months had been wiped from my life with worry and stress. I couldn't think of anything else. The apprehension grabs you by the guts and twists them until you're curled up in a quivering foetal ball. I could barely function for fear of what was going to happen next. Suffice to say the night before sleep had eluded me. By the time he arrived in the morning I was ragged and a little bit delirious.

Ten whole minutes of rapid fire questions followed. Barely time to catch my breath, yet alone my composure, which crumbled when he asked me to describe a panic attack. Despite enduring possibly thousands of panic attacks, right there and then under this pressure my mind was a blank vacuum of emptiness. I just couldn't think and hot tears swelled in my eyes so I had to cover my face with my hands. My thoughts dried up, my throat constricted, my voice cracked and words would not come. He was perched on the end of the settee tapping his pen. I noticed him turn his wrist to look at his watch.

"Did I take medication?" I shook my head and told him, no. His scribbled with his pen and I hastily added that I didn't take medication because the side effects had been intolerable and in the past had made my condition significantly worse. I noticed that the pen didn't write this clarification down on paper.

"Did I ring the doctors myself?" I had to think for a moment, "sometimes" I said. I'm familiar with my GPs surgery and it's probably the one place on this earth that I'm not too afraid to ring. Had he asked if I rang the hairdressers, or the dentists, or the DWP, I would have said no, never, because I am too anxious.

"Do I go there by myself?" I do yes, because it's literally around the corner, takes less than a minute to reach by car and you can park right outside the door. "So you walk to the doctors yourself?" he enquired and started to write the answer down before I had started to speak. "No! I am taken there!" because I can't walk that far without panicking. Once again, his pen lay still in his hand.

Two sheets of A4 paper were completed, and with that he opened his briefcase, placed the forms inside and clipped it shut. He said that I didn't need to see him out, and with that, he was through the door and gone, leaving me huddled on the chair feeling stunned and bewildered, as if I'd just been violated in some way. It was over so quickly I didn't really know what to feel. Certainly I was relieved that it was done and dusted, but if that was a credible and fair assessment to reflect a fifteen year history of a crippling mental health condition, I am very worried. I have no idea if he's read my detailed forms and the assessment was a mere formality, or if he's made up his mind already to find me fit to work.

Once the dreaded (white) envelope of doom arrives, you have exactly four weeks from the date it was issued to complete and return the ESA50 forms contained inside. What these forms fail to mention is that for each question you complete, you will awarded a set amount of points from zero to fifteen. You need at least 15 to "pass". However which way you finally get to the stage where you're given the benefit you are legally entitled to, be that as a direct result of the assessment, by a reconsideration of a fit to work decision, or at an independent tribunal, it is extremely disconcerting to feel that you have succeeded in "passing the exam" because someone with no medical training acknowledged the severity of your illness. It really does feel as if your illness is on trial.

How Atos will interpret your answers is something of a mystery. The questions are vague and ambiguous and perhaps in the majority of cases, bear no relation to the real life limitations to work your condition poses. People who are mostly housebound and need someone to support them to go outside cannot score enough points on that particular activity to be awarded the benefit. People who are not aggressive or violent every day, but only some days, cannot score enough points to be awarded the benefit. Okay, so there is a clause which states that if work will cause you or others harm there is some discretion in the decision making process. The problem in reality, is proving to them that is the case. In order to try and understand what was actually being asked of me, it took me almost the whole month to complete the few answers I believe might possibly be relevant to my mental health condition. It is a miserable experience, and utterly demoralising and soul destroying to have to go over and over the very worst aspects of your ill health. By the end of the process you're emotionally battered and more unwell than when you started.

Mark Hoban, the minister for Work and Pensions would have you think the reason why at least 40% of fit to work decisions are overturned at appeal is because additional medical evidence was presented to back up the claims. I challenge the minister to obtain his medical history within this narrow time frame and see if he can do it without having to pay. The maximum your GP surgery can charge for copying your medical records is £50, which is precisely the sum that I was charged. I contacted the GP surgery the day I received the forms. I was told to put my request in writing. That letter was delivered to them within hours. It took six weeks to get hold of some of the documents, but they had missed off everything from 2005 to date. That afternoon, I confess, I cried.

I hope that the clerk at the DWP who makes the final decision does read the two inches thick paper documentation to support my claim. Frankly, I couldn't flip a coin one way or the other to tell you what their decision will be. The major problem with the work capability assessment is that the outcome is so completely uncertain. People keep telling me that they have their fingers crossed. Some have their toes crossed for me too. Isn't that the point after all? No one can second guess what the decision will be. It's a test based not on facts, or evidence. It's more a game of chance which gambles with your sanity and your desperate need for support and a subsistence income. I wait anxiously to learn if they pull my ticket out of their tombola machine. Wish me luck?

If anyone is feeling alone and worried about their own assessment please contact Jane on twitter @WOWpetitionchat

There is an excellent interactive guide to the complex work capability assessment written by a specialist benefits advisor at http://ilegal.org.uk/thread/7049/mlinteractive-guide-completion-esa-50

If you would like to share your own experience please contact us. We will be delighted to hear from you.

Above all, we demand that this degrading and unfair assessment process is stopped as soon as possible. Please give your support by signing and sharing the petition...

http://epetitions.direct.gov.uk/petitions/43154

ESA SOS - The Starting Gun

ESA SOS - An important post from @suey2y author of Diary of a Benefit Scrounger.

In a few weeks, I'm going to arrange for some very significant stories to break in the very mainstream press about ESA.

I've been collecting them for about 6 months and if there's any justice left at all, they will kill ESA once and for all.

They will totally change your perception of ESA and WCAs

We need a Spartacus 2 and as you all know, I've been sick as a dog.

Today is stage one. If you're in, please leave your Name and user name on twitter or Facebook (Feel free to only provide the latter if you like to keep your anonymity a little) and Constituency

There will be a task most days, so please keep watching my blog. 

Today, I would like something very specific. What is the worst thing, for you about ESA/WCAs? I need you to simply leave a one line answer if possible, ie "1 Year Time Limit - It totally undermines any contributory principle"

The most popular of these "subjects" will make up every short section of the new report.

Share this post everywhere you can. This will be the start of our biggest fightback. EVERYONE will have to give this everything if it is to work. We need hundreds of responses to every request to make this a truly representative report from disabled people, by disabled people. The more join, the more powerful our voice and the more impact any final work will have.

What's more, by crowdsourcing our information and skills, believe me, we have 100 times the resources and ability of the DWP.

I have an awesome team in place - they produced #esaSOS in just 4 days. Hard though it will be, PLEASE, I'm still very weak and CAN'T read endless comments or pages and pages of Hansard or reports. Make this easy for me by keeping as close to the brief each day as you possibly can. I WILL cover everything, nothing will get missed. I'll ask the question you're itching to comment on, honest, but if we do it this way, I can delegate very much and empower you all to know exactly what we need.

Even a shadow of division will see us fail. This will need every group, every campaigner, every supporter, no matter how radical or moderate, how powerful or unknown, every journalist that has supported us, every politician who is fully signed up to our arguments.

If you have a prominent welfare/disability/political voice, website or other outlet, please cross post this from me. 

So today, in the comment thread below please leave :

Name and social media name/s (or just the latter if more comfortable)
Constituency
The WORST thing for you about ESA/WCAs in one line. 

****ESA is the most terrible failure of any developed nation for a very long time. The reasons are numerous and utterly undeniable. The government has failed to implement Harrington with any commitment and is actively increasing the rate at which vulnerable people face a failing and unfair test. We have engaged with a democratic process that has failed us at every stage. We have no choice left but to stop this ourselves. Over 100,000 people now face some kind of ESA assessment every MONTH. We can't afford to wait. ****

Enough is Enough. 

From today, please use the hashtag #ESAendgame in all your tweets. We must build awareness and create an army or support and dissemination. 

"Alone we Whisper, Together we Shout"

Leave your comments at Diary of a Benefit Scrounger

Please sign the petition http://wowpetition.com/

20,000 People Have Signed The WOW Petition

*** 20,000 ***

The WOW Petition has over 20,000 signatures!

A huge thank you for signing and sharing this urgent and important petition. The good news is that we are on target to reach our goal of 100,000 signatures. 

 During a television interview for ITN, Margaret Hodge MP, chair of the Public Accounts Committee revealed that the Department for Work and Pensions have figures of the deaths of 1300 people who are known to have died after being found "fit to work". MPs have acknowledged that the department is causing "misery and hardship" to benefit claimants. Government ministers are trying to defend a broken system. They must accept and take responsibility for allowing harm to be inflicted on sick and disabled people by the work capability assessment which is not fit for purpose, and the suffering caused by the cuts to benefits and care services that target people when they are most vulnerable. 

Support is growing from charities, organisations and individuals. It is essential that you please continue to tell as many people about this petition as you can and ask them to sign. Together we can make a difference!

ADD YOUR NAME TO THE PETITION

  

The WOW Petition Passes 14,000 Signatures!

Progress update - WOW petition reaches 14,000 signatures.

The total number of people who have now supported is 14,214!

Since the petition was submitted to the e-petition website by Francesca Martinez, sick and disabled people have been hit by further cuts. Coalition MPs voted to cap ESA so that it no longer rises with inflation. This means that some of the most vulnerable people will not be able to keep pace with rises in food and fuel costs.

The bad news continues. Today we have learned that the government is trying to 'sneak' a change to the way people's conditions are assessed, based on nothing more than a hypothetical series of assumptions which will mean even more genuinely sick and disabled people will be found fit to work and lose the benefits they rely upon to survive.

Read more - (http://www.ekklesia.co.uk/node/17811)  

* Withdrawal of benefit if an assessor believes that medication would reduce the risks posed by a claimant's condition, seemingly without regard for whether it would be appropriate in a work context.

* Withdrawal of benefit if an assessor believes that a reasonable adjustment could be made in a workplace to reduce the risks posed by a claimant's condition, without explicit assessment of whether that adjustment is likely to be available.

* The imaginary wheelchair test, where assessors considers the effect on a claimant’s mobility were they to use a wheelchair and bases their decisions on these assumptions, is to be extended to other aids and adaptions such as guide dogs, walking sticks and even prosthetic limbs, without discussing the prospect of such aids with the claimant.

* Dealing with the claimant's physical and mental health conditions separately, rather than looking at the combined effects that physical and mental health has on a person’s ability to work. This would include ignoring the mental and cognitive side effects of treatments for physical conditions, and the physical side effects of treatments for mental health conditions.

Urgent!  

Please sign and share the WOW petition!

http://epetitions.direct.gov.uk/petitions/43154 

 

Song Of Life - Work Capability Assessments Cause Suffering

Work Capability Assessments cause suffering for the mentally ill

People suffering from mental health problems are often the most vulnerable when seeking help. Mental health can have a major impact on work, housing, relationships and finances. The Work Capability Assessments (WCA) thus present a particular challenge to those suffering mental illness. The mentally ill also are often the least able to present their case. Staff involved in assessments lack sufficient expertise or training to understand mental health issues and how they affect capability.


...It is a sobering statistic that 1 in 4 of us will experience a mental health problem in any given year. It is often quoted, but it is not a cliché; it is based on sound evidence obtained from several studies.

The impact of mental health problems are often exacerbated by the social and economic environment. Periodic hospitalisation may have impact on housing and jobs and on maintaining contacts in the community. All these problems can create instability. It is a time when help within the community can be of greatest benefit to maintain that stability. Financial problems can be acute because of periodic or long term inability to work. Financial help is a vital part of care in the community, enabling people with mental health problems to lead as stable life as possible.

The government should think again about the way in which WCA has been set up and is operating...

 Written by Ray Noble. Read the full post at Song of Life