Dec 142012
 

Public Interest Lawyers    Press Release – 14 December 2012

A disabled man who was wrongly found fit for work under the government’s disability benefit assessment scheme is launching legal action to try and stop more disabled people being wrongly kicked off the social safety net.

 Patrick Lynch, a former social care worker who was forced to quit work because of his impairments, is seeking a judicial review of the controversial disability benefit assessment scheme run by Atos.

 The Work Capability Assessment (WCA), which determines eligibility for Employment and Support Allowance (ESA) for people whose health or impairment stops them from working, is at present hugely unreliable, with many people wrongly found fit for work despite severely debilitating and in some cases life-threatening conditions.

 The legal action is seeking a ruling that would require Atos, the private firm that runs the WCA process on behalf of the Department of Work and Pensions (DWP), to grant all ESA claimants the unequivocal right to have their assessment recorded and to receive their WCA report before a decision on their eligibility is made – both key safeguards against people’s health conditions being misreported or ignored altogether.

 DWP research and a survey conducted by Disabled People Against Cuts (DPAC) both show widespread demand from claimants to have their WCA assessments recorded, to ensure their medical conditions are not misrepresented in order to wrongly strip them of benefits. But while the DWP granted the right to request a recording earlier this year, there are considerable bureaucratic obstacles to both securing a recording and then using it in an appeal, with Atos recently introducing a restrictive ‘consent form’ for those wanting a recording of their assessment.

 The case is being brought by Public Interest Lawyers, and draws on research by Disabled People Against Cuts and the TUC-backed campaign group False Economy.

 Mr Lynch wants the DWP and Atos to adopt the following safeguards:

 a)    Universal recording to ensure that all claimants undergoing a WCA or an assessment under the new PIP benefit system will have the right to have their assessment recorded;

b)    Claimants will get a copy of the WCA report before a decision is made on their eligibility for ESA, and will have the chance to raise any concerns with the DWP decision maker;

c)    The DWP/Atos will be responsible for obtaining medical evidence from the medical professional named by the claimant;

d)    The DWP ensures that all assessment centres are fully accessible.

 Taken together, these measures would address some of the inaccuracy inherent in the disability benefits system. Disability campaigners have raised repeated concerns over how the WCA process causes huge stress for ESA recipients, with many disabled people’s lives ruined after wrongly having their benefits removed.

 Mr Lynch, now a campaigner with DPAC, was found fit for work following a flawed WCA report in 2010, before the DWP reconsidered and reversed the decision. His most recent WCA this year upheld his benefit entitlement, but even then Atos’ report of his assessment contained inaccuracies.

 In bringing the action Mr Lynch notes

 “Disabled people and the poor in this Country have always struggled to get what they are duly entitled to. The fight must go on to address the injustice caused by this out of touch Government.

 A DPAC spokesperson said:

 “The evidence is clear – more than 98 percent of those responding to our survey said they wanted their assessment recorded and that they believed it would provide a better account. However, many reported a whole host of barriers in getting a recording in place.”

 A spokesperson for False Economy, whose investigations into WCA recordings informed some of the background to the recording debate, said that the rights of ESA claimants are crucial.

 “Too many people feel vulnerable in this process. People feel that their final assessment reports inaccurately reflect information exchanged during work capability assessments. We’ve found it hard to pin down the DWP on recording policy. Universal recording, and giving people the opportunity to see their WCA reports before final eligibility decisions are made, will go some way towards restoring fairness and accuracy while the WCA process continues.

 Tessa Gregory of Public Interest Lawyers, Mr Lynch’s solicitor states:

 The Work Capability Assessment process needs urgent reform. There is an unacceptable risk of unfairness in the current system and we hope these safeguards will be instituted to help mitigate that risk.”

 TUC General Secretary Brendan Barber said:

 “Assessments of disability must be fair and proportionate, treat people with respect and be part of a consistent system. There is overwhelming evidence that they have fallen far short of these basic standards. It is right that they should be challenged in court.

 END

 Contact at Public Interest Lawyers:

 Tessa Gregory, tessa.gregory@publicinterestlawyers.co.uk

0121 515 5069

 see: http://www.guardian.co.uk/society/2012/dec/13/disabled-man-government-court-benefit-test

see:http://www.dpac.uk.net/2012/11/dpac-survey-responses-on-wca-what-harrington-didnt-ask/

 

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  12 Responses to “Legal challenge launched against ‘unfair’ government disability test”

  1. To Susan Murray, it would be good to hear from you too. I couldn’t see how to pm you, but I’m on lynnepardoeathotmail dot co dot uk

  2. My husband, who has leuchaemia was recently interviewed in Brighton, in a venue that had some work going on at the front door which barred entry into the building, they were told to go to the back door. He and another person who had some problems walking had to make their way to the back of the building and wait for a car to leave the gated courtyard, so they could get in and knock on windows and doors of the basement until someone heard and let them in. When he got to the desk where the interviews were going to take place he told the receptionist about the problem, she said there was nothing she could do. He asked to see the manager who duly came out but said it was not his concern. My husband told him it ought to be his concern as manager, since people coming for interview might not be able to attend and would probably be penalised for not attending.
    When my husband’s interview was over he noticed that the manager had got the workmen to allow access to the front door. This little incident illustrates a clear lack of ability, training or fore thought from people who ought at the very least to be aware of the physical difficulties that many people on incapacity benefit (as was) have to contend with.

  3. Great news! I hope it goes through if only to save others. Thankyou, thankyou so much for your brave efforts Patrick. Good luck. God Bless and keepyou all safe and lead you all to victory. Mxx

  4. A suitable ending to a tough year.
    This is brilliant news that’s been long awaited. Well done.

  5. Thank God at last. This is what we needed, someone with enough strength, enough clout and enough money to hire a lawyer to take this to court. Most of us haven’t got that kind of money and now not even enough strength left to fight anyone any more. Just what the government knew would happen. God bless you, Patrick Lynch and all those behind you.

  6. Good Luck to all concerned in this court case, it will go a long way in addressing the imbalance that is so clear for all to see.

    This case if won will go a long way in reducing the number of appeals being brought which I hope the Judge takes into account.

    Thank You PIL you are doing sterling work for the many suffering under this Government.

  7. That is exactly what should happen. I was a Child Protection Social Worker for many years and good practice is now that you show a family the report you have written about them before any case conference. And they and their solicitor must have copies so they have time, can correct any errors and are familiar with it to discuss it in detail during the meeting. In Child Protection the aim is not to catch people out but to help them deal with problems.

    That same principle should also apply to ESA, if only for the simple practical reason that any errors can be corrected before they waste valuable decision makers time.

    Could we also know the contents of the assessment prior to attending it?

    • It’s good to know that someone is taking on the bastards! I too was a child protection social worker for years until I got landed with MS. It would be good to talk to you. Sue

  8. finally i have been trying to get backing for a long time to go against them legally at least some one is on the right road

  9. For my second atos assessment I wrote on my esa50 form that I would like to have it recorded. I also contacted atos by e-mail requesting a recording and was given the number of a service centre to ring as it was this service centre who organised such recordings. On ringing I spoke to a chap who told me that the person who organised the recordings was out to lunch, however the chap took all my details and said the organiser would ring me back.After a few hours and with no callback I rang again and spoke to another chap. I explained the situation to him and once again gave him all my details, he said that he would deal with it and that all the equipment would be ready, all set up for me on my assessment day. At my assessment the lady I had to see said that she had just noticed my recording request on my esa50 form. She asked wether I still wanted it recorded and I replied “yes”. The lady then went on to say that there would be a short delay whilst I signed a couple of forms and the equipment was set up. Having had some sleepless nights worrying about the assessment and being quite nervous as to what was about to happen I could not face any delay, I just wanted to get it over and done with so I told the lady not to worry about it. To be fair to the atos lady she did say that if I changed my mind during the assessment I could still have it recorded. As for the service centre it appears they had no intention of organising the recording, a bunch of liars.

  10. I received an email from Benefits and Work which states: “Thanks to Jim Otram for spotting a Freedom of Information Act response which shows that the DWP received advice in 2010 that obliging people to hire a sound engineer to record their medical was likely to be unlawful. According to the DWP document, claimants should have the right to a recording not just of ESA medicals, but of all medicals including ones carried out in their home.”

    (I have a copy of the FOI request if you are interested)

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