It strikes me that not enough mention is being made of the important victory in the Court of Appeal in the case of  EWCA Civ 1565 Case No: C3/2013/1626/SSTRF IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE UPPER TRIBUNAL ADMINISTRATIVE APPEALS CHAMBER) Mr Justice Charles sitting with Upper Tribunal Judges Jacobs and Lane Case Nos. JR/2638 & 2639/2012 CO/2385/2012.
You can download the judgement here and read about what it means here. I also consider that an important investigation called ‘Who benefits?’ in to the ‘The benefits assessment and death of Ms DE’ by Mental Welfare Commission for Scotland which you can refer to here has a relevance to the tragic consequences of what can go wrong if the right decision is not made for lack of obtaining the right evidence.
It is of paramount importance that anyone with mental health problems who is facing having to complete an ESA50 or who has had a decision which the DWP say does not qualify them for Employment & Support Allowance (particularly if it involves a transfer from older incapacity benefits) seeks specialist help from an experienced welfare benefit specialist.
Regrettably we cannot deal with cases on an individual basis on this forum, but if you have a question about the procedure then by all means ask one on this thread and I’ll do my best to answer it in due course.
An important part of the Court’s finding is the recognition of the following:
“Decision-makers should actively consider the need to seek further documentary evidence in every claimant’s case. The final decision must be justified where this is not sought.”
“41. Given the unique circumstances of their condition, particular care should be taken when the claimant has a mental, intellectual or cognitive condition as these individuals may lack insight into the effects of their condition on their day-to-day functioning.”
The drastic consequences of not seeking further medical evidence are clearly outlined in the report in to the death of a claimant allegedly affected by the Work Capability Assessment.
Fundamentally the Court of Appeal recognised the many instances where claimants may not disclose details of a mental health problem to the DWP or their contracted healthcare professional of their own accord. The difficulties are summarised in the judgement as follows:
31. From that detailed evidence, the Upper Tribunal identified the following particular problems which MHPs as a group face, whilst recognising that the extent to which any particular MHP will suffer from these problems will vary.
“(i) In terms of filling out a form, seeking additional evidence and answering questions, claimants with [mental
health problems] as a class have the following problems and difficulties because of their [mental health problems],
some of which overlap:
a) insufficient appreciation of their condition to answer questions on the ESA50 correctly without help,
b) failure to self-report because of lack of insight into their condition,
c) inability to self-report because of difficulties with social interaction and expression,
d) inability to self-report because they are confused by their symptoms,
e) inability because of their condition to describe its effects properly,
f) difficulty in concentrating and in understanding the questions asked,
g) unwillingness to self-report because of shame or fear of discrimination,
h) failure to understand the need for additional evidence because of cognitive difficulties,
i) problems with self-motivation because of anxiety and depression which may prevent them approaching professionals for help and assistance,
j) false expectation that conditions will be understood without them needing additional help, and
k) lack of understanding that professionals named in the form will not automatically be contacted in the assessment process.
ii) in terms of further aspects of the process for the determination of their entitlement to ESA, claimants with
MHPs as a class have or have to face the following problems and difficulties because of their MHPs:
a) particular conditions (e.g. agoraphobia and panic attacks and autism spectrum disorder) make attending and/or travelling to a face-to-face assessment difficult,
b) finding the process itself intimidating and stressful, and, in some cases, that having a long-lasting negative effect on their condition,
c) a desire to understate conditions,
d) the masking of health problems as physical problems,
e) dealing with assessors who have little or no experience of mental health problems,
f) the difficulties of identifying many symptoms of a condition and its impact on what a person needs without proper training and knowledge,
g) the lack of time during a short assessment to identify a person’s needs,
h) fluctuation in condition, and
i) scepticism about the condition.”
32. It is important to note that these problems fall into two categories, although they overlap. Some of these difficulties go to the adverse experience which might be felt because of what, from the vantage point of some MHPs, will be perceived to be stressful, embarrassing or confusing features of the process, in particular the completion of the questionnaire and the face to face interview. Other difficulties lead to the decision maker having inadequate or even false information about the nature and extent of the illness thereby increasing the risk that a false functional assessment will be made which in turn may jeopardise the right to an ESA. I will call these “adverse experiences” and “outcome effects” respectively.
Whilst the judgement places an emphasis on the DWP seeking further medical evidence in mental health cases, the reality is that in many cases the DWP fails to do so. In the investigative report in to the death to which I have referred it appears for instance that the claimant’s doctor was not contacted and asked to complete what is called an ESA 113 report.
There is nothing to prevent a claimant when completing the ESA 50, especially when assisted by someone, to point out that they specifically want the DWP to obtain further medical evidence from their own doctor or clinicians. A claimant could for instance write something along the following lines:
“I have severe mental health problems and find it impossible to describe them in this form. Please ensure that you contact my doctor (or other named clinician) and ask them for full details of my mental health problems. I believe this is necessary to make a proper decision on my claim.”
In long term claims it may also be relevant to state:
“You already hold details of my long term mental health problems and I am asking you to make sure these are made fully available to the decision – maker who is looking at my claim. I believe these details to be very relevant to getting the full picture and vital to a correct decision being made.”
In Incapacity Benefit cases where you have been asked to undergo an assessment for Employment & Support Allowance, the following may be relevant (most claims have now now been ‘migrated’ according to the DWP).
When you receive the ESA 50, make an appointment to speak with your doctor either by phone or at the surgery. This is particularly important where you have not seen your doctor for some time. Tell your doctor you are being reassessed and ask for a review of the time since you were last seen by the doctor. This allows you to update your doctor and tell him or her of any problems you have faced since you were last seen, it also means the doctor is better equipped to comment if the DWP contacts them. It also makes it possible for you to bring matters to the attention of your doctor over which they may be unaware. You could for instance talk to them about declining levels of social confidence and any fears you have about meeting people or facing certain situations.
The reason this is important is because in incapacity benefit to ESA cases, no medical certificate is required at the commencement of the ‘conversion phase’. You only need a medical certificate if the DWP assesses you and finds you fit for work and you want to appeal. The rules are different to new claims for ESA where medical certificates are required at the very start of your claim in the ‘assessment phase’. In migration cases the ‘prompt’ to speak with your doctor about a certificate only arises once you have already been assessed.
Claimants who have been refused ESA in cases where mental health was relevant (even if the DWP did not know of this) and no attempt was made to obtain further medical evidence by the DWP should consider an appeal.
There will be more on this in subsequent posts.
With thanks to the brilliant nick at http://ilegal.org.uk
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