The last WCA figures have been released by DWP, https://www.gov.uk/government/statistics/esa-outcomes-of-work-capability-assessments-including-mandatory-reconsiderations-and-appeals-december-2016
These figures show clearly that the number of people placed in the Support Group has dramatically dropped (from 61 % in November 2014 to 32% in June 2016 ), while the number of people found fit for work keeps increasing (from 23% in November 2014 to 48% in June 2016). The number of people placed in the Work Related Activity Group is also increasing, albeit not as dramatically. (Table 2a )
A figure which is also worth looking at is the percentage of overturned ESA decisions through Mandatory Reconsiderations (MR). The first recorded figures in March 2014 show that almost 70% of ESA decisions were overturned through MR. In October 2016, this figure has dropped to just over 12%. (Table 14)
At the same time, the number of appeals has increased and the success rate for claimants is 58%.
Another concerning figure is the drop in the number of claimants placed in the Support Group on the grounds of physical or mental risk (from 11.4% in January 2015 to 2.0% in March 2016). These are the people who could use Regulations 29 and 35, on the grounds there would be a substantial risk to their health or someone else’s health if they were found to be capable of work-related activities. But DWP changed the guidance, which accounts for less people qualifying for the Support Group, although DWP did not change the regulations. For an explanation of how the guidance was changed by DWP, see this excellent article: https://inews.co.uk/essentials/news/politics/government-rule-change-shuts-thousands-disability-benefits/
To conclude, it can be said confidently that MRs are not an independent process like an appeal in a tribunal can be. Like sanctions, they are under the influence of the Secretary of State, and will respond to pressures to reduce the claimant count. It is clear that MRs are an additional step in the process of challenging an ESA decision, specifically introduced to discourage claimants from appealing.
Claimants have no other choice than asking for MR, as they cannot appeal until they receive a MR notice. But they should be aware that their chances of success are slim, and should be prepared to go to appeal. It is harsh as people are already struggling with their health condition(s) and the financial implications of having to live on social security, but people should not take a negative MR result as the end to the claim and they have a much higher chance of success at appeal
But claimants need to be well prepared and have all the documents they need to be ready for their appeals. It seems that getting an assessor’s report or other helpful documents depends very much on DWP staff’s willingness, and some claimants never get to see these reports, or too late after the MR was conducted.
What you can do:
Ask for a MR and ask for the assessor’s report at the same time.
You can access an example of form here to request a MR here: https://equallives.org.uk/info-and-advice/welfare-and-benefits/challenging-decisions-when-youre-unhappy/
At the same time, you should make a Subject Access Request (SAR) to DWP.
What follows has been prepared by John Slater. (@AmateurFOI on Twitter). John’s contributions are always been very technical, but it is often on technicalities that DWP win their case
His document ESA Work Capability Assessment Information Held by the DWP explains what a SAR is, and what are the 3 very useful documents for an appeal which can be obtained from DWP. You can see what ESA85a, ESA58 and LT54 (DMACR) forms look like by clicking on the inserted links.
There is also a link to a form to make a Subject Access Request for these 3 documents How to request the information from the DWP
The idea is to help you prepare for an appeal at an early stage, ideally at the same time as the request for a MR. While you are unlikely to get these documents in time for the MR (DWP must provide you with the information you requested (as long as they hold it) within a maximum of 40 calendar days), you should get them in time to prepare your appeal.
ESA Work Capability Assessment Information Held by the DWP
Introduction
When you have been through a Work Capability Assessment (“WCA”) it isn’t always as straight forward as it should be to get information about the outcome from the DWP as it should be.
Whether you need the information for a Mandatory Reconsideration (“MR”), a Tribunal Appeal or just for your own records you are legally entitled to it. There have been stories of DWP staff telling people that they “don’t need the information” or it’s “not usual for them to have it”. This is irrelevant and frankly none of their business. If the DWP holds information about you, you are legally entitled to have a copy (with few very specific exceptions).
What Information Am I Allowed to Have?
Section 7 of the Data Protection Act 1998 (“DPA”) means that are all entitled to:
- to be told whether any personal data is being processed;
- be given a description of the personal data, the reasons it is being processed, and whether it will be given to any other organisations or people;
- be given a copy of the information comprising the data; and given details of the source of the data (where this is available).
This means that when requested the DWP must provide you with a copy of all the information it holds about you and what it does with it. It also needs your consent to have obtained and processed that information in the first place. This is usually obtained when you sign an application form from any welfare benefits such as the ESA.
The technical term used to describe the method of obtaining any personal information held by an organisation is called making a “Subject Access Request” or SAR. The Information Commissioner’s (“ICO”) website provides helpful guidance about this aimed at members of the public and organisations such as the DWP. Links to both types of guidance are provided below.
Guidance for the Public
https://ico.org.uk/for-the-public/personal-information/
Guidance for Organisations
The DPA means that any organisation, including the DWP, must provide you with the information you requested (as long as they hold it) within a maximum of 40 calendar days. The ICO is clear that the DWP “must respond to a subject access request promptly and in any event within 40 calendar days of receiving it.”
The DWP provides a form (see link below) that it would like people to use when make a SAR. You are not obliged to complete and use this form in order to submit a SAR to the DWP.
https://www.gov.uk/government/publications/dwp-request-for-personal-information
I have reservations about this form as it is easy to limit the scope of your SAR without realising when completing it.
The ICO provides a very helpful template and explanation at the link ‘Guidance for the Public’ above.
What information about my WCA should I ask for?
You could simply ask the DWP for all the information that it holds about you but that could slow down your request and give you a lot of paper to sort through. In respect of a WCA I think there are 3 key documents:
- ESA85 – Medical Report (produced by the person that carried out your WCA)
- ESA56 – Worksheet for the WCA (used by the DWP when making the decision based on the ESA85)
- LT54 (DMACR) – A record of the decision made and the relevant law (e.g. ESA regulations)
ESA85 – Medical Report
People who have gone through a WCA may already be familiar with this report. It is produced by the healthcare professional that carried out your WCA. It is the evidence used by DWP decision makers (“DM”) to decide if you are entitled to ESA and if so if you should be placed in the Work-Related Activity Group (“WRAG”) or the Support Group (“SG”).
If it is decided that a WCA is not required, then the report produced will be an ESA85a.
You can see a copy of a blank ESA85a here V2_ESA85a – ESA Medical Report No WCA
ESA56 – Worksheet for the WCA
This is a form that people who know about the ESA85/ESA85a probably won’t be familiar with. It appears to document the decision taken by the DM. Page 2 is particularly interesting as it provides a table where the scores for the descriptors (the tests used to determine eligibility) of the HCP and DM are compared against your own. This might be useful if you are requesting a MR or appealing a decision.
You can see a copy of a blank ESA56 here [https://dpac.uk.net/wp-content/uploads/2016/12/ESA56-Worksheet-for-the-WCA-Copy.pdf].
LT54 (DMACR)
Just like the ESA56 people probably won’t be familiar with this form. It appears to be a summary of the DM decision and lists the relevant law (e.g. which ESA regulations apply to this particular case). It states on the form that the DM must:
“Include details of any award, disallowance, disqualification, offsets or overpayment. Give the reasons for the decision, including law and supporting evidence as appropriate.”
This could be particularly useful if you are requesting a MR or appealing a decision as you will know how the DM make their decision and how they interpreted the evidence before them.
You can see a copy of a blank LT54 (DMACR) here [https://dpac.uk.net/wp-content/uploads/2016/12/DWP-ESA-Form-LT54-DMACR-Copy.pdf].
Conclusion
If you want to request copies of the 3 documents discussed above I’ve produced a template request forms [How to request the information from the DWP ] that you can use. As explained earlier you don’t have to use the DWP request form but it does make sense to follow their process of submitting your request to your nearest JCP office.
You don’t need to send your request by the expensive Royal Mail “Signed For Service”. However, to make sure you have proof that you sent your request I suggest you do the following:
- Keep a copy of your request document.
- Scan or take a photograph of the envelope you used and make sure the address and correct amount of postage is shown (i.e. the correct stamp is attached).
- Obtain proof of postage from the post office (this is free).
If you have this information it makes it much harder for the DWP to claim that your request didn’t arrive.
I would never use a Subject Access Request as a first use document to ask for a copy the assessment report (ESA85). As noted, DWP will have up to 40 days to disclose documents. Instead, I write a simple request for the ESA85 and this is usually received within 10 – 14 days in most cases that I manage. However, I always add a note at the the end of the request which says –
“If I have not received the documents within 14 days I will have no alternative but to raise a Subject Access Request.”
In the last 100 or so ESA cases I have not needed to raise an SAR but I would not hesitate to do so. I find SAR’s to be more useful in cases of maladministration, and there are plenty of those!