DWP ministers said only 9% of ESA decisions were wrong. Our research reveals the DWP have been quoting from figures which state 151,800 appeals have succeeded. Our evidence shows the true figure to beat least567,634 – casting serious doubt over 43% of 1,302,200 ‘fit for work’ decisions.
ilegal Press Release – 16th June 2013
DWP’s internal figures reveal a much higher number of successful ESA appeals than have been made publicly available.
A DWP reply on 13 June 2014 to a Freedom of Information Act request made as part of an investigation in to DWP figures relating to the controversial Work Capability Assessment by ilegal.org.uk has revealed that of 1,287,323 ESA appeals, at least 567,634 claimants have had the original DWP decision overturned in their favour.
It is with considerable disappointment noted that the DWP’s latest publicly available statistics confirm that only 151,800 successful appeals have been recorded out of a total of 410,400 appeals (for new claimants only). Our investigations reveal evidence of three times as many appeals being ‘internally recorded’ of which
567,634 have been successful. The DWP have revealed to us figures which show nearly quarter of a million internal reconsiderations have led to decisions on new ESA claims being overturned in favour of the claimant; we have added these to figures from HMCTS tribunals which provides us with a much higher figure than the DWP seems to be prepared to admit to in their publicly available figures.
Our intensive research into the assessment of claimants for the DWP’s Employment & Support Allowance (ESA) has, following a freedom of information request to the DWP, provided one of the final pieces of the jigsaw needed to unpick the Department’s overly complicated statistics. We now have the final clue which has enabled us to identify that no less than 567,634 ESA claimants have in fact had their initial ESA refusals overturned in their favour.
It is a startling revelation that the government department has apparently been keeping a lid on a set of statistics that clearly shows between May 2010 and June 2013 no less than 820,356 decisions were looked at again by the DWP after claimants had been assessed by the controversial private contractors Atos Healthcare. These ‘internal’ statistics show that a very substantial 232,782 (28.5%) decisions were then subsequently overturned in the claimant’s favour.
What makes this all the worse is that these reconsideration statistics come on top of separate figures that show us that of those claimants who did not have the decisions overturned in their favour by the DWP, 817,102 went on to appeal to tribunals arranged by Her Majesties’ Courts & Tribunals Service where a further 332,607 were then overturned in the claimant’s favour by the tribunal.
These figures completely negate all of the DWP’s claims that it is getting the majority of its decisions right
These new figures highlight the dubious practice of using the unchallenged assessment results, which only encourage media sensationalisation, with headlines such as those appearing in the Daily Express in July 2011 stating that ‘75% on sickness benefits were faking’. The same article goes on to say that out of ‘…2.6 million on the sick, 1.9 million could work’ before receiving an endorsement from the Prime Minister with an assurance that his government was “producing a much better system where we put people through their paces and say that if you can work, you should work”.
DWP and Ministers know the truth, they just aren’t telling anyone
We question then why the DWP has consistently ‘over promoted’ only the results of Work Capability Assessments relating to ‘initial’ decisions (including the opinions of Atos Healthcare in the absence of a statutory DWP decision) when it could instead have come clean and declared how hundreds of thousands of their incorrect decisions have since been overturned in favour of the person appealing.
These revelations seriously undermine the DWP’s contention that the initial Work Capability Assessment outcomes are a valid measure of the claimant’s ability to work. The DWP has consistently defended its assessments by giving an impression that only a relatively low number of decisions have been overturned whereas the reality is that well over half a million have resulted in a successful outcome for the claimant.
And this DOES NOT include the 712,000 people awaiting assessments BEFORE they can appeal
This news must have come as cause for grave concern when considered in the light of a recent revelation by DWP Minister Mike Penning which revealed that in addition to the figures we have highlighted, a further 712,000 Employment & Support Allowance claimants are awaiting assessments without which they cannot yet appeal.
This hugely unacceptable backlog of cases means people with disabling medical conditions are left hanging for months and months on a basic allowance way below what they are entitled to. This is leaving hundreds of thousands deprived of the support they require and means having to scrape by on money which is wholly insufficient to meet their needs due to disability and illness. It also means many claimants affected by severe and complex mental health conditions are facing prolonged torment as they wait month upon month for their decision to be overturned before they can even lodge an appeal.
Face up to reality: it doesn’t work. Scrap the WCA
These findings add considerably to the pleas of disabled groups all over the country to scrap the Work Capability Assessment (WCA) and to find a better way to assess their needs.
It is simply appalling that the DWP, along with Ministers and other government spokespeople appear to be feeding the media with misleading statistics that are unrepresentative of the real story and instead encourage headlines vilifying the disabled and the genuinely ill. These figures clearly show the DWP has evidence in their possession which shows how in far too many cases the decisions it is making are dead wrong and they know they’re dead wrong.
Please contact the author of this article Nick Dilworth for verification of any of the figures quoted. We welcome sharing our findings on social media and allow this information to be produced providing credit is given to the
i-legal website with links to the article produced.
We apologise for the slight delay in publishing this release. This was due to a need to align the figures to ones recently produced by the DWP in their Work Capability Assessment figures released on the 12th June 2014 which relate to the most recent statistics up to September 2013.
A full supporting explanatory memorandum will be published very shortly.
The Reconsideration statistics relate to new ESA claimants only (excluding incapacity benefit to ESA conversion cases) whereas HMCTS figures refer to all ESA claimants. It is our contention that had the DWP supplied all of the information we had requested, the figures for reconsiderations would have been considerably higher.
We acknowledge that not all appeals will be against fit for work findings for new claimants but given the DWP’s emphasis on this claimant cohort and the lack of information to the contrary we are of the contention that other appeals relating to claimants being moved from the Work Related Activity Group to Support Group are likely to be of a much lower volume and more likely to be contained within the cohort relating to incapacity benefit/ESA assessment.
We would like to express our thanks to Anita Bellows an i-legal member for her cooperation and for making the freedom of information request upon our guidance and our thanks extend to the DPAC organisation with whom Anita is also a member.
Boycott Workfare is a UK-wide campaign to end forced unpaid work for people who receive welfare. Workfare profits the rich by providing free labour, whilst threatening the poor by taking away welfare rights if people refuse to work without a living wage. We are a grassroots campaign, formed in 2010 by people with experience of workfare and those concerned about its impact. We expose and take action against companies and organisations profiting from workfare; encourage organisations to pledge to boycott it; and actively inform people of their rights.
Members of PCS union work for the DWP and job centres so are involved in the day to day delivery of workfare and sanctions. Members have shown they oppose it by voting for national policy against workfare and sanctions. Now Disabled People Against Cuts, Black Triangle and Boycott Workfare are asking them to use their power to help put a stop to these punitive measures.
Disabled People Against Cuts, Black Triangle and Boycott Workfare joint statement on PCS Union and non-cooperation:
1. We note that motion A81 that recently passed at the PCS conference makes reference to the PCS Union working with Disabled People Against Cuts and Black Triangle. (1)
2. We note that motions E340-E342 submitted by DWP branches also called for the PCS to work with Boycott Workfare, but that references to Boycott Workfare were dropped by the NEC from motion A81. (1)
3. Black Triangle and Disabled People Against Cuts wish to express their solidarity with Boycott Workfare who we believe have organised a broad based and successful campaign against workfare and sanctions.
4. We note that the legal advice received by the PCS in 2013 accepted that the tactic of non-cooperation could be used as part of a campaign of industrial action consisting of action short of a strike. (2)
5. We note that the PCS currently have a live mandate for industrial action and will be consulting members on 12th June about coordinated strike action. (3)
6. Disabled People Against Cuts, Black Triangle and Boycott Workfare therefore call on the PCS NEC to consult members on adopting a tactic of non-cooperation with workfare and sanctions.
Please send me short descriptions of disabled people’s experience on 3 employment related issues. I can tidy the case studies up and make sure they are anonymous so you don’t need to spend too much time writing them up – I just need proof of the points I’m making! See details below:
· If you have examples of Jobseeker’s Allowance (JSA) or Employment Support Allowance (ESA) claimants where the loss of £40/50 will have a serious impact on the ability to pay for food and other essentials please let me know. There’s a consultation on the increase of ‘waiting days’ for Jobseeker’s Allowance (JSA) or Employment Support Allowance (ESA). Claimants will lose, on average, £40 or £50 respectively. More information is at: http://ssac.independent.gov.uk/news/press-releases/23-05-14.pdfhttp://ssac.independent.gov.uk/consultations/
· Lastly I would welcome recent examples (i.e. from beginning of Sept 2013) of difficulties caused by the WCA/ESA including issues around difficulties in paying bills due to benefit delays as above as well inaccurate assessments, lack of mental health champions or recording equipment or any other issues for the 5th and final review of the Work Capability assessment (to be announced shortly, see information below).
If you’ve been following this on twitter and face book, you’ll know what a great success the first international #dpactour has been. The excellent Ellen Clifford of DPAC travelled to Canada at the invitation of John Clarke of Ontario Coalition against Poverty (OCAP).
John and OCAP have been great allies to DPAC, supporting us since 2012 ATOS Games protests, and DPAC was happy to return that support. We want to thank all for inviting us to share the knowledge of #dpac campaigns and actions, and the history of the unelected coalition Government’s appalling treatment and stripping of rights from disabled people.
The terrifying model of the coalition is spreading with punitive, harmful and potentially murderous regimes being taken up by other Tories at international and European levels. Canada have an election coming up and already plans similar to those carried out in Britain are starting to take shape. The Canadian people wanted to hear from #dpac on how they could increase campaigns and what was happening here to disabled people. Ellen and John did a tour letting people know what could be done, what has been done and how to fight it.
Remember: #internationalsolidarity, ‘fight to win’, ‘austerity is global so is our resistance’
With thanks to everyone involved we reproduce below some pictures from the #dpactour- more on the #dpactour to come..so watch this space
I went to the Work and Pensions Select Committee meeting in Newcastle today at the Newcastle FC in the Bobby Moncur Suite. Access to the building was fine although parking was a fair distance from stadium, but the best they could get. Signers and induction loop were available. I enquired with Sheila Gilmore MP the terms of reference for the meeting.
Dame Anne Begg opened the meeting which was to gather information from people on personal ESA/WCA experiences only. The meeting was well attended by individuals and also charities with case studies which were presented to the committee in report form. The horrors I listened to made me cry openly which is pretty hard I can tell you, as I’m not one for showing my emotions in public or private easily, and those who know me personally know this to be the case. The committee were also struggling to remain composed. The committee had come to Newcastle because it had the highest complaints across the entire system, so decided a one off trip to hear from people was appropriate.
Many cases of failure were given and it was brought up time and again of fabricated reports, people being humiliated by HCP’s which we have known about for years. Many cases of suicide were mentioned , many cases of where the claimant was terminally ill yet denied what they were rightfully entitled to in their time of need and that documentation from GP’s /consultants were being ignored as ‘they know better’.
I mentioned the fear of ‘brown envelope syndrome’ and that disabled peoples’ voices were not felt to be heard and our human rights were being abused on a daily basis. I called the WCA a ‘wicked regime’ which has targets even if they deny so, and is cost cutting exercise and nothing more. I also brought up as did others the fact most people would work if they could but many cannot, as getting through a day by day basis was as much as many could cope with. I also asked where the jobs were for those who wish to work and why those meant to help like Shaw Trust/Action for the Blind were also vilified by claimants for failures when they are supposed to help? Whether they could help as the claimants’ impairments mean that employers wont take them on so they are abandoned to their own devices.
It was mentioned frequently during the meeting about JCP disability advisors being no use and they also, didn’t understand conditions either; often bullying the claimant into jobs they can’t perform, and that education for those who needed to gain skills was being denied .
Decision Makers are trained by ATOS I found out today so that is a conflict of interest which I found disgusting given the level of control they have over peoples’ lives and the cumulative impact on a disabled person’s well being. I mentioned that this model used is flawed and didn’t take into account those with fluctuating conditions and the cost of tribunals and re-assessments of those with long term progressive illnesses , was a waste of taxpayers’ money unless changes had occurred .
I explained how we are demonised and treated as liars and criminals when, in actual fact all we are, is disabled or have a long term health condition. I asked why shouldn’t we be afforded the same rights as non-disabled people such as holidays which we have to save for, or have a pet , or go to the supermarket without the fear of being seen as a potential fraudster, when actual fraud was 0.8% including deptartmental error. I brought it up that many claimants have had support needs, financial and other, refused saying it wasn’t available.
On a lighter note the committee were understanding, listening and attentive and genuinely DO CARE and were encouraged by the turnout and assured us that those who sent in personal stories were not being ignored by them and that they were ploughing through each and every one of them, but they would encourage any further submissions of case studies by groups or individuals.
I have to say I found today harrowing as much as I do daily on facebook the horror stories that people are suffering. It has to stop!
I’m at rock bottom right now and unable to go through writing it again. I have an appointment to see my MP tomorrow. I have copied and pasted an email I sent to his secretary earlier today. Dear Mary, I was going to write a brief summary of the main issues I’m facing right now and send them to you to save some time tomorrow, but it looks like all my benefits have just been stopped. I was due a DLA payment yesterday (Thursday 27th March) but it’s not been paid into my bank account. I signed on at the Job Centre in Stevenage on Tuesday, but the staff (My Adviser/Coach) doubt that I’m fit for work and think I should be on ESA.
I’ve done everything they’ve asked, searched for work everyday, applied for Jobs, even worked on a business plan to start my own business from home, I don’t know what more I could have done. DWP arranged an appointment for me with PLUSS a few weeks ago and after going there I felt quite optimistic, but when I went to sign on following that, their feedback was that they couldn’t help me because my health problems are too severe. I went to DAS (Depression and Anxiety Service) on 16th March, they can’t help with my Mental Health problems because they are too severe and complex.
Unless I say “I’m going to kill myself” I can’t get any help because local Mental resources are too underfunded and their caseload is too big. I DO NOT WANT TO GO INTO HOSPITAL and I would be extremely uncooperative if I was forced!!! Do you think this is Fair or Just??? What am I supposed to do??? My health problems are hard enough to deal with, without all this!!! I went from mid July last year up until a few weeks ago with nothing other than my £40 a week DLA to live on. I had £500 savings and a good credit rating before then, and a £950 overdraft which I never used until I lost my ESA at Tribunal. I got a statement from my bank this afternoon, I’m £921.12 overdrawn with an available balance of £6.20 (I don’t know how they do their maths?) I have £96 of overdraft charges being taken out of my account on 1st of April. I had come to an arrangement with housing people to pay back the outstanding rent arrears I owed when I started to receive JSA a few weeks ago and had promised a payment of £70 by tomorrow (28th March). DNRS have already tried to send the Bailiffs to my flat to take possessions for outstanding council tax arrears.
I’ve been to CAB numerous times recently. If this is how my life is going to be then what’s the point??? I can’t sleep at night because I’m so stressed out all the time, my health mental and physical are getting worse by the day. Everybody I’ve seen, my Job Centre Coach, CAB, My COPD Nurse and the Doctor I last saw (Dr Roper), PLUSS, DAS and my family ALL SAY I SHOULD BE ON ESA. I have an appointment tomorrow morning with my GP. I need immediate help, no more forms, no more appointments, NO MORE BULLSHIT!!! I refuse to live like this any longer, I can’t take anymore of the daily stress and injustice!!! I SHOULD NEVER HAVE BEEN IN THIS SITUATION FROM THE START!!! I’ve always been a fighter, I’ve had to survive but I’m totally exhausted now, mentally and physically… I HAVE TAKEN AS MUCH AS I CAN –
My appointment with my MP went well. I was already so angry to begin with made sure I made the most of my 15 minutes. I had written my main issues before hand so that I did not forget anything. To be fair I came away feeling he had listened to me and understood my situation. I was fluent in my arguments and never had any denial from him that what this government are doing to the most vulnerable people in this country is totally wrong. Since then I have applied for ESA again, all done over the phone this time, with help from my local CAB. My MP has also liaised with my GP so that I get to see the same doctor each time.
I have been to my local surgery twice since my meeting and the way I have been treated is 100% better. DWP asked me to get a letter from my GP to inform them of how many hours a week I was capable of working while claiming JSA. My COPD and mental health conditions have worsened considerably over the past few months and my GP signed me off sick saying in his opinion I wasn’t well enough to work, hence the claim for ESA. It’s like a merry go round and so frustrating and stressful it just makes my health and life in general suffer as a result. I stated strongly to my MP that I should never have been in this situation, and far from what Iain Duncan Smith claims to be doing. that he is helping people. My MP agreed.
I am due to receive my first ESA payment this coming Tuesday and looking forward to being able to eat properly again.
If I could give any advice to someone in a situation like mine it would be to get mad, make yourself heard with the right people. I am a fighter but fighting battles everyday to survive is tiring and wears you down. It either that or give in, I wasn’t prepared to give in with the injustices I had to face and wasn’t going to go without a fight.
Update: I received a letter this week from the DWP saying they were investigating my case. We will see what comes of it. I am still angry because of all the debt all this has got me into just trying to survive.
I will never forgive nor forget what this government has done to me and tens of thousands of others.
This is an edited version of a set of emails received by DPAC- all names and places have been changed and the author has given DPAC permission to use this to publicise the inhumane situations many are finding themselves in under the Condem regime
Please support Obi and team to continue live-streaming direct actions and events for #dpac, #ukuncut and others. Live-streaming is important for disabled people that cannot always get to events and protests because none of us should be left out of our fight for our rights
It is also important in these times ruled by the right-wing press to get a record of our news and events-its time to fight back and ensure that our voices and protests are heard, recorded, documented and visualised -live-streaming does that- lets support it to continue the real and uncensored news is seen and heard! Please donate if you can at http://www.gofundme.com/8nzi68
DPAC would like to thank everyone for making last week’s (April 12 2014) National Conference such a huge success. There was a huge turnout with over 150 disabled activists from all over the UK including many new DPAC members attending, but just as important there were hundreds of members and supporters beyond the venue taking part through social media – watching the video live-stream, tweeting and sharing comments, views and sending messages of support. This was fantastic work by everyone and a truly inspiring collective effort.
Here’s a brief outline of how it went.
The day was timetabled into sections beginning with practical reports and voting on policy motions. This was followed by two workshop sessions and then a closing session for everyone to feedback on the day. Four workshops were available to choose from in each Workshop session. Detailed reports on these will follow later.
John McDonnell MP, a longstanding friend and supporter of DPAC, gave a rousing opening speech to encourage everyone and remind us of the victories achieved so far. He congratulated disabled people and DPAC for fighting back, along with our sister organisation Black Triangle and WoW Petition initiators
As he finished he mentioned his own recent health condition which he said he felt brought him closer to our movement. Ellen reacted quickly by giving him a DPAC t-shirt and declaring him a full DPAC member to instant applause and cheers.
The Finance Report showed a healthy state of affairs for the time being thanks to individual donations, t-shirt and badge sales plus grants from the Edge Fund, the Network for Social Change, Trust for London and the Andrew Wainwright Trust. More fund-raising is necessary going forward.
1. Government Honours
This proposed that any future candidates for the DPAC Steering Group could thwart the network and collective ethos of DPAC if they had received a national honour like an OBE or MBE. The ‘BE’ refers to the imperialist British Empire which is still celebrated despite what we know of the suffering and oppression this caused. The motion conversations also suggested that any media attention would be focused on those with honours and titles, rather than on the collective network ethos that DPAC ascribes to. The motion was put forward as a rejecting of this possibility and that of the honours system more generally. This was defeated.
This motion stated DPAC opposition to discrimination on the grounds of gender, sexuality, age, faith, disability, ethnicity or status. It also empowered the Steering Group to terminate the membership of anyone who supported a party which holds discriminatory policies, like UKIP. This motion passed based on an appeals process being put in place
3. Steering Group Size
This motion sought to expand the Steering Group from 8 members to 12 in order to respond to increased activity and maintain a broad, diverse and inclusive profile. This was passed.
There were 11 nominees for the Steering Group. Conference took a vote on whether to vote for accepting all 11 nominees, or vote for them one by one. Conference voted to accept all 11 nominees. The new steering group are currently reviewing co-opted places and will get back to the additional people that applied past the deadline as soon as possible
It was highlighted that the working groups are important in taking DPAC forward. The co-chair said she hoped those who did not stand for the Steering Group but were still interested in getting involved would join these as soon as possible.
Finally, a big thank you to the Conference Organising group and Workshop leaders who worked so hard to make this wonderful event a reality.
Links to videos from the day are here with thanks to Occupy for live streaming on the day to make the conference inclusive to all are here
Links to pictures can be found on DPAC flicker here
Thanks to Pete Riches, Szucs Gabriella and Rob Peters
The powerpoint on highlights of the last year can be found DPAC Report
A link to 2013 and some of the things DPAC did is here
See you on the streets!
Also find us on Facebook with a group and open page under ‘Disabled People against Cuts’
We read with interest the piece in the Independent by Rachel Reeves and Kate Green regarding Labour’s response to the Work Capability Assessment 
Labour should realise that disabled people are deeply distrustful of any Labour reform of a Work Capability Assessment system, which Labour introduced in the Welfare Act of 2007 with the stated aim of removing 1 million claimants from the benefit system .
Our position has been and will be that the Work Capability Assessment is deeply flawed in its basic concept, not just in terms of the details of its delivery, and inclusion in the workplace for disabled people cannot simply be achieved by a ‘back to work’ test.
In the Reclaiming Our Futures, Disabled People’s Manifesto , we state that a priority demand from government is that:
A comprehensive and strategic plan of action is developed with disabled people and our organisations to tackle the discrimination and exclusion disabled people face in work and employment including: increasing quality and range of personalised support available to disabled people, strengthening disabled employees rights and tackling employer discrimination and poor practice
Other key demands include that:
Economic productivity must not be the only measure of people’s worth and value, volunteering offers as much value to society as paid employment. While we recognise that volunteering can offer additional skills, it should not be the default option for disabled people because of our exclusion from paid work
There must be policy and media recognition that there will always be disabled people who are unable or too ill to work. These individuals must be supported by a publically funded system. They should not be penalised or demonised as they are currently.
For true inclusion in the workplace for disabled people a wider approach is necessary including but not limited to:
• Will Labour commit to the restoration of Disabled Student’s Allowance,
• Will Labour commit to the restoration of the Independent Living Fund,
• Will Labour commit to the extension of Access to Work (AtW) to include unpaid voluntary positions,
• Will Labour commit to the reversal of the reduction of people who currently receive DLA, but will not receive PIP and also lose their Motability access,
• Will Labour commit to the reinstatement of the requirement for councils to produce equality schemes on employment and access
• Will Labour commit to the provision of accessible transport.
• Will Labour commit to the reinstatement of “day one” protection from unfair dismissal in employment law
• Will Labour commit to the provision of Employment Tribunals enforcing mandatory organisation-wide measures on preventing disability discrimination
• Will Labour commit to the provision that all government contracts, at a national, regional and local level, are only awarded to companies that are fulfilling measurable equality targets for the employment of disabled people
(for further points see reference 2)
These currently are some of the barriers to inclusion in the workplace for disabled people, and they will not be fixed by simply amending the WCA. The issue must be seen within the context of the wider interconnected system of barriers in place. It must be seen in terms of what a large majority of disabled people have already identified as key problems.
In terms of inclusion we also need from Labour, a recognition that for many disabled people to be able to work there has to be a nationally transportable social care system with a guarantee that people would keep the same levels of funding wherever they needed to move to work.
We need recognition that there is an onus on government and employers to fully accept the spirit of the Equality Act 2010  with its requirement to the opening of work opportunity to disabled people. Without this, no “fit for work test” aimed at cutting disability benefits will make any impact whatsoever on the numbers of disabled people who can attain and sustain employment.
We also need from Labour a stronger recognition that there are many disabled people who cannot enter the work place and should not have to live in fear of being pressured into doing so.
There is much that the article leaves out and that leaves us with a number of serious concerns and questions.
While we are not yet prepared to endorse in any way Labour’s new approach to the Work Capability Assessment, we do see the article by Rachel Reeves and Kate Green as a helpful starting point for discussions on the future of inclusion of disabled people, who want and are able to work, in the workplace and we would welcome an opportunity to meet with them and discuss this further. We would like meet with Kate Green and Rachel Reeves to ask the following questions:
1. Will Labour commit to stop spending public money on private
contractors and return any assessments of disabled people back to GPs
with medical evidence taken into account as well as give a commitment to
look at the barriers to work for disabled people who can and want to
work (in line with the social model of disability)?
2. Will Labour commit to a time and date to talk with DPAC, My Legal,
the Mental Health Resistance Network, Black Triangle, Deaf activists,
those with learning difficulties ( with an outreach of ½ a million
disabled people) to listen to the views of the largest network of grass
roots disabled people on the WCA and ESA?
3. If Labour are committed to scrapping the WCA when will Deaf and
disabled people, and those with mental health issues have sight of the
detail of any alternative Labour is proposing?
4. If Labour accepts the harm, devastation and premature deaths that have
been an outcome of the WCA why have they chosen to suspend their
prospective parliamentary candidate for St Austell and Newquay, Deborah
Hopkins for speaking out in public about the harm caused by the WCA.
5. Will Labour address the disproportionate harm that the WCA and
sanctions on ESA and JSA are causing to all disabled people, in
particular those with mental health issues and learning difficulties?
6. We along with many others insisted that a centralised Independent Living Fund
for Scotland be established and it has been done. They have also promised to re-open ILF to new users, with a commitment of additional funds and recognition of its importance to independent living and obligations to article 19 of the UN Convention on the Rights of Persons with Disabilities. Why has the Labour
Party not promised to re-establish it south of the border?
Many of the Statements included in this response are taken from the UK Disabled Peoples’ Reclaiming our Futures Manifesto and are endorsed by a UK network of disabled people and Deaf and Disabled Peoples Organisations, including: ALLFIE, Inclusion London, Equal Lives, DPAC, Inclusion Scotland, Disability Wales and the TUC Disabled Workers Committee , who between them reach several million disabled voters. References
1. How Labour would reform the Work Capability Assessment http://www.independent.co.uk/voices/comment/how-labour-would-reform-the-work-capability-assessment-9265479.html
2. The Reclaiming Our Futures, Disabled People’s Manifesto http://disability-studies.leeds.ac.uk/files/library/UK-Disabled-People-s-Manifesto-Reclaiming-Our-Futures.pdf
3. The Green Paper: The new deal for welfare: Empowering people to work. 2006 http://webarchive.nationalarchives.gov.uk/+/http://dwp.gov.uk/docs/a-new-deal-for-welfare-empowering-people-to-work-full-document.pdf
4. Equality Act 2010 http://www.legislation.gov.uk/ukpga/2010/15/contents
Are you interested in challenging the government’s huge increase in court fees?
We need people eligible for legal aid to get in touch with Karen before the 22nd April
Don’t let them get away with it without challenge!
The fee hike – coming in later this month – will affect people bringing a wide range of civil cases, including consumer claims, family cases, personal injury claims, landlord-tenant disputes, and private discrimination cases. It means that only those with deep enough pockets to afford these expensive new fees will be able to take cases to court to uphold and protect their rights.
If you think you might be eligible for Legal Aid and are interested in acting as a claimant in a judicial review challenge to the new fees then please contact me directly email@example.com
We are very much looking forward to seeing everyone who can come to our national conference on Saturday but it is also important that those of you who can’t get there in person are able to take part. There are a number of ways you can do this:
Send messages of support and your ideas for what DPAC should focus on over the next year to firstname.lastname@example.org or @dis_ppl_protest.These will be put up on the graffiti wall at the conference and included in the notes from the day.
The European Network on Independent Living is calling on disabled people’s organisations across Europe to mobilise together on or near Monday 5 May 2014 through events, lobbying and protests to oppose the deep and ongoing cuts affecting disability services and benefits.
As disabled Independent Living Fund users, close family members and allies campaigning to defend independent living rights and stop the Fund’s closure, we urge disabled people’s organisations and the broader disability movement in England, Wales, Scotland and Northern Ireland to actively support this important day.
Even small events and public activities will help to raise awareness and act as a focal point for those who want to work together to oppose cuts to services and benefits, including the proposed closure of the Independent Living Fund in fifteen months.
It is vital that we also use this opportunity to reflect and learn from the mistakes associated with the public service reforms of a decade ago and the policies of ‘welfare reform’ and ‘personalisation’, including the use of ‘tick-box’ processes such as the Work Capability Assessment and the Resource Allocation Systems in social care to replace the individual and detailed assessment of need.
The fear of a ‘demographic time-bomb’ associated with growing numbers of older disabled people in their eighties and nineties, creating an age imbalance in a static or falling population, has been used to justify the raising of the pension age and the way pensions are calculated, the erosion and privatisation of the ‘welfare state’, cuts to health and social care, changes to the benefits systems, and latterly ‘austerity’.
But a growing population associated with increasing birth rates and the immigration of young adults, improved productivity and the greater fitness and activity levels of older people means the ‘demographic time-bomb’ in Britain may be a myth.
The political climate that has undermined independent living and disability rights, and is using positive ideas such as ‘direct payments’ and ‘individualised funding’ as vehicles for shifting financial responsibility for meeting social care needs from the state to the individual needs to be challenged.
We should no longer ignore the needs of the tens of thousands of children who are compelled by their family circumstances to be ‘young carers’ or the four hundred thousand disabled people confined to residential care or the way new concepts such as ‘prevention’, ‘reablement’ and ‘recovery’ are used to deny hundreds of thousands of disabled people the services they need.
Those who argue disabled people have been ‘liberated’ and the welfare state is ‘broken’ are wrong, and only do so in pursuit of a very negative agenda associated with privatisation and greater inequality between the ‘haves’ and ‘have nots’. The same people have been passive while the Independent Living Fund has been dismissed as ‘anachronistic’ and ‘paternalistic’, and the experience and wishes of the Fund’s users and their families ignored.
The disabled people’s movement across England, Wales, Scotland and Northern Ireland has a proud history of campaigning for independent living rights, but the gains of a generation ago for disabled people of working age are now under threat, as are the social opportunities pursued by many disabled people with complex conditions.
The innovations of the ‘independent living movement’ such as the ‘personal assistance’ approach, specialised information and training, and the self-assessment of personal needs have been marginalised. While our organisations and projects have struggled financially since the millennium, tens of millions of pounds have flowed towards those who supported the development of ‘personalisation’ and its ‘evidence base’.
But what is perhaps worst of all is many of those severely disabled people who have assumed the demanding responsibility of organising and managing their own complex personal assistance support, and do so fifty-two weeks a year without any financial rewards, are defined as being ‘economically inactive’.
A jigsaw of social equality has been slowly constructed since the end of slavery and the emergence of the Chartists through the right to vote, women’s suffrage, universal healthcare, the legalisation of same-sex relationships, reproductive rights for women, equal pay legislation, and the outlawing of racism and homophobia.
Limited advances in tackling disability and age discrimination are now being reversed, with the statutory right to an individual assessment of need by local councils being replaced. Local authorities are to be given the power to restrict a disabled person’s rights or freedom of action in pursuit of a legal duty to prevent or reduce a person’s need for social care services or personal assistance.
Social equality for all will never be achieved unless the needs of disabled children and adults are acknowledged, assessed and met as of right, and those children and young people compelled into a caring role within their family because of a lack of social services support are freed from this and allowed to develop socially in the same way as their peers. But this would require an unparalleled redistribution of wealth, and the redrawing of our society’s social priorities.
We believe disabled people of all ages should: have the right to live in the community free of the threat of segregation; be supported to stay healthy, safe and free of distress; and be freed from the harsh means-tests that are a feature of social care. Young disabled people in particular should be supported to pursue their dreams and aspirations free of the social barriers and discrimination that impeded many in the past. And because of the vital social role played by full-time family carers, they should be paid a social wage of at least fifty percent of the average wage of a skilled worker.
Our movement has a collective responsibility to defend the gains we have made, and renew its commitment to campaign for full civil and human rights for all disabled people and their families.
The ‘European Independent Living Day’ is an opportunity we should not waste.
Abi Vanes, sister of ILF user
Aine Young, family of ILF user
Andy Greene, Islington Disabled People Against Cuts
Angela Mountstephens, sister and carer of an ILF user
Ann Walawalkar, parent of an ILF user
Anne Novis MBE
Anne Pridmore, ILF user and Director of ‘Being the Boss’
Anne Rae, Chair of Greater Manchester Coalition of Disabled People
Ann Rainey, ILF user
Anne Whitehurst, ILF user
Ashleigh Myatt, personal assistant
Bill Riddall, Centre for Independent Living Northern Ireland
Brian Glaves, family carer and husband of ILF user
Brian Hilton, ILF user
Bob Ellard, member of Disabled People Against Cuts
Brenda Bayliss, mother of an ILF user
Caroline Martin, mother of an ILF user
Cath Gibson, ILF user
Charles Rainey, brother and carer of an ILF user
Christine Pickthall, ILF user
Christine Squires, ILF user
Christine Stringer, parent of an ILF user
Clare Palmer, mother of an ILF user
Colin Griffiths, ILF user
Colm Murphy, family of an ILF user
David Vanes, brother-in-law of ILF user
Debbie Domb, ILF user
Debbie Jolly, co-founder of Disabled People Against Cuts and Board member of the European Network on Independent Living
We’ve had a great response to bookings for the DPAC conference on Sat 12th April in London, but places are now running out. Please email:email@example.com
with your details, number of places needed and any access needs.
12th April 2014 – 11am until 5pm
London Met University, Tower Building, 166 – 220 Holloway Road, London, N7 8DP
Since we started in October 2010 Disabled People Against Cuts has been at the forefront of the fight against austerity. With Atos on the run, and the bedroom tax on the ropes we are seeing the results of hard campaigning. But there is much more to do to ensure disabled people’s rights to live independently and with an adequate income.
The national conference is a chance for DPAC members to come together, to share experiences and discuss your ideas for moving forwards.
DPAC are working hard to bring to conference a surprise guest, a person who, if anyone has, has been the catalyst for the re-emergence of disability activism in the last few years, someone DPAC has enjoyed a close relationship with from visiting him at home to donating underpants to supporting his select committee appearances.
Workshops will look at: – Where Now for the Independent Living Fund campaign, – Developing a Social Model of Distress, – Winning the Argument, – Disability, Art and Protest, – Building a National Network of Disabled People’s Organisations and Direct Action practical skills among others.
Please note places are limited so priority will be given to DPAC members. For information about joining please contact firstname.lastname@example.org
The venue is wheelchair accessible. BSL and a note taker will be provided. For access information go to: http://www.disabledgo.com/access-guide/islington-council/london-metropolitan-university-tower-building
For access queries including booking parking please contact DPACfightback@yahoo.co.uk
To book places or for more information please contact DPACfightback@yahoo.co.uk
For those of us that can’t be there at the demo on Friday at 11.00. We must support Focus E15!
Yet another example of the misery and inhumanity heaped on ordinary working-class people, women and children by the anti-welfarism agenda. An agenda that is taking and blighting lives, an agenda that sees people without any right to decent housing for their children, and ripped from their families and friends by a program of social cleansing.
Our silence is complicity and agreement- our support shows we will not accept this!
We have been told we will not be offered council housing but that we will be offered private rented accommodation from accredited landlords outside of London in places like Hastings, Birmingham and Manchester. If we refuse this offer, we will be classed as making ourselves intentionally homeless and face temporary accommodation with little protection from eviction and no guarantee of a long-term solution from the council. Also if we chose to rent privately we are not entitled to get sufficient help with deposits which we cannot afford ourselves.
We want secure and suitable housing for mothers in east London!
‘This life is stressful I understand why people take their lives. Even more stressful if we’re young. We want to work or study, we’re not lazy, we don’t want to be on benefits forever, and we want to raise our children ourselves. Children need stability, moving is traumatic, for anyone, especially children.’
‘Our children need to know their grandparents, their cousins, their families.’
‘I have stopped looking for places as I have been rejected so many times’
‘You’re not tearing us apart from our families….we are fighters’
We are pleased that the DPAC research team’s submission to the Work and Pensions Committee has been accepted and published. We especially want to thank Anita Bellows and Bob Ellard for all their hard work on this.
Great to see submissions from our sister organisation Black Triangle, our allies, Inclusion London, WoW, Nick and Carer Watch.
We are disappointed that no formal national organisation of disabled people claiming to be run and organised by disabled people based in England appears to have submitted any text on this important issue.
We reproduce DPAC’s submission below for ease of reading
Written evidence submitted by Disabled People against Cuts (WCA0152)
Who we are:
DPAC is a grass roots campaign body. It was formed by a group of disabled people after the first mass protest against the austerity cuts and their impact on disabled people held on the 3rd October in Birmingham 2010, England. It was led by disabled people under the name of The Disabled Peoples’ Protest. DPAC has over 12,000 members and supporters and works with many anti-cuts groups, Universities, Disabled Peoples’ Organizations, and Unions
1.This document contains the Disabled People Against Cuts (DPAC) submission to the Work and Pensions Committee call for evidence on ESA and WCA dated 21/3/14
2.This submission contains a number of areas of ESA and WCA that we believe demonstrate why the ESA system is fundamentally flawed both in concept and implementation and should be scrapped with immediate effect.
3.All of the statistical claims made in this document have links provided to verifiable sources
4.The WCA descriptors are the criteria used to assess whether a claimant has limited capability for work, in other words whether a claimant falls within the eligibility criteria for claiming ESA, or not.
5.The descriptors define a set of functions related to work tasks, which, if the claimant can perform to an adequate standard, the claimant is considered able to perform some paid work and therefore not eligible to receive the ESA Benefit.
6.However we believe that the criteria for ESA eligibility are disingenuous. They take into account only functional ability, NOT the ability to hold down a job in practical terms.
7.They do not consider such issues as:
·Is the claimant able to work for suitable number of hours a week
·Is the claimant able to travel a reasonable distance to and from a job, consistently, every day.
·Is the claimant robust enough to hold down a job, without taking an unreasonable amount of sick leave
·The cumulative effects of physical stress on claimants with physical health conditions which induce fatigue symptons
·The cumulative effects of mental/emotional stress on claimants with mental health conditions
·The physical/emotional/mental stress of seeking a job
8.Nor does it consider what physical discomfort or pain, or emotional or mental pain the claimant may encounter while employed.
9.The WCA does not represent a finding on whether or not the claimant is employable or whether the claimant will be able to find work.
The ‘Gap’ between ESA and JSA Criteria
10.While the WCA is commonly called a “fit for work” test, it does not actually test whether a claimant is fit for (ie capable of doing) work.
11.The WCA tests whether claimants have the ability to perform certain limited work related functions as defined by the WCA Descriptors
12.Whereas the criteria for eligibility for the alternative benefit Jobseekers Allowance include the clauses that a claimant must be:
·be able and available for work
·be actively seeking work
13.Thus is stands to reason that there are many who will be found ineligible for ESA but not able to meet the practical requirements being able to find and hold down a job and are thus ineligible for both benefits.
14.We do not know how many claimants have found themselves in this position, as the government do not monitor this, and provide no statistics from which we can exptrapolate or estimate a number, but we believe that there will be a significant number of Disabled claimants who fall into this trap and are denied income from either ESA or JSA .
Health Care Professionals performing the WCA
15.The majority of Healthcare Professionals that perform Work Capability Assessments on claimants are Nurses, Physiotherapists and Occupational Therapists, with a lesser number of Doctors and “Mental Function Champions”
16.While we do not dispute that these Health Care Professionals are qualified and have experience as Nurses, Physiotherapists, Occupational Therapists, etc, we do dispute that this is sufficent to judge a persons’ capability to work, given the panopoly of condition types that any Healthcare professional will be required to assess.
17.The range of condition types that an HCP will be presented with include:
·Stable Physical Conditions
·Fluctuating Physical Conditions
·Mental Health Conditions (ranging from mild to extremely severe)
·Autism Spectrum Disorders
·Physical Conditions where the claimant is expected to return to full health
18.In addition it is not uncommon for claimants to simultaneously have multiple condition types such as a mental and physical health condition.
WCA and mental health
19.From the start, the descriptors were recognised as inadequate at capturing the level and the complexity of mental illnesses, and the problems faced by claimants in making a claim or an appeal were already recognised by Judge Martin in his 2008-2009 Report:
20.‘Mental health issues are a continuing source of problems in terms of making claims and assessing the impact of mental health issues on disability. In some cases mental health issues were not fully addressed or given due weight’.
21.Following Professor Harrington’s recommendations, DWP accepted to amend the descriptors to better capture mental health issues and to introduce Atos Mental Function Champions in each assessment Centre to ‘spread best practice amongst Atos healthcare professionals in mental, intellectual and cognitive. Although it has led to an increase of claimants with mental health issues being awarded ESA, and especially being placed in the Support Group, the statistics tell a different story.
23.By the end of the November 2012 quarter, the number of claimants taking up or being transferred on to Employment & Support Allowance had spiralled to 316,950 claims with nearly 140,000 of them (135,990) making a claim on the grounds of mental and behavioural problems – nearly 3 times as many as four years previously, but also representing a higher proportion in the total number of claims (44% against 37%).
24.In the November 2012 quarter, 25,950 of the claimants who took up a claim ESA on mental health grounds had been on the allowance on one or more previous occasions. These figures show a perpetual cycle of claimants and reclaiming, those with mental health problems being by far the most susceptible to making a re-claim.
ESA claimants with mental illness are disproportionally sanctioned
26.The total number of ESA claimants is 834,500 (WRAG 467,400 + SG 367,100), of which 339,200 (WRAG 193,100 + SG 146,100) of them fall under the Category ‘Mental and behavioural disorders’. It means that this group of claimants accounts for 40% of all illnesses, but because 193,100 (57%) have been placed in the WRAG, proportionally, this group is already more exposed to sanctions than any other groups.
27.A recent response to a FOI request confirms that claimants with mental health issues are not only sanctioned disproportionally, but also exposed twice to more sanctions and hit harder than any other groups.
28.Even before the introduction of the stricter sanction regime, there were already a higher number of claimants with mental health issues being sanctioned. But the latest figures disclosed show that 5,940 claimants with mental health issues were sanctioned out of 10,210 ESA sanctioned claimants (58%) in 2013.
29.The figure in 2012 was 54% when these claimants only account for 40% of all illnesses. Since October 2011, on average the rate of sanctions for claimants with mental and behavioural conditions has been exactly one third (33%) higher than for other claimants, as the graph shows.
30.This is a trend, for which the Citizens Advice Bureau had already provided anecdoctal evidence,
32.This has to be seen in the context of the number of people with mental health issues placed onto the Work Programme. The latest Work Programme statistics (20th March 2014) show that this group constitutes the majority of ESA claimants on the Work Programme (65%), although as noted previously they account for only 40% of illnesses.
33.Not only are a disproportionate number being placed in the WRAG, but an additional disproportionate number are being put onto the Work Programme, compared with ESA claimants with other illnesses or disabilities. The job outcomes for this group, as shown by the latest statistics, are very poor: only 4,2% of the 131,480 claimants referred to the programme in this group have a job outcome.
34.Not only is the WCA failing people with mental health issues by putting a disproportionate number of them in the WRAG on a shorter prognosis, and a disproportionate number of them onto the Work Programme, resulting in very poor job outcomes, but it also seems that because of the nature of their illnesses, they are the claimants having most difficulty adhering to the conditionality regime, or that they are seen by Job Centre staff as easy targets for sanctions as documented by the CAB, leading to a disproportionate number of them being sanctioned when compared to other ESA claimants.
35.Ultimately, they would be the very people whose health is likely to worsen as a result of the failings of the WCA and of the consequences of having been put into the WRAG.
36.The latest figures published by Her Majesties’ Courts & Tribunals Service in March 2014 show a dramatic reduction in the number of Social Security & Child Support appeals lodged directly with Tribunals. This is the result of the introduction of ‘Mandatory Reconsiderations’ which is a DWP internal dispute resolution process, aimed at reducing the number of appeals directly lodged with Tribunals.
37.These Mandatory Reconsiderations have had a substantial effect on the number of appeals lodged against an ESA decision. Only 32,969 ESA appeals were received between October and December 2013 compared with 111,817 in the first quarter of 2013/2014 and 76,456 in the second quarter.
38.The number of ESA appeals ‘cleared at hearings’ in the third quarter of 2013/14 has significantly increased with 83,202 being heard, of which 45% were in the claimant’s favour. This is the highest success rate for claimants ever recorded. This compares with 58,276 in the same quarter of 2012/2013 when the success rate was 42%. The overall number of cleared ESA Tribunal hearings in 2012/2013 was 224,375 with an average success rate of 43%.
39.The drastic reduction in the number of appeals lodged directly with Tribunals makes it even more urgent for the government to publish statistics on the number of ESA decisions which have been overturned in claimants’favour through mandatory reconsiderations.
40.Benefit claimants are the only group to be denied direct access to a Tribunal and therefore to Justice, although the fees introduced for Employment Tribunals also had the effect of substantially reducing the number of claims
42.Clause 15 of Part 2 of Schedule 1 of this Act excludes all welfare benefit issues.
43.Welfare benefit cases no longer qualify for advice or assistance under the Legal Help scheme, not even for initial advice to identify justiciable issues under social security law, or to provide a triage role to steer cases away from tribunal and ensure that benefit claims are processed correctly.
44.The Government’s view is that as these are matters of ‘administrative justice’ issues in which decision making, adjudication and dispute resolution systems are accessible to claimants acting on their own, and that given the underlying issues are financial, they should be of minimal priority for public funding.
45.The government also says that legal aid is:
46.“still available for civil legal services provided in relation to an appeal on a point of law to the Upper Tribunal, the Court of Appeal or the Supreme Court relating to a benefit, allowance, payment, credit or pension” (Point 157)
47.But as Judge Robert Martin points out in his response to the Ministry of Justice Consultation Paper on Legal Aid (page 8, paragraph 40):
48.‘An appeal against the tribunal’s decision in a welfare benefits case lies to the Upper Tribunal but only for error of law ….. These limitations of further “appeal” are often not appreciated by parties without Legal Help, who may fruitlessly seek to appeal further simply because dissatisfied with the outcome’
49.Although the government says that claimants can represent themselves, at a time when the UK’s social security system faces arguably the biggest upheaval since the introduction of the Welfare State, the Government should have recognised that the need for advice on welfare benefits has never been greater.
50.It should also have recognised the complexity of the benefit changes affecting disabled people.
51.Disabled people make up a disproportionate proportion of 58 per cent of those who receive legal aid for welfare benefits cases.
53.“the proposals have the potential to disproportionately affect female clients, BAME clients, and ill or disabled people, when compared with the population. This is as a result of those groups being overrepresented as users of civil legal aid services’.
54.The removal of Legal Aid for benefit claimants needs to be seen in the context of cuts to legal aid funding with £320m cut from the annual £2bn legal aid budget and the closures of 100 of Citizen Advice Bureau offices which used to support the most people with access to legal advice and representation.
55.According to the government’s own assessment, around 600,000 people will lose access to advice and legal representation, when CAB advisers estimate the success rate at ESA appeal where someone receives specialist CAB advice and is represented is around 80 per cent.
WCA Mandatory Reconsideration
56.In October 2013, DWP has introduced changes to the appeals system; a claimant wishing to appeal a fit for work decision will no longer be able to submit their appeal to DWP, which would lodge the appeal with HMCTS (tribunals) on behalf of the claimant.
59.As admitted in the government response, there are no timescale for completion of the Mandatory Reconsideration process, as shown in the response to this Freedom of Information Request.
60.If someone’s claim has been disallowed completely, they will not receive payment pending Mandatory Reconsideration as was the case previously when somebody was allowed to appeal the same decision. DWP is suggesting that claimants should claim other benefits, such as Jobseeker’s Allowance, but there is evidence that some people are being refused JSA on the basis that they cannot, because of health issues fulfill all the conditions attached to this benefit.
62.There is absolutely no indication or evidence that the UK government has taken any steps whatsover to reduce the stress or anxiety inherent in the Work Capability Assessment for benefit claimants.
63.The WCA is inherently stressful for claimants, because of the uncertainty of such a notoriously unreliable system where there are frequent media reports of incorrect decisions. Claimants are forced to wait long durations trapped in a bureaucracy that shows no compassion, not knowing if they will be judged “fit for work” and required to seek work, whether or not their medical condition makes that possible.
64.Claimants are understandably fearful that their benefits will be stopped, at the end of a process that they have no control over.
65.This is particularly harmful to claimants with Mental Health Conditions, especially those in the class of anxiety disorders as described in DSM-IV .
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.
Bedroom Tax demo in Swindon in conjunction with the Swindon Tenants Campaign Group, on 5th April as part of a national campaign.
At the fountain, Canal Walk, Swindon Town Centre
10.30 am on April 5th
We will have leaflets to distribute and banners.
We also have a project collecting peoples stories about ATOS injustice in Swindon. We will be arranging a meeting with our MPs to present our concerns. People can join the face book group or email SPA email@example.com or phone 01793 522824 if they would like to be a part of this. All information will be treated with strict confidentiality.
ATOS may have run away from the WCA contract, but they have plenty more contracts funded by public money from this unelected Government, including the disastrous PIP contract, in which people have been waiting for up to 10-12 months to obtain support. The DWP continue to oversee the round of cuts impacting on disabled people leaving them destitute or dead, sanctions are at an all time high.
NAPO, a member of Justice Alliance are striking on the 31st March and 1st April. London Criminal Courts Solicitors Association and Justice Alliance will join their protest on 1 April 2014. The protest will take place outside Westminster at 2.15 and then march to the MoJ at 3.30 where a birthday card will be delivered to Chris Grayling and we will sing an ‘alternative’ rendition of Happy Birthday.
Happy birthday to you
You want justice for the few
No more justice for the many
Only justice for you
This new guide takes you through the Parliamentary process and details how Z2K – an organisation providing practical help for vulnerable debtors – tried to influence the outcome of the Welfare Reform Bill so that the legislation took into account the needs of their client group, which may be useful for your members.
Plain English briefings on judicial review reform
PLP has developed Plain English briefings on judicial review reformJudicial review is the legal mechanism by which unfair and unlawful decisions made by public bodies can be challenged. Claims can be brought by individuals or groups who are affected by the decision. Examples of the kinds of decisions that may be subject to judicial review are:
Decisions by local authorities to close down libraries, hospitals, care homes, advice centres or disabled people’s services
Decisions by the Department of Health to limit the availability of particular types of medical treatment, such as new cancer drugs
Decisions by the police or CPS not to investigate or prosecute allegations of domestic abuse, sexual assault or forced marriage
On Saturday 29th March there will be a march and rally from Eccles to Meadowbrook Hospital to protest against mental health cuts.
·Save Mental Health Services in Salford are organising the event on behalf of mental health campaigners in Bolton, Salford and Trafford, where the local NHS trust, Greater Manchester West Mental Health Trust, is planning to reduce the number of beds by 20% over the next two years.The demo is timed to coincide with the end of their consultation on 30th March. Eccles was chosen as the location because it is equidistant from the three towns.
·The UK has lost 1700 mental health beds over the last three years; a further reduction locally will make it more likely that admissions will have to be made to units a considerable distance away, and often to private hospitals.This makes impossible for friends and family to visit, delaying the patient’s recovery.It also costs the NHS, as private beds can cost up to £4000 a week.Manchester Mental Health Trust which has already made similar reductions in capacity recently had 38 patients being treated outside of area.
·The trust claim that by closing wards they can extend cover to support care in the community but this will not be appropriate in many cases and staffing calculations suggest home visits will be of extremely short duration.
·Since the demonstration was called mental health community care workers employed by Salford City Council have been ear-marked for redundancy as part of a wave of budget cuts.Service users thus face a double whammy – there will be less support to prevent hospital admissions and if an admission is necessary there will be fewer hospital beds.Redundancy notices have not yet been issued but if they are employees will be ballotted for industrial action.
·There will be a rally at Eccles Cross at 12.30 pm, with speakers from all three areas, including service users, carers, trade unionists and health campaigners.The march will move off at 1.00 pm and proceed through the pedestrian precinct, along Wellington Road, Gilda Brook Road, and along Eccles Old Road, past Salford Royal Infirmary, and down Stott Lane to a rally at Meadowbrook at approx. 2.15 pm.
·Organisations supporting the march include:
oUNISON Greater Manchester West Mental Health Trust (Karen Reissman 07972 120451)
oSalford against Cuts (Kevin Corran 07971 495597)
oSave Mental Health Services in Salford (Jill Royle 07914 893653)
oUnited Service Users Committee (Steve Cullen 07941 400870)
oGreater Manchester Keep Our NHS Public(Hugh Caffrey 07769 611320)
This is an account we received of the continuous damage the regimes of Government do, on an individual basis and on a family basis-while the private companies lap up millions in public money. The impacts of failed systems are more and more destructive, making no sense at all.
My son is 23 years old and lives with us. He has a serotonin deficiency which makes it difficult for him to sleep normally like other people. So he will go for days without sleep and then crash without warning and then nothing we can do to rouse him.
It’s always been a problem but it got worse when he was 15 due to severe depression and the fact that he had a number of traumatic incidents including saving sister from being kicked & hit by a rock at school, being hit with a half brick on way home from school and punched in the face by someone he only knew vaguely. Then there were 2 muggings, one of which involved him going to police station and identifying assailants etc but he didn’t go to court as assailants pleaded guilty. Left him with traumatic stress syndrome.
So where previously he struggled to college he gave up and now spends months at a time in his room. Sometimes I don’t speak to him for weeks. Just leave messages on his computer. Some of his behaviour is quite odd but can’t get him psychiatrically evaluated as they say he is not in crisis and he won’t go there. They did manage an assessment over 18 months and found he was depressed and suffering from depression plus his neurologist has written letter to DWP about my son’s physical problems.
Progress until Atos and back to work scheme
Things were beginning to go well. Under the neurologist they had worked out a strategy of treatment including a light box and drug treatment. That’s when ATOS struck. They had to try twice to find my son actually awake. We told ‘assessor’ all his problems but they moved him onto a back to work scheme. I wrote a letter to DWP and said there is no way that my son could guarantee to make any appointment. His treatment had just started and involved him adjusting gradually to a more normal sleep pattern which could take over a year to do. Forcing him to go to set appointment would destroy the treatment strategy.
We went to CAB and we appealed against the decision. We had to wait a year before they even replied. Meanwhile the appointment letters kept coming. He made the first one at Job Centre. Seemed very positive and hope of training on some online course. Son was handed over to this other group SERCO but was told that they would take into account his sleeping difficulty. After several missed appointments he made a Serco appointment. The added problem of him going, as well as sleeping problems, meant that he wouldn’t travel on his own to the appointment, as he had panic attacks. The stress of whole thing was beginning to tell on all of us too.
Treatment abandoned, appeal abandoned
My son’s treatment regime had to be abandoned due to all these appointment letters phone calls coming. He missed the appointment. I would have to phone and explain why. They would send another appointment and the whole cycle went on for months. It was making me ill as well as my son. Then we were sent a piece of paper to sign to say Richard had seen them. I took it to CAB and asked should he sign it as he had only seen them once in six months. I was told he had seen them even if it was only once so my son signed it and they moved him to new group and new building. All the stress and failure of never making a meeting made my son sink back into the depression.
So he moved onto next group. There has been no help for him getting online courses. They wouldn’t talk to him online. He won’t use phone as it often brings on panic attacks. So he goes for several months and this time doesn’t make any appointments.
He is more withdrawn than ever and even misses seeing Neurologist.
Finally the DWP reply about appeal and say there will be meeting within six weeks. I go to CAB to prepare case but Son takes off in panic to Friend. I didn’t know exactly where although I knew he was safe and got messages from him re emails. CAB says we can’t continue without Son so we withdraw appeal and son comes back home.
Increasing problems, but Serco still drawing the cash
His behaviour is now more and more erratic. He talks of laundry baskets attacking him and pinning him in corner. I set up appointment with GP but last minute he is asleep. SERCO then say he has passed through 2nd stage and is on 3rd stage. They set up an appointment for him to go to workshops. He hasn’t made one yet. The pressure of letters and phone calls start again but I have stopped answering them or phoning to cancel as my own health means frequent doctor appointments and clinic appointments and can’t keep up with SERCO too. I went to ATOS and actually passed as too sick to work. I do have chronic ME, a cataract and severe chest problems and was nearing 60 but hasn’t stopped ATOS re friends of mine. Probably the stress re my son helped as I was pretty shattered with it all and all my own hospital tests.
Son has taken off once again to the friend. The letters are piling up. I suppose I should tell SERCO he is gone as he has been away for over a month. I think whole thing is a scam as no way has he progressed and he hasn’t had any useful help. If they were legit they would have referred him back to DWP and he probably would have had his money stopped. However if I go to DWP or police they could argue that sons flight off to friend means he isn’t meeting terms re benefit and possibly even accusing him of fraud. CAB says we need psychiatric evaluation of son. GP is unwilling to send someone to our home when Son is there & Mental Health people say he is not a danger to himself or others. If he has to talk to authorities he will probably leave forever and I will lose all contact with him. So at moment I know even SERCO will have to claim he has finished course eventually and then we will have to challenge them. We will be asked why we didn’t challenge before and Son will go into hiding.
Jenny is the Artistic Director of the Graeae Theatre and co-directed the London 2012 Paralympic Games Opening Ceremony. Having such a high profile job, and with the government still making reference to the Paralympic legacy, you might expect that she would have escaped the 30 hour guidance. This is not the case. Jenny, like every other Access to Work user, is having to fight for the support she needs to do her job.
You can expect to see and hear a lot more from Jenny and our campaign very soon!
I just want to talk about Access to Work without that provision, I couldn’t do my job, it’s fundamental to being Chief Executive and Artistic Director of Graeae Theatre. Access to Work is amazing, it’s so brilliant to have that, when we were doing the Paralympics, I had a team of 14 or 15 fully highly qualified interpreters working amongst, I think there were 10 deaf people, plus me, and I had my own core team of three. Without that skill, that knowledge and everything, we would never, ever have been able to do such a glorious Paralympics and for all those deaf people to have full and equal access.
What I need in my job is so varied, I go from rehearsals, to budget meetings, to board meetings, to networking, working in schools, it’s so varied so I’m very, very aware, I carefully pick which interpreters I need for which jobs and to be forced to have one interpreter, just in the office… That’s giving me just one voice, one interpretation, all the way through my working life… That’s not going to work for someone like me, and there’s many, many other deaf people that I know, that same style will not work for them either. My interpreters need to be cast, I suppose, in the same way that I cast my plays… So I have the right person for my budget meetings, you know, an interpreter that knows and understands finance… I have the right interpreter when I’m working in schools that understands the school environment… I want, I need, and have to be allowed choice, and that is the same for other deaf people. Also, we need to have fully qualified high spec interpreters, not, you know, a baby CSW… Because… That’s wrong, and that means we’re not getting full and equal access, so… please, please, we have to have choice, skill, and qualified interpreters… We need that.
See below for a template covering letter citing case law that ‘obliges Decision Makers to take into account the relevance of a claimant’s existing DLA award when considering a Work Capability Assessment’
We write on behalf of the above-named person. His authorisation to correspond is attached.
We helped M.. complete the enclosed ESA50 form.
He gets highest rate care of Disability Living Allowance (DLA) because of his many care needs. He is also, for obvious reasons, in receipt of the higher rate mobility component of DLA. While we are aware that DLA has a different focus to ESA, case law (JW v SSWP (ESA)  UKUT 256 (AAC)CE/2894/2011)obliges Decision Makers to take into account the relevance of a claimant’s existing DLA award when considering a Work Capability Assessment—there may be sufficient “common ground” for one to provide material evidence in respect of the other.
We are concerned that there would be substantial risk to M….s’ health if he were found not to have Limited Capability for Work (Regulation 29 ESA Regs.) or if he were found not to have Limited Capability for Work-Related Activity (Regulation 35 ESA Regs.). And given the level of care he requires, we cannot see what reasonable adjustments any prospective employer or JCPlus Claimant Adviser could put in place to lessen that risk.
In light of the above, we would ask that M….. be placed in the Support Group of ESA without having to undergo a Work Capability Assessment.
The use of these regs by doctors and welfare advisors has also been part of a long campaign by our sister group Black Triangle Campaign.
Attached is a piece of case law saying that a physiotherapist opinions re a claimant with mental health problems has “no probative value whatsoever”.The reference is at paragraph 22.
This case law is very useful to include in ESA applications and WCA appeals so please pass to any Welfare Benefits advocacy/advisors or use yourself.
This information has been proven to contribute to a high success rate re ESA/WCA