Jun 172014
 

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 be at least 567,634 – 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.

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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.

Government’s key defence of the assessments has been that around 9% of all decisions are incorrect.  The most controversial of which are those where a claimant is found fit for work.  DWP figures (for new claims) show that betweenOctober 2008 and September 2013 a total of 1,306,200 fit for work decisions have been made.

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 figures completely negate all of the DWP’s claims that it is getting the majority of its decisions right. Government ministers in conjunction with the DWP’s Press office have been telling us that a million claimants have been found fit for work whereas these figures show that in reality this is only a small part of the true story and that huge numbers have gone on to successfully appeal decisions which were wrong.

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

These figures have been available to the DWP and its ministers since April 2010 from their ‘Decision Making & Appeals Case Recorder (DMACR) – ESA Management Information Statistics’. The DWP confirms this to be unpublished information which is for internal department information only, yet our research notes that the Right Hon Chris Grayling was using the same information in answer to Parliamentary questions on the 10th January 2012. 

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.

Editorial notes

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.

http://ilegal.org.uk/thread/8640/release-staggering-numbers-overturned-secrecy?page=1&scrollTo=21759

with thanks as ever to Nick  @Mylegalforum

Apr 022014
 

It strikes me that not enough mention is being made of the important victory in the Court of Appeal in the case of [2013] 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.

My note

Whilst the judgement places an emphasis on the DWP seeking further medical evidence in mental health cases, the reality is that in many cases the DWP fails to do so.  In the investigative report in to the death to which I have referred it appears for instance that the claimant’s doctor was not contacted and asked to complete what is called an ESA 113 report.

There is nothing to prevent a claimant when completing the ESA 50, especially when assisted by someone, to point out that they specifically want the DWP to obtain further medical evidence from their own doctor or clinicians.  A claimant could for instance write something along the following lines:

“I have severe mental health problems and find it impossible to describe them in this form.  Please ensure that you contact my doctor (or other named clinician) and ask them for full details of my mental health problems.  I believe this is necessary to make a proper decision on my claim.”

In long term claims it may also be relevant to state:

“You already hold details of my long term mental health problems and I am asking you to make sure these are made fully available to the decision – maker who is looking at my claim.  I believe these details to be very relevant to getting the full picture and vital to a correct decision being made.”

In Incapacity Benefit cases where you have been asked to undergo an assessment for Employment & Support Allowance, the following may be relevant (most claims have now now been ‘migrated’ according to the DWP).
 

When you receive the ESA 50, make an appointment to speak with your doctor either by phone or at the surgery.  This is particularly important where you have not seen your doctor for some time.  Tell your doctor you are being reassessed and ask for a review of the time since you were last seen by the doctor.  This allows you to update your doctor and tell him or her of any problems you have faced since you were last seen, it also means the doctor is better equipped to comment if the DWP contacts them.  It also makes it possible for you to bring matters to the attention of your doctor over which they may be unaware.  You could for instance talk to them about declining levels of social confidence and any fears you have about meeting people or facing certain situations.

The reason this is important is because in incapacity benefit to ESA cases, no medical certificate is required at the commencement of the ‘conversion phase’.  You only need a medical certificate if the DWP assesses you and finds you fit for work and you want to appeal.   The rules are different to new claims for ESA where medical certificates are required at the very start of your claim in the ‘assessment phase’.  In migration cases the ‘prompt’ to speak with your doctor about a certificate only arises once you have already been assessed.

Claimants who have been refused ESA in cases where mental health was relevant (even if the DWP did not know of this) and no attempt was made to obtain further medical evidence by the DWP should consider an appeal.

There will be more on this in subsequent posts.

With thanks to the brilliant nick at http://ilegal.org.uk

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