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Top Incapacity related benefits topic #3158

Subject: "Mental illness and ESA" First topic | Last topic
Steve Johnson
                              

Manager, Walthamstow CAB
Member since
24th Oct 2005

Mental illness and ESA
Mon 18-Aug-08 03:46 PM

Colleagues,

With only barely two months to go before the launch of ESA, there appears to be developing concern (already reflected in this forum and in other places) about the way that ESA will affect people with mental health problems. Critics point to the ambiguity of the some of the new activity and descriptor language, and to the absence of any exemptions for people with mental health problems from the new 'limited capability for work' test (LCW), although there is still a possibly useful 'exceptional circumstances' possibility for those who fail the test.

On the other hand, others have commented that the expanded list of activities and descriptors for this client group implies a broader recognition of their problems, thus carrying with it an improved chance of passing the test. But does the expanded list of activities actually improve your chances?

For example, have a look at Activity 13(a), which is a 'home run' 15 pointer...

'...On a daily basis, forgets or loses concentration to such an extent that overall day to day life cannot be successfully managed without receiving verbal prompting, given by another person in the presence of the claimant...'

On first sight, this is a new possibility, and under the old rules, a person might otherwise have to scramble around trying to gather 1 or 2 points wherever they can across the pre-existing four activity headings in the PCA to get the 10 points needed. However, I reckon its going to be pretty hard to satisfy 13(a).

Take the new activity 16(a): also worth 15 points...

'...Is unable to successfully complete any everyday task...'

How many clients will succeed here? Looking further down the descriptor sub list of activity 16, here is 16(d), which is worth 6 points:

'...Takes one and a half times the length of time it would take a person without any form of mental disablement to successfully complete an everyday task with which he is familiar...' How are they going to measure this? Subject to lengthy challenge, who sets the baseline definition of the time it should take, in the absence of disability? You guessed it!

Has anyone had the chance to run their client's current circumstances (those successfully on IB etc with mental health problems) against the new LCW test, to see how they come out?

The Government says that about 10% of the current sick cohort will fail the new LCW test, once it's light eventually shines on them. How can we prepare for this, and who is going to pay for the upgraded medical evidence that will be needed to help our clients jump over the raised bar?

Sorry if all this has been raised before!

Steve

  

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Replies to this topic
RE: Mental illness and ESA, rwils, 18th Aug 2008, #1
RE: Mental illness and ESA, Steve Johnson, 18th Aug 2008, #2
RE: Mental illness and ESA, ariadne2, 18th Aug 2008, #3
      RE: Mental illness and ESA, Steve Johnson, 19th Aug 2008, #4
           RE: Mental illness and ESA, rwils, 19th Aug 2008, #5
RE: Mental illness and ESA, Paul_Treloar_, 19th Aug 2008, #6
      RE: Mental illness and ESA, Steve Johnson, 19th Aug 2008, #7
           RE: Mental illness and ESA, steve_h, 20th Aug 2008, #8
                RE: Mental illness and ESA, Steve Johnson, 21st Aug 2008, #9
                     RE: Mental illness and ESA, steve_h, 22nd Aug 2008, #10
                          RE: Mental illness and ESA, Steve Johnson, 22nd Aug 2008, #11
                               RE: Mental illness and ESA, steve_h, 26th Aug 2008, #12
                                    RE: Mental illness and ESA, Steve Johnson, 26th Aug 2008, #13
                                         RE: Mental illness and ESA, Richard Stacey, 27th Aug 2008, #14
                                              RE: Mental illness and ESA, Steve Johnson, 27th Aug 2008, #15
                                                   RE: Mental illness and ESA, JudyScott, 27th Aug 2008, #16
                                                        RE: Mental illness and ESA, Steve Johnson, 29th Aug 2008, #17
                                                             RE: Mental illness and ESA, Paul_Treloar_, 29th Aug 2008, #18

rwils
                              

Welfare Rights Officer, Newcastle Welfare Rights Service
Member since
12th Oct 2004

RE: Mental illness and ESA
Mon 18-Aug-08 04:53 PM

Interesting comment from local JC+ at recent liaison meeting. When someone raised a concern about making claimants with mental health problems look for work (when that sort of conditionality does actually happen), JC+ person said they expect most claimants with "mental health problems and learning disabilities" will be in the support group.

I suspect this means any Mental Health Trust service users, because if any current claimants in that group try attending work focused interviews and asking for support, they just get sidelined as the personal advisers are either scared of them, or know they will need more support and more intensive work than easier targets.

On the other hand, when I have briefed mental health workers locally on ESA they have been bemused by the mental health descriptors and struggled to see how many of them can sensibly be applied to their service users.

I think, as do others who have commented on this, that it will be claimants with mild to moderate mental health problems and learning difficulties rather than disabilities, who will potentially fail the WCA in large numbers; those with severe and enduring mental health problems seem likely to be diverted into the support group whether they like it or not. I know they can "volunteer" for the Pathways support but I doubt there will be much encouragement to do so.

  

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Steve Johnson
                              

Manager, Walthamstow CAB
Member since
24th Oct 2005

RE: Mental illness and ESA
Mon 18-Aug-08 05:45 PM

Points noted. If there was a genuine ambition to allocate people with mental health problems etc into the support group, then why aren't the descriptor entry points for the support group more open to this kind of membership, and why aren't there specific exclusions to facilitate such an ambition?

I suspect you are right about the fear factor - you only have to read some of the Pathways To Work support materials to realise there is anticipated concern about some potential claimants - see for example 'Section 2 - Mandatory Elements of Pathways to Work' Guidance. Para 30 onwards has a whole section on 'potentially violent customers'. This is not to say that JC+ staff should not be protected - my point is that JC+ and its private partners are preparing for scenarios that might unfold, by virtue the all encompassing nature of the new ESA system.

I also completely agree that it will be the 'lower echelon' cases which end up failing the LCW test - the numbers speak for themselves: More than 40% of the current sick claimant caseload (IB/IS/SDA) is attributable to those with mental health problems. Yet of those who who do survive the new LCW test, maybe only 5% will then end up in the support group. A whole lot of others with mental health problems will therefore be enjoying conditionality, in its initial and eventually enhanced form.

ESA is meant to tackle real or imagined assumptions about mental health and work - we know this from all the recent publications emanating from the DWP about the benefits of work, not least for those with mental health problems, of one kind or another.

Indeed...'everything is beautiful' - Ray Stevens - you were a visionary!

Steve

  

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ariadne2
                              

Welfare lawyer and social policy collator, Basingstoke CAB
Member since
13th Mar 2007

RE: Mental illness and ESA
Mon 18-Aug-08 07:59 PM

The abolition of the exempt categories for such things as serious mental illness and severe learning difficulty means that far more people with these difficulties will be subjected to the WCA than were ever subject to the PCA. Experience suggests that if anything the exemption may have been too liberally applied to people with anything more than mild learning disability, and also that many of the ATOS medical examiners are not capable of recognising learning disability (of any level of severity)when it is staring them in the face.
I understand that the expectation is that many people will be found to satisfy the WCA without examination - there's supposed to be going to be much better evidence gathering, so as long as that works (big if) it just might happen.

  

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Steve Johnson
                              

Manager, Walthamstow CAB
Member since
24th Oct 2005

RE: Mental illness and ESA
Tue 19-Aug-08 07:24 AM

You are right to say that JC+ has an expectation of early decision making based on paper evidence, but I think I have only seen this prediction in the context of allocation to the support group (typically in relation to those with terminal illness, and others who have had strokes etc).

If you have seen official guidance/discussion documents predicting a broader use of this method (ie to pass the LCW test in non support group allocation cases), please advise the source, because this might be useful in day to day struggles with decision makers on cases.

  

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rwils
                              

Welfare Rights Officer, Newcastle Welfare Rights Service
Member since
12th Oct 2004

RE: Mental illness and ESA
Tue 19-Aug-08 08:52 AM

I've posted this elsewhere so apologies for repeating it - I think this statement from the notes accompanying the claim form is suggestive of how they might proceed: "some medical conditions or mental health problems are so severe that we can decide straight away that they would affect your ability to work. If you have one of these conditions you will not need to have a medical assessment unless you want to"

I take your point about evidence gathering. Another comment at the JC+ liaison was that they expect to be contacting GPs/psychiatrists at the same time they send the ESA50s to claimants with an identitifed mental health problem. So that's all right then..

  

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Paul_Treloar_
                              

Director of Policy and Services, Disability Alliance, London
Member since
15th Sep 2006

RE: Mental illness and ESA
Tue 19-Aug-08 09:25 AM

JC+ person said they expect most claimants with "mental health problems and learning disabilities" will be in the support group

I must admit to being very surprised that a JC+ official would make such a statement. I see very little scope under Schedule 3 for the majority of people with even quite severe mental health problems to be automatically identified as being part of the support group. I also share Steve's concern about the capability of DWP, but more especially ATOS health care professionals, to properly interview and examine people with mental health problems, learning disabilities and autistic spectrum disorders, the last 2 groups of diagnoses having been largely absent from prior investigation under the PCA.

Whilst a great deal of time and effort went into the rewriting of the mental descriptors, I have not seen very much evidence of similar amounts of time or resources being channelled towards improvements in the medical examinations and/or decision making related to the WCA. Descriptors are only as good as the process that encompasses them. And as we highlighted on Five Live recently, there are still tremendous problems with people being denied IB/IS because of PCA problems, who later have the decision upheld in their favour on appeal. The need for supporting medical evidence will be at a premium in future I feel, and far from reducing the demands on medical professionals working with people to try to improve their conditions, could actually lead to more demand.

When we were participating in the overarching PCA group, I raised the issue of people on mental health sections and whether they would be offered automatic exemptions from the conditionality and/or automatic entitlement under the WCA, on the basis that it is pretty unarguable that someone in such a position has a clear limited capability for work, let alone work-related activity. Sadly, this suggestion was rebuffed, which I feel can only mean problematic situations to resolve for claimants, advisors and JC+ staff, as I know from prior experience.

  

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Steve Johnson
                              

Manager, Walthamstow CAB
Member since
24th Oct 2005

RE: Mental illness and ESA
Tue 19-Aug-08 11:06 AM

Paul,

Could not agree more with all your points and concerns. On the issue of medical report costs, we find relatively few doctors/consultants etc who do not now charge, compared to, say, 10 years ago. Fuller reports to meet the tightened criteria for the LCW test (let alone support group entry), may well mean higher report costs.

I know the matter has been raised before, but unless you can claim the cost of the report as a disbursement under LSC funded work, it will probably be up to claimants to fund reports, unless charities can come to the rescue (which are best ones for this, by the way?).

But maybe I am being too pessimistic!

Steve

  

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steve_h
                              

Welfare Rights Caseworker, Advocacy in Wirral, Birkenhead, Wirral
Member since
06th Mar 2006

RE: Mental illness and ESA
Wed 20-Aug-08 03:17 PM

I am currently running ESA training courses and the feedback from the attendees is always concerned about people with severe mental illness. Unless they are given the right support through the whole of the ESA process there is a real danger that they will be denied ESA and their only option to benefits will be to claim JSA, which they won't get because they won't be able to keep to jobseekers agreements due to the very nature of their illness.
I am thinking of those who do not access advocacy or advice services, for one reason or another, and will be faced with WCA's, WFI's, WFRHA's etc, I mean, have you seen the new ESA50 forms? The only actual descriptors identified are the 6 point ones, unless you know the choice of descriptors, there is a real danger of incomplete or factually incorrect self assessment of functional and mental ability.
I can see a vast increase in the amount of appeals against sanction decisions, and to get people into the right group or from one group to the other.

  

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Steve Johnson
                              

Manager, Walthamstow CAB
Member since
24th Oct 2005

RE: Mental illness and ESA
Thu 21-Aug-08 03:37 PM

Hi Steve,

The explanatory memorandum to the ESA regs is more optimistic than you are, regarding the likely number of sanction appeals. The memorandum reckons only 0.5% of awards will end up with a sanction appeal, which is projected to be only 1,500 in all, per year. Thats just 4 appeals a day, for the whole of the UK!

Unhappy with your Main Phase group allocation? The memorandum predicts only 6,000 appeals a year.

If these predictions are correct (they are no doubt based on Pathways To Work data), then the reason will probably be lack of available advice and advocacy - a scenario you yourself envisage in your post.

Steve

  

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steve_h
                              

Welfare Rights Caseworker, Advocacy in Wirral, Birkenhead, Wirral
Member since
06th Mar 2006

RE: Mental illness and ESA
Fri 22-Aug-08 11:06 AM

Have a look at the impact assessment at

http://www.dwp.gov.uk/welfarereform/legislation.asp

This shows an estimated extra 26,500 appeals

  

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Steve Johnson
                              

Manager, Walthamstow CAB
Member since
24th Oct 2005

RE: Mental illness and ESA
Fri 22-Aug-08 11:38 AM

Yes, but 20,000 of that number are predicted to be people failing the new LCW test. Add on the 6,000 appeals re Main Phase group allocation, plus 1,500 re sanctions, and that makes up the 26,500. The issue being discussed earlier in this thread was the likely number of sanction challenges, rather than the overall increase in the number of appeals.

Steve

  

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steve_h
                              

Welfare Rights Caseworker, Advocacy in Wirral, Birkenhead, Wirral
Member since
06th Mar 2006

RE: Mental illness and ESA
Tue 26-Aug-08 07:52 AM

Sorry, I missedthe point, but do you think the amount of sanction appeals will increase when the process is farmed outside the DWP?

  

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Steve Johnson
                              

Manager, Walthamstow CAB
Member since
24th Oct 2005

RE: Mental illness and ESA
Tue 26-Aug-08 04:14 PM

Hi Steve,

I certainly hope there will be additional challenges, but as discussed before, the concern for me is where all the extra advice resources will come from, to mount all these challenges. The vocational aspect of advice work has always been misplaced. What work should CABx and other advice outlets abandon, in order to meet the appeal challenges presented by ESA?

Who has spare capacity?

Steve

  

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Richard Stacey
                              

Benefits Advisor, Wiltshire Law Centre
Member since
02nd May 2008

RE: Mental illness and ESA
Wed 27-Aug-08 10:16 AM

Just for the sake of completeness the BMA guidance recommends a charge of 113 for a medical report from a GP.

We, at the Law Centre, have the privilege of having the LSC contract to "disburse" this cost, but for the many agencies that cannot so do obtaining medical evidence is an increasingly costly consideration.

Also, time pressured General Practitioners may find that they are increasingly disposed not to waive the fee if there is the significant increase in requests suggested by this thread.

In short the true "cost" of appeals is simply being buried in other government departments; ie the DOH where "free" or "reduced fee" reports are produced or Ministry of Jusice where the allows for the disbursement.

I am particualrly annoyed by DLA decsions that reject the claim without recourse to a medical report that we then fund in order to show the decision to be wrong. (Apologies for going off thread)

Rich

  

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Steve Johnson
                              

Manager, Walthamstow CAB
Member since
24th Oct 2005

RE: Mental illness and ESA
Wed 27-Aug-08 11:25 AM

Hi Rich,

These are very good points. 113? - barely enough for three decent bottles of Chablis. Some of our doctors charge more, some less. I know some advice agencies have historically funded reports by diverting 'sundries' running costs expenditure. I am told this is naughty in terms of accounting procedures, and in any event, it means making choices about who to fund, and who not to.

As mentioned before, it looks like clients will increasingly have to fund their own reports. Should this be on the 'slate', with advice agencies paying upfront, and then recovering by installments? I am surprised such an opportunity hasn't occurred to all those companies flogging loans and equity release on daytime TV! (...'Just think about what you could do with 20,000!... an ocean cruise... double glazing... and a consultants report to try to get your DLA back!...')

On the disbursements thing, we had an 80 year old client last month who is 75 pence a week outside financial entitlement to LSC contract assistance (and only then because she had worked a little too long past pension age). House equity has shut her out of any funded legal help to deal with the aggressive neighbour (all the usual remedies having failed). I didn't have the heart to tell her by how much she was too 'rich'.

Steve

  

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JudyScott
                              

Independent Consultant, Incapacity Benefits and Employment law
Member since
12th May 2004

RE: Mental illness and ESA
Wed 27-Aug-08 01:36 PM

Just seen your messages - I was on the consultative group of the DWP Review of the PCA for mental health or rather the Review of descriptors for mental health and the forms.

We were not allowed to see the preset computerised Q & A decision making tree (LIMA) so did not discover how mental health problems are currently determined in a short interview.

I resigned when I learned that the new draft descriptors were not going to be evaluated by any sensible means. In practice DWP carried out a 'pretend' evaluation that was published purporting to be an evaluation.

Colleagues who had not resigned told me about the 'evaluation' process they were involved with.

DWP allowed committee members to see the Examining Medical Practitioner's (EMPs) reports on a small number of people being assessed, taken via the existing system of assessment, and to compare these to the EMPs reports on the same person using the new draft descriptors and point system .

The evaluation was a sham because:
There was no check as to whether all forms of mental health conditions were included in the small sample of people coming forward at that time.

There was no opportunity for committee members to have a discussion with the person who was assessed as to whether the questions that had been asked were helpful in determining their health condition or disability or whether their answers had been correctly recorded or interpreted by the EMP.

There was no independent report from the person's own GP or their psychiatrist other than the couple of usual vague notes on the form.

In short the only thing DWP and committee members could learn from the 'evaluation' was the number of people who would get ESA in the future as compared to incap benefits at present. Most disability charities disassociated themselves from the recommendations

As it stands there could be any number of people with seriously disabling mental health conditions who will fail the new assessment and not qualify for ESA and the reverse. DWP does not know. The same applies for people with physical conditions. It is a scandal.

At least there are now some more appropriate descriptors for learning disability - there were none before as DWP systems lumped learning disability together with mental health conditions. I pointed this out to DWP. Also Autistic Spectrum Disorders are now included thanks to the efforts of their representatives on the committees. And at least the forms that GPs or other medical specialist are asked to complete as part of the information gathering process and the form for people to complete now allow for a bit more detail for mental health conditions.

Judy Scott

  

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Steve Johnson
                              

Manager, Walthamstow CAB
Member since
24th Oct 2005

RE: Mental illness and ESA
Fri 29-Aug-08 10:15 AM

Hi Judy,

Your information is very interesting. What I still can't understand is why has the list of Activities and Descriptors been expanded in the way it has, if the overriding ambition is to reduce the number of successful awards (including people with mental health problems etc)? There maybe some hugely obvious reason, thats passed me by.

There is the fear that the new Activities and Descriptors true role is to provide a more detailed basis on which to refuse awards - bringing with it reduced chances at appeal. Maybe we have become too impressed by the scale of increase in the number of mental Activities, although I take your points concerning learning disabilities etc.

Steve

  

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Paul_Treloar_
                              

Director of Policy and Services, Disability Alliance, London
Member since
15th Sep 2006

RE: Mental illness and ESA
Fri 29-Aug-08 10:37 AM

I think it is partly because so many more people who were previously exempt from assessment will now be looked at under the WCA, hence the need to encompass conditions that weren't considered before.

  

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Top Incapacity related benefits topic #3158First topic | Last topic