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Access to Work application-’standard equipment’ v specialist equipment

AEastwood
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The Bond Board, Rochdale

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Hi,
With regard to an Access to Work application for equipment to allow a disabled person to remain in work (working from home). The DWP have agreed to fund an adapted work chair and some software and training to reduce the need to type.
The CAPITA assessor also recommended several other items (eg, leg rest, foot rest, roller ball mouse (in excess of £200), memory foam arm pads for the chair (skin pressure issues) and a portable desk (to allow working from bed). The DWP’s decision is that all this equipment should be provided by the employer (a small registered charity) as it is considered either ‘standard equipment or a ‘reasonable adaptation’.
The employee is conscious of the employer’s limited resources and would rather see the DWP pay for the items rather than the employer, where possible. There is a right to request a reconsideration of the decision.
Two questions:
1) Does anyone have any info on the distinction between standard equipment/reasonable adjustment v specialist equipment, which would be used to form the basis of any review (surely a desk to work from bed goes beyond a reasonable adjustment??)
2) Does anyone know if there is a right to appeal if the reconsideration is unsuccessful?
Many thanks.

Mike Hughes
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Senior welfare rights officer - Salford City Council Welfare Rights Service

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Long answer ahoy. Apologies in advance.

The much revised/improved A2W is little more than a shambles erecting barriers every step of the way. One of their big steps “forward” was to remove all the public guidance from the net detailing what was or was not allowable. They also removed all information about how to challenge a decision and, of course, having privatised the assessments, they can also claim that the decision isn’t necessarily made by ATW themselves. That doesn’t prevent a review request, a complaint or a judicial review but those do seem to be the only options. A FoI request around 2014 suggested that the Independent Case Examiner (ICE) was the route but they only examine procedural/admin. irregularities and not the substance of a complaint. They’ve also been held to be not fit for purpose as an agency albeit that the success rate is okay. http://www.rightsnet.org.uk/welfare-rights/news/item/dwp-should-pay-close-attention-to-all-aspects-of-every-complaint-at-an-earl. If you want to change the substance of a decision they are ultimately probably not the way to go other than to exhaust due process etc.

Matter is complicated further by each provider having their own catalogue of approved sub-contractors/providers for the equipment. Recommendations only use that catalogue and that means that sometimes doing your own research on what you need can be better.

The general principle is akin to PIP aids and appliances i.e. if it’s an ordinary everyday item that anyone could desire or buy because they want it then it doesn’t count.

Now, having said that, all of the items you list do indeed sound like standard items but you’d need to check this. However, the more interesting approach is to maybe come at it from a different angle. Private companies I suspect make money by making lots of recommendations for items that people simply don’t need. A2W certainly wanted me to have in ear headphone to assist with my tinnitus despite my expressed view that they would antagonise said condition.

Those items which are ‘reasonable adjustments’ are the ones which are the minimum required to keep the client in employment. Everything else will help but may not be a deal breaker. Now, a client can of course take action for a failure to implement RAs but that does raise the question of what is “nice to have” and what is an “RA”?

I have to say that, desk aside, most of those on your list are negligible in cost and unless the employer can make a coherent case for refusing using one of the five legitimate reasons for doing so then they’d be better cracking on with it in my view. 

They are recommendations and an employer doesn’t have to follow them but that carries an attendant risk of action under EA 10 and possibly involving accusations of direct discrimination which of course opens up the possibility of damages without limit. That phrase usually focuses minds in terms of looking at the best solution. 

The employees views on who they would like to fund this are irrelevant by the way. They’re also concerning as they’re the sort of comment I have heard from many people over the years who fear that, having possibly upset the apple cart by asking for an assessment, things could get very bad with their employer indeed if DWP aren’t liable to pay for anything.

The idea that a desk to work from bed goes beyond reasonable is based on an erroneous understanding of RAs. Employers and their staff/managers often erroneously conclude that RAs are some sort of gift that makes the recipient someone who is getting special treatment. The opposite is true. They are the minimum requirement to enable someone to perform at the same level as other employees. You’re bringing the disabled employee up to other staff not raising them above them. Additional to that is the idea that RAs which look unique can’t possibly be right. I’ve heard it expressed as “but we wouldn’t normally do that”. Those things you wouldn’t normally do. They’re the very definition of what an RA is!

So, if the only thing preventing an employee from working is that they can’t always get out of bed and if they can clearly work in bed, then the desk is absolutely an RA.

AEastwood
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The Bond Board, Rochdale

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Wow…thank you so much for the reply and apologies for the late response. I was surprised to see so little about review/appeal rights, but as you point out, options are limited. The issue has largely been resolved however, a reconsideration request has been submitted asking for them to make a reasonable adjustment in terms of the software training funding they are paying for (currently 4 x 3 hour sessions). The adjustment would be to re-quote and pay the additional costs of this training being broken down into 8 sessions due to not being able to sit or concentrate for 3 hours at a time. Medical evidence support this. It will be interesting to see what they come back with. I have also challenged some of the items being ‘reasonable adjustments’ for small charity to provide-nothing ventured, nothing gained, but the employer is willing to provide what has been recommended for the main part in any event.
Thanks again. I will post the outcome of the review.

Mike Hughes
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No problem. Look forward to it.

ClairemHodgson
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AEastwood - 25 April 2017 02:02 PM

I have also challenged some of the items being ‘reasonable adjustments’ for small charity to provide-nothing ventured, nothing gained, but the employer is willing to provide what has been recommended for the main part in any event.

reasonable adjustments are to be made by small employers as well as large…....

of course, what is reasonable may change with circs/size of employer/resources etc but the stuff you’ve mentioned shouldn’t be beyond the resources of someone who wants to employ someone else….

AEastwood
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The Bond Board, Rochdale

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Got the decision today…success! They have agreed to fund the items I argued were beyond reasoanable adjustments for a small charity to provide. The mouse recommended on the WPA report costs in excess of £200. They have now agreed to fund that, plus the portable desk for working in bed, the leg rest and momory foam arm pads for the chair…(they had already agreed to fund the chair minus the arm pads). This leaves the employer to buy the keyboard, footrest, wrist support, laptop and stand which, in my view, are standard items so I didn’t include them on the MR.
The decision states they agree that it is not reasonable for the employer to provide the items listed above on the basis it is a small charity with 15 employees and funding is limited. It also states they have taken into account that the employer has agreed to make various other reasonable adjustments and that only some of the items were being disputed.
They failed to address the issue of breaking down the training into small sessions and the potential for this creating additional costs on the MR decision. I have rung them and they say they will fund the additional costs, if there are any, once a new quote has been obtained by the employer.
Wasn’t expecting this result….always worth a go.

Mike Hughes
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Interesting.

I always view such things through the prism that this is a scheme meant to be helping people into work and then keeping them there. In reality, it’s a semi-privatised bureaucratic nightmare and then people wonder why there’s a disability employment gap it doesn’t appear to be helping with.