Forum Home → Discussion → Work capability issues and ESA → Thread
Mental Health Safeguards thread
Owen, thank you for starting this thread (and your team for the work behind it), it is extremely thought provoking and useful.
Noting Nevip’s post above, how does the duty put upon the DWP also translate to a duty on LAs when suspending HB/CTR claims, e.g. because of an allegation that a claimant with MH issues is not residing at a property, or has an undeclared partner living with him/her?
What procedures should a council follow over and above its standard operating methods when it is known that the claimant has severe/enduring mental illness?
think i’ll ask my partner - a mental health social worker (AMHP) - to have a look at this thread and let me know whether there is anything happening from that end in terms of guidance etc (at least, in her local authority… although she’s starting for a new one on Monday!)
I think it would be helpful to limit this discussion to MH safeguards defined as those responsibilities arising from the bulletin in the first post. The term ‘safeguarding’ can crop up in MH contexts with very different meanings which could muddy the waters. They definitely seem to be worth exploring in another thread though…
Do LAs have any responsibilities under these MH safeguards?
My first response was no because these safeguards arise from a DWP internal bulletin (and exist in good practice and guidance rather than law) that clearly applies to DWP and JCP. We would also argue that it applies to work programme providers and their sub-contractors.
However, as LAs are administering HB on behalf of the DWP its possible that they shoudl be abiding by these safeguards. Depends whether an organisation carrying out work on behalf of another organisation has a responsibility to abide by their guidance and good prctice - I doubt it. I am unaware whether LAs have ever been made aware of these MH safeguards by DWP. LAs may well have their own guidance, commitments, legal responsibilities etc.
What actions need to be taken when implementing MH safeguards?
The bulletin attached to the original post sets out the minimum requirements. There should be evidence of something being done over and above what would have been done for someone without a mental health disability. I don’t think the actions required are easily defined and will depend on the case. If nothing has been done differently to protect the claimant then the DWP should reinstate benefit.
The DWP’s updated Work Programme Provider Guidance is available here:
https://www.gov.uk/government/publications/work-programme-dwp-provider-guidance
Chapter 4b Safeguarding and vulnerability:
6. If either the original PRaP referral, relevant change of circumstances notifications (WP07b) or your own evidence tells you the participant meets the WP definition of vulnerable you must carry out safeguarding activities before you raise a sanction doubt.
7. This means, as a minimum, you must have a face to face discussion to confirm the participant has understood the activities that you have mandated them to do and the consequences of not complying. Face to face includes carrying out a Home Visit if necessary.
15. The official definition of a vulnerable ESA participant is:
“Vulnerable Employment and Support Allowance (ESA) participants are those who have mental health conditions or learning disabilities or conditions affecting communication/cognition”.
Being as this is alive again; with adult safeguarding being placed on a statutory footing now I did an FOI to ask for new guidance being given to JCP/DWP as they are now named as partners in the safeguarding process.
The reply? Nada.
Would safeguarding apply to PIP assessments?
Would safeguarding apply to PIP assessments?
It should, however where PIP is not a subsistence benefit I’d bet my bottom dollar that DWP would refuse to accept that’s the case.
Cheers, Dan
Having read through this thread, I’m not sure if people are still referring to the memos from the original post when dealing with safeguarding issues or something that is more recent?
My client is still on the assessment rate of ESA, is attending a support group for sufferers of depression, and has regular appointments with someone from the DWP, or hired by the DWP, to discuss her progress or lack of. She has been sanctioned once already and is worried that it will happen again. The support group gives her homework to do as part of the treatment process - usually writing notes about feelings etc. My client says that the DWP representative asks to see these notes and says that she will have to sanction her again if she ‘doesn’t have something to write on the computer’.
It doesn’t seem reasonable to me for the DWP rep’ to look at the support group notes. I’d also be grateful for any thoughts on what an ESA claimant should be expected to contribute at their review meetings with the DWP. The client in question is not very forthcoming with information about her health problems but anyone who spoke to her for more than a few minutes should be able to identify significant mental health problems.
As the client is worried that she will be sanctioned again when she has her next DWP meeting, I wanted to give her a letter to take with her to try and avoid unnecessary problems. Again, I’d be grateful for any advice on what to put in this letter. After reading the memos in this thread I was thinking of including a request that the DWP adviser refers to a manager before imposing a sanction, confirms any imposed sanctions in writing (so that I can dispute them quickly), and drawing their attention to mental health safeguards. I’d also like to tell them that they shouldn’t be asking to see the client’s notes from her support group sessions, but would like to reference some sort of DWP guidance or regulations along with this, so if anyone has any suggestions of which ones are best to use, that would be really useful.
Thanks
It sounds like your client could do with an advocate to attend the meetings with her although I appreciate that she may not wish to be accompanied (and any such face to face support obviously depends on available capacity).....it would certainly make the DWP representative think more carefully about how they deal with your client particularly in terms of the fact they are asking to see private notes that essentially form part of her treatment plan - in my opinion such a request is completely unacceptable, if they want evidence of her attendance at the group then presumably her CPN or group organiser can confirm that in writing, under no circumstances should she be pressured into handing over such confidential information.
I would absolutely remind DWP of their duty of care regarding mental health safeguards, they should be exploring other ways your client could meet requirements such as researching online for example into different skills or courses that she might like to do, if support was available. Has your client got a copy of her Action Plan as if there is no reference to her mental health problems (DWP do like a one size fits all form) it should be amended ASAP.
Given that you mention your client is not very forthcoming about her health problems, if the DWP adviser is being met with ‘yes’ and ‘no’ answers then that could potentially explain why they are not being particularly helpful in their approach during interviews…....however that does NOT make it right and it absolutely needs to be challenged.
What should we be expecting from a “safeguarding” visit, in terms of a record of what was assessed or agreed?
We have a client with MH issues, including attempted suicide, but not recently receiving specialist treatment. He has failed to attend 7 out of 9 medical assessment appointments for IB/ESA since 2009. For most/all of the previous ones it seems they’ve accepted good cause, but the latest one is going to appeal. A DWP safeguarding visit was done last year after two failures to attend. The report of the visit is in the appeal bundle, it consists of 4 sentences, two which are just to confirm the claimant’s address and phone number. It says the claimant denies receiving letters, but said there was no reason why he could not attend his next interview. There are no specific references made to any MH issues.
In their reconsideration of the decision under appeal, the safeguarding visit is apparently counting against the claimant:
“despite a safeguard visit been [sic] conducted ... XX advised at the interview that he would attend the next appointment which he has failed to do so.
Consequently I consider I have no grounds for changing the decision ..”
Hi Jon
You’ve hit on two of the (many) weaknesses of DWP safeguarding.
1) The work of our team on safeguards has, until recently, involved coming across cases where benefit has been removed without the procedures being followed properly and then using the safeguards to get benefit reinstated. Whether the process itself actually ‘safeguards’ claimants is another matter.
2) The safeguards for people who fail to attend a WCA are significantly weaker than for other failures. For example, for someone who failed to attend a mandatory interview or take part in WRA with JCP:
- JCP have to attempt a visit to someone at home every time they are considering not accepting good cause from a claimant. Their guidance says this requirement is to protect those claimants with fluctuating conditions. The guidance for people who fail to attend a WCA does not require a visit for every failure and only requires a visit if a claimant has not responded to a request for good cause reasons (even if DWP are minded to go on to reject good cause).
- if JCP are unable to conduct a home visit then they have to notify a third party such as police, social services, psychiatric nurse, of the potential loss of the claimant’s income. The guidance states they have a ‘moral obligation’ to do this.
It could be interesting to look into whether the procedure followed after missing a WCA amounted to discrimination against this client. You could compare and contrast the safeguarding procedures for missing a WCA and the JCP guidance above. I am far from an expert on discrimination law - I don’t know if anyone else in the thread has an opinion on this?
Then for future we would be looking into trying to arrange a home assessment.
Email me if you’d like to discuss this further: firstname.lastname @ royalgreenwich.gov.uk
It could be interesting to look into whether the procedure followed after missing a WCA amounted to discrimination against this client.
I am far from an expert on discrimination law - I don’t know if anyone else in the thread has an opinion on this?
Email me if you’d like to discuss this further: firstname.lastname @ royalgreenwich.gov.uk
I’m no expert but lived experience says that DWP’s receipt of a letter before action greases the wheels of a favourable reconsideration. I have seen a couple of similar cases.
If that report is as paltry as it states there might be something in it.
However it’s probably out of time to pursue under the EQA. There is a 6 month limitation period; if it’s over, or even close to that it’s probably a waste of time pursuing it but if it was relatively recent it might be worth ringing Civil Legal Advice on 0845 345 4 345.
[ Edited: 27 Oct 2015 at 01:16 pm by Dan_Manville ]Thank you both, this is helpful. The safeguarding visit in this case was over a year ago by the way.
Just for the future ref of readers of this thread, this is a link to Owen’s safeguarding article on the CPAG website:
http://www.cpag.org.uk/content/safeguarding-guidance-tool-practitioners