Fear and loathing in medical assessments - damning Select Committee report

So how does the BBC choose to report the above story then?

Tests claim few benefit claimants ‘unfit to work’ as a headline, followed by the opening sentence of:

Only 7% of people claiming sickness benefits were unable to do any sort of work, new figures have shown.

Isn’t it good to see such an in-depth analysis of the DWP press release? They do finally manage to acknowledge the W&P Committee report at the end, although still seem to be pathologically incapable of making any links between the two aspects of the story, for example, the fact that in relation to appeals, the statistics show that those who were found fit for work, 37% have had an appeal heard by Tribunals Service to date and 39 per cent of those appeals were successful.

Nothing like balanced journalism is there, and this doesn’t feel like balanced journalism to me, quite frankly.

Come across a just published DWP research report that presents a very different picture than that which DWP would like you to see. Apologies for the quick cut and paste, but I’m just about to leave the office. It reveals people unable to pursue claims or appeals, for reasons of health, capacity or sheer frustration, as well as a lack of support and advice to assist them with this process.

RR 762 Unsuccessful Employment and Support Allowance claims – qualitative research

ESA claims closed by Jobcentre Plus, or withdrawn by the customer

Most of the interviewees in this research whose claim had been closed or withdrawn before it was fully assessed said they had ended their ESA claim as their health condition had improved.

Some had proactively withdrawn their claim, informing Jobcentre Plus of this, while others simply stopped submitting medical certificates or did not return their ESA50, in the knowledge this would prompt Jobcentre Plus to close their claim. Nobody interviewed consciously ignored an invite to a WCA as a means of closing their claim.

A smaller number of customers had their claim closed by Jobcentre Plus because they had difficulty completing and returning the ESA50, submitting medical certificates, or attending a WCA, even though they did not really want to end their claim. In some cases, this was because the customer’s condition made co-operating with the assessment process difficult, while in others, other life events, such as bereavement, made it difficult for them to progress their claim.

Views on being found fit for work and appealing this decision

Some of those interviewed strongly disagreed with the decision to find them fit for work, while others accepted this to a greater or lesser degree, agreeing they were now able to work. Not all of those who disagreed with the fit for work decision had appealed.
The research sample excluded those awaiting an appeal outcome. Therefore, these views on appeals come from those who did not appeal, those who had been unsuccessful at appeal, and those who had withdrawn their appeal.

The view that it was ‘pointless’ to appeal was fairly widespread; some felt they were too far away from the threshold set for ESA; others felt ‘powerless in the face of officialdom’; others did not see themselves as the kind of person who would appeal, or felt uncomfortable with appealing in some way.

For some people, their circumstances at the time, including their own ill-health, family illness, bereavement or homelessness, meant that appealing had not been a priority for them.

Some people who had withdrawn their appeal decided they could no longer carry on with it as it entailed several stages and an increasing amount of paperwork.

For some people, ensuring their immediate financial stability was the primary concern in making these decisions. The longer-term implications of moving from ESA to JSA were not always fully considered. Some people were also deterred by a misconception that appealing would leave them without benefit income.

I am left wondering if we can sue ATOS.

My client has had brain damage since a massive haemorrage/coma at the age of 22.
This has left him with a short term memory of 20 minutes.
He doesnt remember me, or my voice, and keeps extensive diaries of daily events so he can record what he has to do.
He has been found capable of work 3 times, and on one occasion he lost his home, because he couldnt remember what he had to do to appeal. (IS stopped, so I presume HB stopped, although we will never know as he doesnt remember).

He is on DLA, so most of my discussions are with his mother, for continuity, and save me going through the whole introduction process again.

Now he has been subjected to the conversion of IS to ESA.

When I first met him I had to ask what his diagnosis was, as he is very articulate. I was shocked when he told me he wouldnt remember coming to the interview with me.
He will only form a memory of me in 6 months time - he says he will get a flash of my face. This is when it becomes a long term memory I suppose. He used to watch the lunchtime episode of neighbours, and then watch the dinner time repeat because he couldnt remember seeing it.

Doctors have studied him, he is so unique.

And yet he scored 6 points. The DM told him he could have got better. Like he could grow a new brain.

I dont think any employer would want to explain to him every 20 minutes what he is meant to be doing.

A complete waste of government resources.

Does anyone think we could get together and put in a super-complaint?

Your client’s case certainly sounds like a good case study to demonstrate how flawed the current WCA process is, Sandy.

Maybe worth contacting Cit A social policy team to see whether they can incorporate into press work at the moment?

Have to admit not knowing what the situation is regards legal challenge of ATOS assessments - you may have seen that both CPAG and Disability Alliance have launched seperate legal challenges of welfare reform proposals, on HB/LHA and DLA/PIP respectively. CPAG’s has been heard but is awaiting a decision, whereas DA’s is still in the initial stages. So maybe also worth discussing with these perhaps?

I can never understand why people will insist on thinking that the high success rate at appeal means that the WCA itself is flawed. It can only show that the decision-making and evidence gathering is flawed, since Tribunals can only apply the WCA to appellants. If the WCA was the problem nobody would win at appeal either.

hbinfopb - 27 July 2011 11:13 AM

Very interesting to see this story on the Daily mail website today.  the coverage is what you would expect - scroungers swinging the lead etc, with a side feature on a fraud case (which is not the same issue).  But if you look at the comments on the article and sort by most highly rated, you will find the Mail has severely misjudged its demographic here.  So I urge those readers - please make the connection: when the Mail serves up the same kind of reporting tomorrow on immigrants or lone parents or whoever else is bringing the country to its knees at that paticular moment, it is just as slanted and misleading as it was today when you recognised yourself as a one of benefits scroungers in the story and got angry.

Well said!

Ariadne - 27 July 2011 04:42 PM

I can never understand why people will insist on thinking that the high success rate at appeal means that the WCA itself is flawed. It can only show that the decision-making and evidence gathering is flawed, since Tribunals can only apply the WCA to appellants. If the WCA was the problem nobody would win at appeal either.

I don’t disagree - but the argument is (or should be) more sophisticated. Using a legally defined set of criteria to assess whether or not a person is ‘fit for work’ or has care or mobility needs is always going to be an exercise of trying to fitting individuals into boxes.

The profusion of case law demonstrates the difficulty of applying the definitions (as opposed to the process of evidence gathering etc) in practice. One must then considers changes to the criteria such as the revised WCA. Do the changes demonstrate that the previous version of the WCA was flawed (because it did not accurately assess capacity - even if properly applied) or is it an exercise in trying to change the definition of limited capability to find more people fit for work. An individuals ‘capability’ will not have changed overnight just because the test has changed.

So the wider policy question must be whether the WCA DLA etc criteria meet the stated policy objective. Both use a proxy test to determine the question. Under the new WCA criteria a significant number of people who meet the previous WCA or PCA criteria may be found ‘fit for work’. Does this mean that in the real world of employment (disregarding the state of the labour market) they are likely to be employed or, with support, become ‘work ready’ in the foreseeable future. Or is the real policy objective simply to cut the benefit bill (a legitimate govt. policy whether one agrees with it or not). In other words the WCA process etc may not in practice do anything much to help individuals into work but by defining them as ‘fit for work’ it does cut the benefit bill. A glorified deeming provision - the WCA says you are fit even though in the real world you are clearly not employable.

The justifications for PIP are arguably the most disingenuous reasoning by Govt. for changes (cuts) to the benefit system yet.

So perhaps saying that the WCA itself (or the proposed PIP criteria) is flawed is just a proxy for saying that the policy is flawed because it will not achieve the stated policy objective.

As advisers we deal with the day to day consequences of policy failure (or spin) as well as flawed processes.

But of course, subject to funding, it is a glorious job creation scheme for welfare rights advisers. Now where is my copy of the Fowler Report? It must have something new to say about benefit reform.

The issue of what part of the WCA is at fault is a really vital one for those of us engaged in lobbying the Government around this. Although I understand Ariadne’s point that it seems to be procedural issues that are the problem not the actual criteria within the assessment, I agree Peter that it’s more complicated than this.

On the face of it, Ariadne is right that successful appeals seem to suggest that someone along the way in the process has failed to do their job properly. The Government often employs a variation of this argument by claiming that most successful appeals are simply on the basis of new evidence. However, there are two points to be made here: the first is that when, for example, someone scores zero on their original assessment and then gets 15 or more at their appeal, even if additional evidence has been presented it suggests a failure of the assessment that it has not picked up on a clearly severe condition. The second point is that you could argue (and Mind does) that the descriptors aren’t able to sufficiently capture information about the applicant and that they drive poor behaviour in assessors, allowing them to only collect sufficient evidence to disallow a claim rather than forcing them to collect all necessary information to make a fair decision. Tribunals seem to be better at making a genuine effort to find out about the applicant’s barriers and impairments but my feeling is that this is despite the descriptors rather than simply a proper implementation of them.

As Peter touched on, another key problem is that being ‘fit for work’ is essentially defined by not achieving 15 points on the WCA. A benefit should be designed with a specific claimant profile in mind (for example, someone who will need x amount more time and support to get back to work because of their disability than a typical jobseeker) and then design a test to accurately identify all those who fit this profile. With this approach, the proximate measure of whether you are eligible might be scoring 15 points but the ultimate measure is whether you fit an agreed profile that should receive this support. With ESA (and the new PIP regs) there is no clearly defined profile and instead the proximate and ultimate measure is whether you meet the scoring threshold. The advantage of this approach for the Government is that they can adjust who is eligible (typically downwards!) without really having to justify the principles and practicalities of what they are doing.

Hopefully Harrington’s first year recommendations on procedural issues will make a difference (shameless plug for DBC survey for advisers on this!: http://www.surveymonkey.com/s/wca_year_one_recs), but there is yet to be a proper debate about what the threshold of eligibility should be for the benefit and how well the assessment is identifying these people. Instead the Government has presented WCA reform as essentially a technical exercise.

Regarding clearly defined profiles:  What I find most frustrating with all this is that at least £150m is spent each year on medicals and appeals, but how much money is spent on intervention in the workplace where it could make a significant difference to the many people leaving wortk through ill-health?

There are many things that the government could do to encourage people who are already in work to stay there. JCP Access to Work funding is mostly restriced to getting people back into new jobs and has historically operated largely under the radar. Much has been done on the health side, e.g. the Mindful Employer mental health initiative (kicked off in Devon), but where is the government message and financial support to (especially small) employers?  Where is the mentoring for people at risk through health problems? It’s not in any provider contract, unless commissioned locally by bodies such as LAs or the NHS.

A system that commenced at the most logical starting point (the workplace) would also reveal those cases where continuation in work was not feasible. A properly funded and resourced adult careers service working with other partners, could also support many other people who really did have to exit their current emplyment. The final group of people who were too ill to work would literally be the so-called support group.

Instead of the above, we are wasting millions of pounds each year on repeatedly assessing people for imaginary jobs and also causing extreme frustration and fear.

Much as I appreciate the arguments about policy objectives and so forth I cannot help but conclude that there is either a lack of skill (or a some sort of prohibition that prevents skilled people using their skills) when it comes to the WCA.

Yesterday I saw a claimant who had been scored zero. He went to an appeal and the Tribunal (very fairly) realised he had no idea what the issues were and adjourned so he could get advice.

I spoke to him for over an hour and it was obvious within the first 30 mins or so that he was suffering from a serious delusional state , he very clearly had delusions of reference, religious delusions and grandiose delusions and this was the reason he had been homeless and living in a van for the last five years.

Any doctor or nurse should, in my view, have picked this up and tried to explore it but it does not seem that this was the case. In my opinion a doctor or a nurse has a moral duty to the patient in front of them and any duty to ATOS or the WCA must come second to that moral duty to act as a responsible clinician and carry out a FULL assessment even if it doesn’t exactly tick all the boxes that ATOS need to have ticked.

Needless to say I am trying to contact this gent’s GP et al in the hope that they can provide evidence etc.