Info for Work and Pensions Committee on disability and health assessments

Improve assessments by believing claimants and not making negative inferences based on level of medication or involvement of secondary services without asking claimant about it first.

Get access to NHS records, rather than asking GPs to provide generic and often lacking information.
Or, at the very least:
Reformat the letters that are sent to GPs to clarify what information is needed - for instance by telling them on what basis the claimant thinks s/he’s entitled to PIP/ESA etc - so the doctor can at least confirm whether there is any medical basis for the claims.

In order then:

- As per previous comments the training for HCPs simply does not reflect the law/case law as it stands. Inferences are repeatedly drawn re: level of meds; level of engagement; snapshot of claimant on the day which are ludicrously easy to refute but simply should not need to be refuted in the first place. I’m sure there are millions of examples but let’s go with my evergreen favourites:

“Claimant made good eye contact” - claimant was sight-impaired and either had zero vision or was being polite by facing the direction the voice was coming from. 

“Claimant was able to hold a conversation with me the HCP and thus is able to socially engage - mixing is not engaging. Chatting is not engaging.

I do not agree that bringing assessments in house solves any of the real issues with assessments. Decades of solid evidence that in-house was not appreciably better. The issue is far more nuanced than a simplistic “don’t use private companies”.

- Claimants are not supported to appeal by DWP at all. Both call centres and DWP DMs conspicuously fail to advise on appeal rights. Where they do advise of appeal rights they do so in startling non-neutral terms. DWP guidance on appealing is not entirely relevant when they are gate-keeping the appeal process in the first place.

- DWP gatekeeping; poor social media reporting of the appeal process as an ordeal in all cases rather than a significant minority; basic accessibility. Try talking to someone with sensory loss or poor mental health about an SSCS1 form. The online version does not change this.

Information from HMCTS is dreadful. It is simplistic and unrepresentative of the real experience and often hopelessly out of touch with any of the very basic issues which impact claimants i.e. what is good evidence? Can I send it in? Is it too late to send it in? Will the DWP see it? Also hopelessly bereft on the possibility of a pre hearing offer. The nature of the offers and the refusal to adhere to revised guidance is an oft told tale in itself.

- the timings are massively variable which is an issue in itself but there is also a flaw in the failure to explain why some delays occur e.g. if you send in 400 pages of medical history then that complicates and slows your case rather than wins it in most cases. Many people have no financial issues at all. Where they do occur they are often very bad indeed and the information available from DWP and HMCTS about possible options to alleviate that is dismal to non-existent.

- the MR stage is simply an unnecessary barrier. It has never worked as allegedly intended and that continues to be the case. Statistically outcomes are essentially random. Claimants and reps. often pour hours if not weeks into MRs where stuff which a tribunal is undoubtedly going to award is routinely ignored in favour of decision determined by case law principles often decades out of date. MR simply needs to be removed as a concept. The pre MR position at least gave the option of review or appeal.

- lapsed appeals are explained, at best, by DWP and HMCTS in language which is incomprehensible to most claimants. Even a clear win is likely to create a festering sense of injustice because of this basic failing. It is often the case that cases are lapsed using information that was available and obvious within the original claim/assessment part of the process or at MR. Lapsed appeals rarely turn on new evidence provided for the first time at the appeal stage. They are more a consequence of a dilligent PO refusing to defend the indefensible. The better question here is why that dilligence does not apply at an earlier stage. See above points.

- DWP have spent most of my working life arguing that appeals tend to win because something new or something they were not fully aware of or clear about was presented for the first time at appeal. Just imagine me swearing at this point. This is disingenious, specious, dismissive, arrogant, ill-informed nonsense. Very few appeals have ever been won on that basis. More that pre-existing evidence has been given it’s correct weight either by the claimant, representative or tribunal. I think we all know what it says about the decision making process.

DWP continue to distort the stats. to suggest that the proportion of people who appeal and are successful is incredibly low. This narrative needs to be changed and I wish that we would actively challenge what is in effect a misuse of the stats. via the ONS. No account taken of successful MRs; offers; further appeals; lapses etc. All not helped by the dinosaur which is HMCTS and their basic inability to keep basic stats.

- yes, DWP could easily replicate and better tribunal decision making by being up to speed with case law developments; being aware of the sheer stupidity of some of their key approaches e.g. low meds; no engagement equaling low need etc. It’s not about cost. It’s about significant cultural change and political will. We often hear on the quiet from DMs about how the department obliges them to accept the evidence of the HCP because they employed them and they’re independent etc. This leads to comic outcomes. I’ve had a case where the HCP insisted the claimant was female not male even after a complaint from the male claimant. It wasn’t a case in which gender was at issue but the DM literally saw nothing wrong with the credibility of the report in consequence of that. 

I shall paraphrase a colleague. “Is there something fundamentally wrong with believing a claimant on stuff which is obviously true”.

I for one am bored representing people who are registered sight-impaired where both a HCP conclude that the claimant has nothing wrong with their functional vision for example. DWP tend to portray these as anomalies. Changing the culture here involves finally owning the fact that things like that are the norm.

Can I come? :)

In no particular order.

People win at appeals because, on the whole, they are giving honest and credible accounts about their disabilities which the Tribunal believes where the DWP had disbelieved them as to the extent of their problems (often for bad reasons).

Medical evidence is wonderful, but rarely does more than corroborate or contextualise the claimant’s account. It is not an end in itself.

MR is a waste of time. It rarely serves to clarify issues or improve decision making and usually just provides an opportunity to copy-paste the original decision. Claimants are liable to being misled into putting far too much energy into the MR process and in some cases are misled into thinking that it is the final available avenue of appeal.

Lapsing of appeals is, on the other hand, something which I think has improved substantially. I am not in the majority on this perhaps but I think on the whole it is positive that the DWP are actually approaching appeals with a mindset that they might need to make some concessions. I think that there is a need to consider whether the statutory ‘lapsing’ procedure ought to be revised - it should be possible for a decision to be revised, so that the claimant gets the benefit of the increased award, without necessarily ending their appeal. I think much of the difficulties come about because that rule makes it very difficult to present a concession in a way which doesn’t come across as some sort of deal.

DWP should view Tribunals as learning opportunities. The FtT is the superior decision making body, so its decisions should be respected and should inform DWP practice. If appeals of a certain type are disproportionately being allowed, say, that should influence DWP decision making in that type of case. If a claimant won at a previous FtT, they should be very reluctant to depart from that decision on a future assessment without a substantial change. There is a tendency on the part of the DWP to instead view the Tribunals as a nuisance and to insist on their own decision making processes even if they are completely out of line with the FtT. The idea that appeals are routinely won because the appellant has magic new evidence they have perversely failed to tell anyone about until the morning of their hearing should be consigned to the bin.

DWP should also, on the theme of respect, comply with FtT directions, meet its time limits and stop referring to the FtT as “HMCTS” as though they were just dealing with some other government department.

Your next to last paragraph eloquently outlines something I echo in its entirety. I wish “everybody” understood your third paragraph whether that’s WROs who don’t take cases for lack of medical evidence through to DWP who believe that only medical evidence of a strong variety can displace their own “independent expert” opinion in the shape of a HCP with, what is it currently, 10 days training?

There is also a clear and obvious task for HMCTS to ensure that DMs don’t just get decisions to implement but get decisions which are explained to the extent they prevent the many genuinely distressing delays introduced by DWP applying for an SOR mostly to merely understand a decision.

My thoughts on this are in the attached file.

Good luck, Daphne! Give them hell!

I meant to add a sentence answering the question “how do claimants cope financially” during the MR and appeal delays. The answer is by borrowing, from friends and family as well as credit cards, and by simply forgoing things, including the most basic rights such as going out of your own home

As discussed yesterday, could you also highlight that people over State Pension age are being routinely told that they can’t have a WCA as they’re not expected to look for work, despite the fact that the government are forcing them to claim Universal Credit when in mixed-age couples please?

I’d tend to endorse everything that’s been said so far by others.

I think that Paul raises a good point when he says: “gathering information from the Job Centre staff who actually know the individual claimants”. I’m sure we’ve all had cases of a client telling us “my work coach told me I’m not fit for work so should apply for the sick but the DWP said I was fit for work!”. So why don’t DMs call up the relevant work coach and ask them what they think? Especially for WCAs surely the work coach is well placed to have an opinion on what the work capability of the individual in question is! Work Coaches are, of course, very variable in how good they are but it seems mad that they’re totally cut out when they’re the people within the DWP who probably have the most sustained contact with claimants.

Elliot raises a very good point about lapsed appeals and I guess I join him in the minority of people who think the DWPs approach to this has improved. But I do think that the statutory footing needs to be improved. If a appeals officer is minded to concede the whole thing then by all means the current process is fine, lets just the end the appeal and move on. But where the DWP are minded to make a concession on part of an appeal there should be a way for them to do so, get the money in payment but without then ending the appeal so the client has to re-appeal.

I think the other thing I’d echo quite strongly from the general responses is that firstly most of my appeals aren’t won on the back of some magical extra evidence, it does often help, but its rarely decisive. It tends to take a good case that I’m confident we’ll win up to a rock solid case that I’m almost sure we’ll win in most cases. The main determining factor is instead that the Tribunal always seem to start from the point of believing the client wanting to hear from them in detail the problems they have and have a willingness to spend time listening and probing around that. Tribunals obviously may change their opinion and start disbelieving the client but that will be on the basis of what the client tells them and what the evidence says not just because an ingrained disbelief of clients which appears to prevail in HCPs and DMs.

Which leads into my second thought which is that the DWP need to, somehow, move away from this culturally ingrained sense that most claimants are on the take. I’ve dealt with a lot of clients at this point and I can only think of a handful where I ended up being fairly convinced that they were up to something. One of the single most common refrains I get from clients is “I don’t want to be claiming benefits, I want to get back to work”. The DWP don’t need to beat people to get them out there seeking work. They don’t need to have an adversarial and distrustful approach to people claiming disability benefits. Most people want to get themselves back to work (including some who really shouldn’t be doing any work) and most people only claim benefits they think they’re entitled to.  Of course there will be some that do take the mick but the DWP already have processes for dealing with fraud, they don’t need to build the entire decision making apparatus around it!

You fix this ingrained culture of distrust a lot of the issues we describe naturally fall away.

I’m a little wary on the work coach side of things as that works both ways. Work coaches are often clueless about whether someone might have LCWRA or qualify for PIP and their informed opinion boils down to little more than finding the client a pain in the arse to deal with or feeling sorry for them. Conversely I have dealt with work coaches whose views on clearly badly disabled claimants amount to them being an unprintable skiver.

I’d much rather rely on clear medical or anecdotal evidence than internal opinions from people who ought to be qualified to comment but in reality often are not. I’m not saying there are not great work coaches as there clearly are. However…

I have always seen mandatory reconsideration as just a means of discouraging claimants from submitting an appeal.  The Upper Tribunal came close to the same conclusion when the 3JP held in R(CJ) and SG v SSWP (ESA) [2018] AACR 5

The justification for mandatory reconsideration

24. The term “mandatory reconsideration” does not appear in the legislation. It is an expression used by the Secretary of State to describe the process of reconsideration of an original decision on entitlement and amount of benefit. The restriction introduced by the Welfare Reform Act 2012 is, as we have already noted, that the right of appeal to the F-tT against a decision arises “only if the Secretary of State has considered whether to revise the decision under section 9” (section 12(3A) of the 1998 Act as amended, emphasis added). As the Secretary of State submitted to us in his skeleton argument, the broad purpose of the relevant provisions was to enable the Secretary of State to have “the first opportunity to consider the correctness of the decision, including any new material which is often submitted on an appeal, and thereby prevent the need for the case to progress to appeal”.

A short digression: we have been here before

25. The MR requirement introduced by the Welfare Reform Act 2012 and the accompanying secondary amending legislation is not the first time that a compulsory review stage has been interposed in the statutory appeals machinery for social security claims. In the 1990s earlier legislation (since repealed by the 1998 Act) required claimants to seek a review before being able to appeal a decision relating to attendance allowance (AA), disability living allowance (DLA) and the now-abolished disability working allowance (DWA). In that context Professor Roy Sainsbury commented as follows in his chapter entitled “Internal Reviews and the Weakening of Social Security Claimants’ Rights of Appeal” in Administrative Law and Government Action (eds. G. Richardson and H. Genn, Clarendon Press, Oxford, 1994, at pp.294-5, footnotes omitted):

“The appeal system for [AA, DLA and DWA] is far closer to the mainstream model than either housing benefit or the social fund. Its one important point of departure is the introduction of the mandatory internal review stage before an appeal to a tribunal may be lodged.

In contrast to the rationale presented for the introduction of social fund reviews, the justification for the arrangements for the new disability benefits appears limited to their relative speed. In the DSS paper on the adjudication arrangements for the new disability benefits, the government proposed ‘to introduce a streamlined review system as a second tier of adjudication.’ The only difference between this ‘streamlined’ system and the mainstream adjudication system was to make the internal review a formal stage which claimants must complete prior to a tribunal hearing. It was justified in the following way: ‘The advantage of adding this formal review stage is that decisions will be looked at, and changed if they are wrong, very much more quickly than would be possible if the claimant appealed against the first decision straight to a Social Security Appeal Tribunal.’ Behind the rhetoric of ‘streamlining’, the argument that the new arrangements would be quicker is disingenuous. The mainstream adjudication model, with direct access to a tribunal, still allows DSS adjudication officers to review and change decisions if they are wrong…. The new structure does not in itself guarantee quicker decisions but requires the dissatisfied claimant to appeal twice before receiving an independent hearing.”

26. We would echo Professor Sainsbury’s scepticism on assertions that streamlining and a mandatory review have real advantages in avoiding unnecessary appeals that have merit. This is because under the 1998 Act (and indeed under the previous statutory scheme) it has always been, and remains, the case that the Secretary of State could (and often did) treat the appeal as an application for revision and revise the decision before it reached the F-tT. Moreover, the experience of two members of this three-judge panel from many years of sitting in the First-tier Tribunal (and its predecessors) was that revision decisions taken after an appeal had been made did not cause any significant administrative problem for tribunals.

Nothing much has changed with MRs and I still see no reason to make anything more than a minimal effort at that stage and I build my arguments at the appeal stage

I’d adopt most of the above, and ideally would like to see a move to more narrative reports by health assessors with the application of those findings into descriptors left to a decision maker. And ban any phrases like ‘we know work is good for most people’, ‘you have shown a good range of abilities’, ‘severe functional impairment’, and so on in decisions. Even if it shouldn’t affect the outcome, it introduces an appearance of bias.

Thanks very much everyone- just prepping now but will keep an eye on here up till tomorrow morning so any more comments welcome. I’ll do my best to get across as much as I can - apologies for anything I don’t get in.

Hopefully I’m not too late to join the party! On the whole I echo comments previously. My ‘specialism’ (although I’m not as expert as some on here) is PIP. I support people with learning disabilities and / or autism to appeal decisions. Without this support, many of the people we support would be far worse off financially and potentially in dire straights. Whilst the DWP always state the right of appeal, to people who struggle to read and write, who struggle to speak or understand information or concentrate for any length of time, this is meaningless.

In my experience, MRs have actually been quite successful. I might be coming at it from a different angle from others though as in my experience the people our charity supports have a lot of evidence to support their diagnosis eg Care Act Assessments, GP letters etc. I have recently completed a secondment with Citizens Advice, and found MRs were far less successful due to the lack of evidence. On saying that, the evidence provided at MR stage is more often than not, what was submitted at the initial application stage which indicates issues with the assessment process.

I for one feel assessments are too simplified. I appreciate there needs to be thresholds and criteria but as others have said, making such life changing decisions on the back of an hour’s conversation (on the phone) is soul destroying. Many people I support with autism experience mental health issues but don’t want to take meds. Because of this, their mental health issues is dismissed by assessors. I feel training for assessors needs to be improved so they have better understanding of issues associated with some of the ‘common’ (if there is such a thing), conditions they encounter. I find it quite soul destroying that I have to constantly battle for people who are severely impacted by disability such as downs syndrome to be eligible for the financial support they need. I have on many occasions been to tribunal in such cases where ESA has been refused or PIP refused. The system as is, simply does not work. I agree with other comments that assessors seem to believe people are ‘on the take,’ and this clouds their judgement somewhat.

The length of time taken to get to appeal / tribunal only adds to the stress and anxiety for claimants. I have supported some people through this process who have disclosed suicidal ideation because of the stress. It is laughable that the DWP push for such strict deadlines from claimants in terms of returning forms, but then can take as long as they like to give a decision. Many a time I have chased a MR to find after 6 months it has yet to be allocated to a decision maker and is languishing somewhere awaiting scanning! Not being able to email MRs is also not helpful. Being able to communicate with HMCTS via email makes things far quicker. Finally, in terms of info needed for a MR, I do think the assessor’s report should be sent out as a matter of course. Whilst this is massively overwhelming for people, it is helpful when writing MRs (I think at least). Having to call, go on hold for up to an hour or more and then wait for it to be posted, delays the process further.

As to why tribunals are more successful, in my experience they are far more understanding and sympathetic. Having a person with lived experience might help in this regard. They obviously have far more time to prepare and far more information from the start. I don’t know what training tribunal panels have, but maybe lessons could be learned from this for assessor training.

The amount of public money that is wasted at having to go through the tribunal / appeal process is unreal. Surely, it would be better use of public money to invest in making the start of the process fit for purpose thereby reducing the numbers of appeals /tribunals. Money should also be invested in support agencies to support people to form fill and appeal. At the moment, this type of support seems to be a bit of a postcode lottery. From my experience at CAB, not all local offices offer MR or tribunal support.

Overall, it does feel rather hopeless as these arguments have been made time and time again, yet here we are again on the merri-go-round. When will someone in a position of power actually listen and act?

Not too late - have made notes :)