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Atos & the value of medical evidence
In a response from Atos:
“...ESA assessments are functional, and so very little detail relating to specific diagnses and their treatment is needed, and is in fact of very limited value.”
“....the DWP are very specific regarding the circumstances in which we should obtain any Further Medical Evidence (FME); I would assume that this is due to the fact that it is the role of the Decision Maker (DM) to consider all evidence and request it where necessary. Our evidence makes up part of this evidence considered by the DWP.
The only circumstances in which we would approach a customer’s GP is at the Pre-Board Check (PBC) stage, where a referral is reviewed to see if a face-to-face assessment would be necessary. According to the DWP, we should only request FME from a GP if it is likely information from the GP will allow us to recommend the customer be placed in a Support Group (SG).”
So what does lead to limited capability / disability if it is not the day to day impact of medical conditions? Presumably if medical evidence is of very limited value then so is medical training and WCAs could be conducted by non-medically trained staff. Perhaps the opinions provided by Atos might then be more accurate!
Having recently dealt with an ESA appeal and taking into account the anecdotal experiences posted on Rightsnet, there appears to be an increasing disparity between what the government, ATOS and the DWP say and want when compared to the manner in which Tribunals are dealing with properly argued appeals.
In short, it seems that Tribunals are often less than impressed with the quality of DWP decision making. In the case I had first hand experience with, the Tribunal was pretty dismissive of the DWP’s submissions and the obvious failings of the ESA85 (this was so poor it even contained an obviously cut and pasted reference pointing to the wrong gender). Needless to say, the DWP had relied solely on the ESA85, making no (genuine) effort to obtain or request any other substantive medical evidence. Effectively, the Tribunal started all over again and the appeal was successful, albeit on the techical knockout of Reg 29.
As an aside, the appeal was finally heard more than 14 months after being made.
I can foresee that the disparity between “DWP world” and “Tribunal world” being seen as so different, there may be further regulation limiting the scope of ESA appeals and/or limiting what a Tribunal can take into account. Far fetched? Scare mongering? In my view, nothing is beyond this government and, worse still, I don’t think for one moment it would be substantively different under another colour of government.
For transparency, I had a vested interest in the specific appeal referred to.
We have noted a tendency by tribunals recently to record all of the appropriate points not just those that take the claimant to 15. Presumably in the hope that a score of say 55 points just might get Atos/DWP to consider the case properly next time around.
A judge commented last week when handing over the decision ‘I hope this decision will prevent the DWP harrasing Mr X to attend WCAs in the future and having to attend unnessessary hearings’. The tribunal having placed the claimant in the support group from an original score of 6 points. ‘But we all know that’s unlikely’ ironic smiles all round.
One must assume the provision in the Welfare Reform Bill to require a revision before an appeal (haven’t we been there before?) is a cynical attempt to disuade claimants from pursuing their case and reduce the number of hearings / positive outcomes?
One must assume the provision in the Welfare Reform Bill to require a revision before an appeal (haven’t we been there before?) is a cynical attempt to disuade claimants from pursuing their case and reduce the number of hearings / positive outcomes?
Of that, I don’t think there is a shadow of a doubt. As has been pointed out in other threads where this issue has been discussed, there is no need to remove the immediate right to appeal because the DWP (and LAs) can revise in any case. Even with the current direct right, it is not unknown for the DWP to telehone claimants to try and get the appeal withdrawn (that happened in the case I referred to). Some LAs do similarly and are well known for deliberately seeking “confirmation” from clmts for the appeal to continue (or ask for further evidence) with a statement that if there is no response, an assumption will be made that the appeal has been withdrawn - entirely unlawful. Indeed, in the last case I assisted with (informally), the latter is precisely what a LA said to a LL.
Personally, I am amazed that an officer of the DWP or a LA has not been held in contempt since the TCEA 2007 came into effect (at least not to my knowledge). Until / unless a Tribunal is prepared to grasp that nettle, abuse of process will continue unabated. And, it will get worse with the introduction of the old style “internal review” (reintroduction for HB/CTB).
The whole system is so heavily weighted against genuine claimants, it inherently causes injustice; sometimes massively so. And, frankly, no one in any position to do anything about it seems to care a jot.
We have noted a tendency by tribunals recently to record all of the appropriate points not just those that take the claimant to 15. Presumably in the hope that a score of say 55 points just might get Atos/DWP to consider the case properly next time around.
A judge commented last week when handing over the decision ‘I hope this decision will prevent the DWP harrasing Mr X to attend WCAs in the future and having to attend unnessessary hearings’. The tribunal having placed the claimant in the support group from an original score of 6 points. ‘But we all know that’s unlikely’ ironic smiles all round.
One must assume the provision in the Welfare Reform Bill to require a revision before an appeal (haven’t we been there before?) is a cynical attempt to disuade claimants from pursuing their case and reduce the number of hearings / positive outcomes?
At the risk of being accused of getting on my favourite hobby horse some of this could be solved by giving Tribunals jurisdiction over the length of ESA awards, as they already have with DLA