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Anti benefit cuts presentation- help needed
Hi’
I’m doing some work for my local anti-cuts group to make a graphic presentation of the absurdities of what I’m calling the “disability points system” for ESA (Can you think of a better populist name than this?)
Unfortunately I’m mainly a housing benefit expert- so can I ask you for your comments on whether the following assessments are correct and fairly put?
1) For 4 days out of ten you are completely unable to relate to other people or communicate with them because of mental health issues - 0 points
2) From time to time you have uncontrollable episodes of aggressive or wild behaviour that would be unacceptable in any workplace.- 9 points
3) You have a learning disability, and because of this and lack of life experience, is have been subject to exploitation and sexual abuse at work in the past -0 points
4) Can climb 2 steps but no more, even using bannisters and a crutch - 0 points
5) About every 6 weeks you are likely to lose consciousness on the job. -0 points
Can you think of any other example which succinctly highlights the absurdities of the system.
6) You have a terminal diagnoses and have been told you have 12 months to live. At the moment you are comparatively fit, but you cannot lift your hands above your shoulders and cannot lift large light items like cardboard boxes. -18points. You will be able to claim benefit but you will be asked to attend interviews designed to get you fit for work in future.
I’m planning to make the presentation freely available on line when its finished. I’m also doing it as part of my OU university design course, so I hope to offer you something well designed in due course.
Thanks for your help.
Descriptor 15 : getting about :
B : is unable to get to a specified place the claimant id familiar with unless accompanied by another person. - 9 points only
So : If Atos and the DWP accept that this is the only thing wrong with the claimant that they get 9 points, and should therefore be on Jobseekers Allowance.
How can someone be classed as 100% fit and well for work if they cant go anywhere alone. Who the hell will employ them?
These sorts of cases (particularly the last one) highlight the issue with the LCW test quite well. Below are some musings on the LCW test that might be of some help (not really thought through so sorry if wildly wrong).
The test is described in primary legislation as having a limitation on your capacity for work due to a health condition which means “it is not reasonable to require him to work” (section 1(4) WRA 2007).
Section 8(1) provides that the question of whether or not a person’s health poses such limitations that it is not reasonable to require a person to work is to be determined in accordance with regulations.
The regulations set out the familiar points system the other posters have picked some examples from.
What is interesting is that the tone of the examples is as follows: “I cannot believe that anyone could possibly think it was reasonable to expect a person with X limitation to work”.
The legal question is whether the SSWP is permitted to make the regulations he has made: if his description in regulations of when it is reasonable to expect a claimant to work, includes situations where everyone else would say people were found to not have LCW in cases where there was no reasonable way they could work is that permitted by the Act?
The difficulty is that you would need a claimant who definitely gets 9 points and no other points and who had no one to accompany them to work. You could then say: “Look this claimant clearly cannot reasonably work, however the SSWP has made regulations which are supposed to test whether he can or not and the regulations, properly applied, lead to the opposite result. Therefore the SSWP’s regulations go beyond the powers he was given by Parliament in the Act- Parliament intended him to make regulations which were reasonable and he has made ones which are unreasonable (as shown by this case)”
One problem is that I would point out that such a claimant would probably meet the reg 29 exemption though (as could not safely travel to work etc).
It is also, I think, of interest that the ESA caselaw on the descriptors has not paid much attention to section 1(4) and 8: it seems to me that the way in which the regulations should in general be interpreted is by reference to their purpose- ie determining whether it is reasonable to expect someone to work. If decision makers had that test in mind when trying to work out what the regulations meant it could well produce better caselaw from a claimant perspective.
I agree with Martin that the purpose of the WCA—to decide whether you have a limited capability for work, such that it is not reasonable to require you to work—is crucial
- and that the ‘reasonable’ threshold has never been clearly set out for debate
Consider a blind person, no useful vision, understands braille, uses a guide dog -
under current WCA they might score 0 from ‘understanding communication’ (as ability to understand braille taken into account - but does this really relate to help with ‘understanding a message from a stranger’?), and only 9 under ‘navigation’
under IB a person with that level of sight loss was exempt from the PCA, when ESA was introduced in 2008 the descriptors took account of objective level of sight loss and this person would have scored 15 points
So what changed around April 2011 (when WCA revised) so that it was now reasonable to expect this person to be a jobseeker in order to claim benefit?
Thanks for the comments so far. Do please keep them coming. I know its Rightnet and people want to talk about the technical issues. but what I’m really wanting is some clear points that highlight the abusurdity of the system that even lay people can understand
The legal question is whether the SSWP is permitted to make the regulations he has made: if his description in regulations of when it is reasonable to expect a claimant to work, includes situations where everyone else would say people were found to not have LCW in cases where there was no reasonable way they could work is that permitted by the Act?...
It is also, I think, of interest that the ESA caselaw on the descriptors has not paid much attention to section 1(4) and 8: it seems to me that the way in which the regulations should in general be interpreted is by reference to their purpose- ie determining whether it is reasonable to expect someone to work. If decision makers had that test in mind when trying to work out what the regulations meant it could well produce better caselaw from a claimant perspective.
I agree. I have raised this before several tribunals but they appear to misdirect themselves by viewing schedule 2 as effectively a deeming provision. The appeals were won on substantive ICW grounds, so it has been academic, but I think this is the correct way to view schedule 2.
Sorry forgot to say. One of my favourites is the cardboard box test. No size is given in the legislation or the ATOS guidance so we don’t know whether this is a shoe box or a box for a computer printer.
I recently bought a new laser printer and the box was certainly large. It was not very easy to lift and move the empty box at waist height with one arm, but the absurdity of this activity is how many employers recruit people to lift and move large empty cardboard boxes a few feet?
I can see the advert now:
“Wanted. Cardboard box shifters. Hours variable. Must be able to lift and move large empty cardboard boxes at waist height. No other duties required. Good rate of pay”.
“Wanted. Cardboard box shifters. Hours variable. Must be able to lift and move large empty cardboard boxes at waist height. No other duties required. Good rate of pay”.
Wasn’t that one of the old Dept of Employment job descriptions used in Invalidity Benefit ‘fit within limits’ cases? Although ‘egg grader’ and ‘lift attendent’ were always my favourites to look out for in the local paper! You just can’t get the staff these days.
Peter - Are you saying that the egg grading jobs advert went unanswered?
Ian Duncan-Smith is right! People just dont WANT to work!
I am furious that I have to fill my own fuel tank these days.
I always used to wonder about the capabilities needed by the ‘trainee banana ripeners’ advertised for in Barry quite frequently.
I also struggle to think of things other than boxes which might be light enough in their bulkiness to be ‘light but bulky’...
Polystyrene sheets, balsa wood planks, DWP arguments?
I also struggle to think of things other than boxes which might be light enough in their bulkiness to be ‘light but bulky’...
Ballons? The larger helium filled sort sold at fairgrounds etc. But I suppose being a ballon seller isn’t a sedentary job? Ahh - but ballon filler!
I think the then Secretary of state came up with the cardboard box idea after watching the bomb on the milk float episode of Father Ted.
That’s made my day!
Not to mention that Ian duncan Smith makes about as much sense as Father Jack and seems to have the same grasp of things as father dougal.
I’ve been experimenting with the production of educational material about benefits which I think might interest you. I’ve done a prototype on sickness benefits. Some of you were kind enough to comment on on the ideas. I have now developed the material
You can view the material on U tube at http://youtu.be/6D-8rX-6ZhI
As this is a prototype, I’d really appreciate any comments that you have about how the material can be improved. You can either email me back or leave comments on U tube.
If you can add any comments by Saturday 27th April I would really appreciate it.
You are welcome to use the material if you find it useful, but bear in mind that I will be improving it in the light of comments. You can download a powerpoint presentation and a flash video from http://www.authorstream.com/Presentation/hbhelp-1780958-it-makes-you-sick/