Campaign to encourage GP’s to say no

This came up at the Disability Benefits Consortium meeting 7/8/13 and Donna O’Brien of Parkinsons Society or others may be putting forward a Parliamentary Question on it.

It has been a chronic problem for decades that rises and falls in prominence. Many years ago there was a list of all the regs, eg NHS regs, under which GPs etc had to provide various reports for various things, not just benefit claims. Nick Hodgkinson from Bradford Health and Benefits project may have done this if I remember right. Anyone still have such a list?

As the First-tier Tribunal has an inquisitorial function it is always open to claimant to ask for an adjournment for Tribunal to commission the necessary medical report.  That would gum up the works for sure – and I’d like to hear if anyone knows how successful that tactic is in practice.

Robby - 04 September 2013 02:08 PM

As the First-tier Tribunal has an inquisitorial function it is always open to claimant to ask for an adjournment for Tribunal to commission the necessary medical report.  That would gum up the works for sure – and I’d like to hear if anyone knows how successful that tactic is in practice.

This is certainly a tactic we will consider using if required. However HMCTS will normally send a standard questinairre similar to the ESA113 sent be DWP so it is unlikely to gather evidence specific to the client or relevant to the WCA criteria because the questions are so general. It would be interesting to see if a tribunal judge will direct that a GP responds to a claimant specific letter drafted by a representative (i.e if rep. has already written to GP but there is a fee which cannot be met).

I forsee some interesteing litigation on the question of obtaining evidence, right to a fair hearing, equality of arms, application of the tribunal Rules and Human Rights provisions.

Pulse 30.09.2013
‘Q & A: Sickness & disability benefits’
“This article aims to answer GPs’ common questions about benefits – the process of benefits being paid to patients, eligibility, and where GPs’ duty to help patients access benefits begins and ends.”

http://www.pulsetoday.co.uk/your-practice/qa-sickness-and-disability-benefits/20004489.article

Curious to know the latest on this, I looked at the pulsetoday site - most recent article is http://www.pulsetoday.co.uk/home/finance-and-practice-life-news/benefit-request-refusal-letters-are-proving-valuable-for-local-gps-says-lmc/1/20004687.article?&PageNo=3&SortOrder=dateadded&PageSize=10#comments

- attended by some vituperative anti-claimant rhetoric in the comments (‘sea of malingerers’ and the inevitable booze, fags and plasma screens)

The problem remains - worse now that Mandatory Recon pushes the onus on to the claimant to produce more evidence or face an (eventual) regurgitation of the original decision.

Confrontation with GPs seems pointless as it will only aggravate the already-hostile and alienate those who have some sympathy. I’m trying to think of something that will achieve a more, erm, collegiate approach, perhaps where GPs and advisers take the problem to the DWP rather than fighting one another. Any thoughts?

This group of GPs are on the case

‘Deep End Report 21 - GP experience of welfare reform in very deprived areas’
Oct 2013
http://www.gla.ac.uk/media/media_296141_en.pdf

“The entire ESA application process is too long and complicated. Many people, but particularly those with mental health problems, addictions, and cognitive impairment, find the process of form-filling, assessment, rejection, then the appeals process, punctuated by meetings with welfare officers, lawyers and the need for further medical evidence, to be confusing and demanding to navigate and, ultimately, damaging to their health.”

Thank you. Helpful and thought-provoking.

Sketch for a joint adviser/GP approach - any thoughts?

Principles
• Advisers recognise the burden of work placed upon GPs by additional requests for fit notes and would never make any request not forced upon us by DWP rules

• We stress that at no time do we ask GPs to give an opinion of a claimant’s condition that is contrary to their true professional opinion – nor do we ever advise clients to claim benefits to which they are not entitled

• There is a burden upon claimants too – of DWP bureaucracy and frequent financial hardship

• Advisers and GPs should work together to press for changes to the system in which the opinions of GPs are given more weight in benefits decisions

Outline of problems

• The Work Capability Assessment is a problem for both claimants and GPs – it is restrictive and esoteric in its approach to ‘fitness for work’ and
it addresses matters that are not covered by the usual purpose of ‘fit notes’

• The WCA is too frequently misapplied by Atos, and complaints of inaccurate recording of facts or omission of relevant statements by claimants are all too common

• The DWP is overly reliant on Atos reports and challenges them too infrequently, even when they contain clearly contradictory statements

• The appeals system demands that in order to be paid Employment and Support Allowance pending a hearing,  a claimant must have a current ‘fit note’ – benefit is stopped entirely without one and many claimants have no other income or resources

• The new Mandatory Reconsideration scheme means that even those who are recognised as unfit for work by their GPs are forced to claim Jobseeker’s Allowance, the principle of which is that the claimant must be fit for work

• There are going to be cases in which claimants are refused both ESA (found fit for work via Atos examination) and JSA (regarded as too ill to work by Jobcentre Plus)

Suggestions
• Advisers and GPs work together to press that the DWP accepts a GP’s opinion (where that GP knows the client and his/her condition) over and above that of the ‘snapshot’ assessment by Atos or any other organisation, pending the ruling of a Tribunal, including during the period of Mandatory Reconsideration, and pays at least the Assessment Rate of ESA where the GP finds the claimant unfit for work

• DWP should respect the duration set on a fit note by a GP, and should not demand new evidence after three months (or any other period) where the GP has set a longer period

• DWP should question Atos reports far more frequently, where there are clear problems with that report

• In cases where the dispute over fitness for work has a reasonable chance of success, DWP should either:

accept GP fit notes where they are current during Mandatory Reconsideration or appeal – or –

seek updated information from GPs directly in all cases and pay the appropriate fee

• That the DWP pays more attention, right from the original claim stage, to GPs’ opinions, and to Regulations 29 and 35 of the ESA Regulations, assessing work capability in a more rounded way  

• The WCA be scrapped and replaced with a more common-sense approach to fitness for work, and that greater weight be given to GPs’ opinions where they know their patient

• Advisers and GPs work together on this and other matters – including advisers being available in surgeries on a widespread basis