The Government considers itself to be above the law

The Government says that Atos offices are totally accessible and very fair…

…but then this Government says an awful lot that’s utter twaddle, as we know only too well. For example, despite the Tory claim that the Work Capability Assessment has been “refined and improved” we note with bitter disappointment that the recommendations of the former Harrington reviews have not been implemented at all. The struggle against a grossly unfair assessment process continues, and this is despite the ruling of a recent judiciary review, also ignored by the authoritarians in Office. (Please see appendix for the FOI response regarding a Request for Internal Review.)

The Department of Work and Pensions (DWP) are surely in contempt of court – because they have not amended their policies on mental health and the Work Capability Assessment (WCA), despite the judicial review and subsequent upper tribunal decision regarding the application of the Equality Act. Permission was granted to bring a claim for judicial review earlier this year (May) against the Secretary of State for Work and Pensions to challenge the operation of the WCA. In granting permission the judge stated:

“I consider that it is reasonably arguable that the reasonable adjustments required by the Equality Act 2010 include the early obtaining of independent medical evidence where the documents submitted with the claim show that the claimant suffers from mental health problems and that this has not been done, or at least not done on a sufficiently widespread basis”.

The WCA is grossly unfair on many levels, but this judicial review focussed on one specific issue – that of gathering supporting evidence. Under the current system, no matter how ill you may be, you are responsible for pro-actively gathering your own medical evidence and sending it to the DWP. If you fail to do this, it simply won’t be looked at.

It is unreasonable to expect people with mental health problems, learning disabilities or autism to be able to navigate the often complex processes in being assessed and getting the evidence to ensure this is done fairly and properly. The judges rightly ruled that the DWP had not done enough to make sure this crucial evidence was collected and taken into account, and therefore had failed in its duties to make reasonable adjustments under the Equality Act 2010.

The court held that the WCA process disadvantages people with mental health problems because they have greater difficulty than others in explaining to the Atos assessor how their condition affects their fitness to work. The solution is for Atos and the DWP to seek evidence from the claimant’s doctors and others in the community that know what they can do. But the DWP have consistently refused to take this step.

A three-judge upper tribunal panel ruled that the DWP had failed to make reasonable adjustments under Labour’s Equality Act, and it was a landmark ruling, hailed as a significant victory by mental health charities.

The ruling was triggered by the judicial review and launched by two individuals with mental health problems, who argued that WCA was unfair to them because it required them to understand and be able to explain the nature of their condition to the people conducting the assessment, when they had insufficient awareness of their difficulties to do so.

The discussion focused on whether it was reasonable to expect people with mental health problems to seek additional medical evidence in support of their claims from their GPs, or whether the DWP needed to do more on their behalf to ensure that this sort of evidence was collected and taken into account.

Paul Jenkins, CEO of Rethink Mental Illness, said: “This ruling proves once and for all that this cruel and unfair process is unlawful. The judges have independently confirmed what our members have been saying – the system is discriminating against some of the most ill and vulnerable people in our society, the very people it is meant to support”.

“The work capability assessment process is deeply unfair for people with a mental illness – it’s like asking someone in a wheelchair to walk to the assessment centre”.

Directors of charities that backed the case welcomed the judgement, and called on the Government to stop assessing people’s fitness for work under the current system until the issue was resolved.

Natalie Lieven QC, acting for the two anonymous claimants, said it was now a matter of urgency for the DWP to take steps to improve the process for people with mental health problems.

The claimants’ solicitor, Ravi Low-Beer, of the Public Law Project, said: “Today’s ruling confirms what disabled people have been saying for years – although ignored by Tory ministers – that the work capability assessment process is not fit for purpose.

It is in everyone’s interests that the DWP changes course. If they continue to rush people with mental health disabilities through the process as it stands, more ill people will be wrongly refused support, more ill people will suffer a deterioration in their mental health as they try to navigate the appeal system, and more public money will be wasted”.

However, the DWP said it would appeal against the ruling, and stated it did not intend to halt the assessment process.

DWP have further stated – “at this stage and in this judgement, the Upper Tribunal has not found the Department to be in breach of the duties placed on it by the Equality Act. They have asked the Department for further evidence to help determine whether any reasonable adjustments could be made”.

OH YES THEY DID find the Department in breach of the Equality Act. It was found that the WCA actively discriminates against people with mental illness.

The ruling has officially confirmed what many of us knew anyway: that the Government’s current WCA system is about cutting benefits, irrespective of the human cost, to meet their target of callously paring back the Welfare State to set up a Market State in which you either work or get little or nothing.

Whistle-blowers have bravely emerged, such as the Atos doctor, who has been publicly calling the WCA tests “cruel” and the evidence recently given to the Scottish Parliament by an ex-Atos nurse, Joyce Drummond also strongly supports the call to scrap the WCA. Positive changes are  happening at last, and none too soon. But we know that we have an authoritarian Government that has refused to implement the Harrington review recommendations, and is now refusing to abide by a court ruling.

Recently, BBC Wales reported along with others that GPs have been instructed not to write letters to support their patient’s benefit appeals. The Bro Taf local medical committee, representing GPs, says “writing letters stops doctors seeing ill patients” amounting to an “abuse of resources”.

Clearly, if these patients are ill enough to be making a claim for out of work subsistence level and life-line benefits then they are most likely to be some of the most unwell people attending surgeries.

Other GPs are demanding between £25 and £130 for the paperwork to support appeals, Citizens Advice found.

Chief executive Gillian Guy said: “Charging sick and disabled people more than £100 for medical evidence beggars belief. This process is clearly failing”.

A lack of doctor’s evidence makes it harder for people to appeal and many end up losing their benefits.

Yet DWP ministers have had the cheek to blame the staggering 43% Employment and Support Allowance (ESA) appeal rate on claimants not requesting and submitting enough medical evidence. Mark Hoban claims:

“What’s happening too often is people are suggesting to claimants ‘oh, just leave the medical evidence until the appeal’ – there’s a shared responsibility here”.

Atos is expected to request evidence from a claimant’s doctor when the claimant is likely to be placed in the Support Group. In theory. The reality is that it rarely happens in practice. For the year up to October 2012, Atos only requested such evidence (using the ESA113 form) in 27.2% of all ESA referrals; 23.8% of these were not returned by GPs.

The House of Commons overturned a recommendation by the House of Lords that supporting evidence be sought in all ESA cases.

The hearsay and snap-shot, tick-box opinion of Atos is based on a one-off set of observations. A GP or consultant can give their expert opinion – their knowledge is based on years of medical training, experience of treating patients in general and experience of treating you in particular. They have the results of multiple examinations and consultations spread over months, not minutes. They have the results of what happens when a particular medicine is given or therapy is tried.

And we know from collectively shared experiences that the reports by Atos assessors are widely known to be inaccurate with omissions, unfounded claims and incorrect recordings.

The British Medical Association said: “We have GPs across the country whose workload is ultimately increasing because of the fundamentally flawed work capability assessment”.

The Opposition have called for the WCA to be scrapped, and have pointed out that the grave health implications to those British citizens left abandoned by the Government when they are most in need of help, and with such high costs to the taxpayer to manage the assessment and appeal process, the Coalition must find a fair, safe and common sense approach to sickness and disability benefits.

We know the Government has set targets to minimise the number of people that can be found incapable of work by Atos. The DWP and Atos Healthcare both gave firm rebuttals to this allegation last year to both Panorama and Dispatches, which aired programs looking into the same issue of sickness benefit. The employment minister then, Chris Grayling, told the BBC that “there are no targets anywhere in the system” – although the Government refused to allow the broadcaster to see the full contract it holds with Atos.

But both programs uncovered a system in which assessors would be put on “targeted audit” if they were found to put too many people into the “support group” of ESA, with Dispatches uncovering that only about 12-13% of people should be found unable to do any work at all. Steve Bick, the doctor working undercover in Atos for Dispatches, said that of the eight cases he dealt with before resigning, he was asked by Atos hierarchy to review his decision on four of them. Steve Bicks told us that Atos currently pass 7 out of 8 of us as “fit for work”, regardless of how ill or disabled we are.

It is very reasonable to expect that the Government suspends its relentless reassessment of an average of 11,000 sickness benefit claimants every week until practical changes can be made to the assessment process that protect sick and disabled. The Government also have a legal obligation to do so.

But they have not stopped, they have not listened and they have not been reasonable.

Ever felt like your Government is really out to get you?

Courtesy of kittysjones

Appendix

Freedom of Information Act - Request for Internal Review

Our Reference: IR 519 Thank you for your email dated 14 June 2013 requesting a review of the Department for Work and Pensions (DWP) response dated 13th June, reference FoI 2412.

In your email you asked to be provided with information answering the following questions:-

‘I am writing to request an internal review of Department for Work and Pensions’s handling of my FOI request ‘Judicial Review- Equality Act’.

I request a copy of the DWP guidance or internal memos which detail the revised procedures to be followed following the court ruling and directions .. If you have not made any such revisions to the procedures please could you say so.’ Please be assured that your request has been given our full consideration and that all aspects of your review were taken fully into account.

The review was conducted by an independent official of the Department, of the relevant grade and authority to carry out such requests. The case has been examined afresh, and guidance has been sought from domain experts to ensure all factors were taken fully into account.

The internal review has determined that the response (FoI 2412) dated 13 June 2013 explained that:

‘at this stage and in this judgement, the Upper Tribunal has not found the Department to be in breach of the duties placed on it by the Equality act. They have asked the Department for further evidence to help determine whether any reasonable adjustments could be made.

As such, individuals should continue to apply for Employment and Support Allowance and undergo Work Capability Assessments in the normal way. Those currently on Incapacity Benefit will be reassessed as planned. Therefore revised guidance regarding the assessment of claimants with mental health problems has not been produced and will not be issued to Atos Healthcare at this stage.’

I therefore find that the original response dated 13 June 2013 was correct and that all the information that the DWP are able to supply to you has been supplied.

If you have any queries about this letter please contact me quoting the reference number above. Yours sincerely,

Business Management Team Health & Disability Assessments (Operations)

Many thanks to Robert Livingstone for his pictorial brilliance.