Essential information for ESA claims, assessments and appeals

Written by Kitty S Jones

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Essential Information for claims, assessments and appeals. 

There are three essential ideas to keep in mind when claiming Employment Support Allowance (ESA) because of the nature of the ESA50 form, and the fact that Atos are seeking to deny benefits, and NOT assess disability: this will not be a fair investigation of your health issues.

This information needs to be shared widely so people are made aware of them, and can use them when claiming ESA or appealing.

These very helpful ideas are:

  •  Reliably, repeatedly and safely
  •  Exceptional circumstances – Regulations 25 and 31, 29 and 35
  •  Atos assessments and pitfalls – how they try to deceive you

1. Reliably, repeatedly and safely. 

‘Lord’ Fraud made this statement in the House of Lords:

“It must be possible for all the descriptors to be completed reliably, repeatedly and safely, otherwise the individual is considered unable to complete the activity.”

You might be able to go up three steps once – but if cannot do it “reliably, repeatedly and safely”, in Freud’s own words you CAN NOT do it at all.

Apply the phrase “reliably, repeatedly and safely” all through your ESA50 or appeal form, use it on each of the descriptors. Make sure you state clearly which activities you can not do reliably, repeatedly, safely and in a timely manner, because Atos will otherwise assume you are consistently capable of them all.

2. Exceptional Circumstances – Regulations 25 and 31 for Universal Credit and Regulations 29 and 35 for current and ongoing ESA claims and Contribution-based ESA.

Regulations 25 and 31 will replace the old Special Regulations 29 and 35 from April 2013 for Universal Credit. This is in preparation for the abolishment of income-related ESA only, and not contribution-based ESA.

However, the old Regulations 29 and 35 still apply to ongoing cases that are not yet affected by Universal Credit, and will remain in place indefinitely for all Contribution-based ESA. So there are two sets of Regulations in place for Exceptional Circumstances.

Income-based ESA will be replaced by Universal Credit, as (or if) it is rolled out, but there will be the same additional financial components added as we currently have for ESA – you will be able to claim either the work-related activity or the support component.

The contents of both sets of Regulations are essentially the same. They are applied in the same way. 25 and 29 are for those who are not capable of work, and would usually be placed in the Work-Related Activity Group, and 31 and 35 apply to those not capable of work-related activity, and would normally be placed in the Support Group.

Because of the tick-box nature of the ESA50 form, it is likely that people will fall below the number of points required to be declared incapable of work – it doesn’t take into account variable illnesses, mental illness, or the effects of having more than one illness.

However, the Exceptional Circumstances Regulations may cover us – they both state that the claimant should be found incapable of work (Regulation 29 for ongoing ESA claims, 29 for Universal Credit) or work-related activity (Regulation 35 for ongoing ESA claims, 31 for Universal Credit) if:

  • they have an uncontrolled or uncontrollable illness, or “the claimant suffers from some specific disease or bodily or mental disablement and
  • by reason of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work/work-related activity”.

If you feel this reflects your circumstances, then we suggest adding something like this, where you put “other information” on the ESA50:

“If the scoring from my answers above is insufficient, then I believe applying the Exceptional Circumstances Regulations would be appropriate due to the severity and interaction of my conditions, and my inability to reliably, repeatedly and safely encounter work-related situations and/or safely perform work-related tasks.

I am taking all available and appropriate medication as prescribed by my doctor(s), and there are no reasonable adjustments to a workplace which would mitigate my medical condition(s).

Therefore I believe being placed in the Support Group would be appropriate, because there would be a serious substantial risk to mental and/or physical health if I were placed into a workplace environment or in the work-related activity group.”

You can word it yourself, of course. Please change the wording to fit your situation, delete “mental” or “physical” if appropriate, leave both in if necessary. If your illness cannot be controlled at all, or medication can’t be used to control it, add that instead.

Regulations 29 (for ESA) and 25 (for Universal Credit) cover people who might be put in the Work-Related Activity Group (WRAG), which has work-focused activities, sometimes it has workfare placements, and sanctions may apply, while Regulations 35 (for ESA) and 31 (for Universal Credit) cover people who are not well enough for any kind of work activity. This is for people who might be placed in the Support Group. There are no conditions placed on you for getting your ESA, such as workfare, if you have limited capability for work-related activity.

You can ask your doctor to support you with this claim, as it is stated in the regulations:

“(b) evidence (if any) from any health care professional or a hospital or similar institution, or such part of such evidence as constitutes the most reliable evidence available in the circumstances” may be presented to support your case. 

You can ask for copies of any communication from your consultant to your GP. You can also ask to be copied into any further correspondence between your doctors. 

Here are some links so you can download and print off documents to give to your GP to support your claim or appeal. You ought to submit copies of these to the DWP as soon as you can. (Make sure that you keep a copy).

In some cases, this may mean that your case will be reconsidered in your favour without having to wait for a tribunal hearing.

These templates are for ongoing ESA claims and Contribution-based ESA:

(CLICK)   Cover letter for your GP

(CLICK)   ESA Appeals Letter for your GP

(CLICK)   Legal Advice of Counsel for GPs: Prevention of Avoidable Harm Interpretation and Application of ‘Substantial Risk’ ESA Regulations 29 & 35

With many thanks to the Black Triangle Campaign for these extremely helpful links and templates.

Please remember: Regulations 29 and 35 still apply to all ongoing ESA claims, and will remain in use for contribution-based ESA claims.

Regulations 25 and 31 apply to Universal credit when that is rolled out. If you are one of the few currently claiming Universal Credit in one of the pilot areas, and if you are not eligible for contribution-based ESA, Regulations 25 and 31 apply now. You may amend the print off documents for your GP, as they cite the Regulations most likely to be applicable at the moment.

The full text of the legislation appears at the end of this article (Appendix A).

3. The Atos assessment and what you need to know.

You have a right to ask for your assessment to be recorded. You will need to request this in advance, but it’s worth making sure you use this opportunity to gather evidence on record because in doing so, you make it much more difficult for the Health Care Professional (HCP) to disregard what you tell them and write “inaccuracies” in their assessment report. We would strongly recommend you exercise this right.

It’s also worth knowing that Atos don’t conduct “medical” assessments,  they conduct “disability analysis“. You are not a patient to Atos, you are a “claimant”.

Bear in mind throughout the assessment that your answers to any apparently innocent questions, such as:

  • Do you watch television
  • Do you read
  • Do you use the internet 

These may be translated into phrases for the assessment report such as:

  • Can sit unaided and unsupported for at least half an hour. 
  • Has no problems with concentration and focus
  • Has no visual problems

Assessment starts on the day of your appointment with the HCP reading the form you completed when you applied for benefit. Remember that every single question you are asked is designed to justify ending your claim for ESA and passing you as “fit for work.” That is what Atos are contracted to do by the Government. This is not a genuine medical assessment, but rather, an opportunity for the DWP to take away the financial support that you are entitled to.

Things that are noted from your form:

  • Did you complete the form yourself
  • Is the handwriting legible
  • Are the contents coherent

These observations are already used in assessing your hand function, your cognitive state and concentration.

Further observations made:

  • Do the things you have written add up, is there consistency
  • Does your medication support your diagnosis
  • What tests have you had to confirm diagnosis. For example a diagnosis of sciatica is not accepted unless diagnosed by MRI scan
  • Do you have supporting medical evidence from your GP or consultants. If you do, it shows that you are able to organise getting this information

When the HCP has read your form they input some data into the computer system. The assessment properly begins when they call your name in the waiting room.

At this point the HCP assesses:

  • Did you hear your name being called
  • Did you rise from your chair unaided, did the chair have support arms or not
  • Were you accompanied – assessing your ability to go out alone
  • Were you reading a paper while waiting – assessing your concentration
  • Did you walk to the assessment room unaided, did you use aids correctly. Did you navigate any obstacles safely – assessing sight

The HCP will shake your hand on introduction – assessing your handshake, noting if are you trembling, sweating – signs of anxiety. Note that you are under constant scrutiny. The HCP will often ask on the way to the assessment room:

  • How long you’ve been waiting – assessing your ability to physically sit, and appraising your mental state
  • How did you get here today – assessing your ability to drive or use public transport

Formal assessment begins by listing medical conditions/complaints. For each complaint you will be asked:

  • How long have you had it, have you seen a specialist
  • Have you had any tests, what treatments have you had
  • What’s your current treatment. Have you had any other specialist input e.g. physiotherapy, CPN

The HCP will use a lack of specialist input/ hospital admissions to justify assessing your condition as less severe. Medications will be listed and it will be noted if they are prescribed or bought. Dates will be checked on boxes to assess compliance with dosage and treatment regime. Any allergies or side-effects should be noted.

  • A brief note is made of how you feel each condition affects your life
  • A brief social history will be taken – who you live with, if have you stairs in your house or steps outside your house
  • An employment history taken – when you last worked, what you work entailed, reason for leaving employment

Your typical day – this is the part of the assessment where how you function on a day to day basis is used to justify the HCP decisions. Anything you say here is most often used to justify the HCP “failing” you and assessing you as “fit for work”. The HCP records their observations.

Starting with your sleep pattern, questions are asked about your ability to function. This will include:

  • Lower limb problems – ability to mobilise to shop, around the house, drive, use public transport, dress, shower
  • Upper limb – ability to wash, dress, cook, shop, complete the ESA form
  • Vision – did you manage to navigate safely to the assessment room
  • Hearing – did you hear your name being called in the waiting room
  • Speech – could the HCP understand you at assessment
  • Continence – do you describe incontinence NOT CONTROLLED by pads, medication. Do you mention its effects on your life when describing your typical day
  • Consciousness – do you suffer seizures – with loss of continence, possible injury, witnessed, or uncontrolled diabetes
  • The HCP observations include noting how far you walked to the examination room, watching to see if you removed your coat independently, did you handle medications without difficulty, did you bend to pick up your handbag

Formal examination consists of simple movements to assess limited function. Things the HCP also looks at:

  • Are you well-presented, hair done, wearing make-up, eyebrows waxed
  • Do you have any pets – this can be linked with ability to bend to feed and walk
  • Do you look after someone else – as a parent or carer – if you do, this will be taken as evidence of functioning
  • Are you doing any training, voluntary work, do you socialise – this will be used as evidence of functioning

This is not a comprehensive list, but it gives you an idea of how seemingly innocent questions are used to justify HCP decisions to pass you as “fit for work.”

Mental Health:

  • Learning tasks – can you use a phone, computer, washing machine
  • Hazards – can you safely make tea, if you claim you have accidents, there must be emergency services involvement, e.g. fire service. Near miss accidents do not count

Personal Actions:

  • Can you wash, dress, gather evidence for assessment
  • Do you manage bills

Other observations made by the HCP – appearance and presentation:

  • Coping with assessment interview – any abnormal thoughts, hallucinations, confusion, suicidal thoughts
  • Coping with change – ability to attend assessment, attend GP or hospital appointments, shopping and socialising

More HCP observations include:

  • Appearance, eye contact, rapport, any signs/symptoms that are abnormal mood/thoughts/perceptions. Any suicidal thoughts
  • How you cope with social engagement- appropriateness of behaviour – any inappropriate behaviour must have involved police to be considered significant
  • Your capacity to cope with the assessment, overall responses and level of engagement with the assessor

Again, this is not an exhaustive list, merely some examples.

Additional information:

Special cases: exemptions from assessment include – terminal illness, intravenous chemotherapy treatment and regular weekly treatment of haemodialysis for chronic renal failure; treatment by way of plasmapheresis; regular weekly treatment by way of total parenteral nutrition for gross impairment of enteric function.

At present to qualify for ESA you need to score 15 points. This can be a combination of scores from physical and mental health descriptors.To qualify for the support group you must score 15 points in one section. As long as you are claiming income-based ESA then your award can be renewed at each assessment, if you gain 15 points.

Remember that you may also qualify without meeting the 15 points criterion, even if you don’t score any points, because of Exceptional Circumstances (Regulations 25, 29 and 31, 35) if there would be a substantial risk to your mental or physical health if you were found not to have limited capability for work and/or work-related activity respectively.

Contribution-based ESA lasts for 1 year only, unless you are in the Support Group. After 1 year, in the Work-Related Activity Group (WRAG), you may only get income-based ESA if your household income is below a certain threshold. It makes no difference how long you have previously paid National Insurance. 

Further information:

Lord Freud – “Reliably, repeatedly and safely”  – Source: Hansard, column 326, paragraph 4.

*There are Judges who interpret the law and where applicable, set precedent. There are Ministers who set policy. With specific reference to the use of repeatedly, reliably, safely, and in a timely manner, this is the result of Upper Tribunal judges interpreting the law and setting precedent through case law.*

Exceptional Circumstances: Employment and Support Allowance Regulation 25
 Exceptional Circumstances: Employment and Support Regulation 31
Employment and Support Allowance: 2013 Regulations in full
Explanatory memorandum to all benefits 2013: Full legislation document
Recommended – Implications of the changes and advice: Employment Support Allowance claim update: Exceptional Circumstances – Regulations 25 and 31 and Universal Credit
Recommended – The Black Triangle Campaign: How to Gain Exemption from DWP/Atos ‘Fit for Work’ & WRAG decisions by Applying ESA Regulations 29 and 35 (see note for 25 and 31)
The new Work Capability Assessment 2013: DWP Guide
The Employment and  Support Allowance Regulations 2008 (as amended) – judiciary.gov.uk

Appendix A: 

Regulation 25

25.—(1) A claimant who does not have limited capability for work as determined in accordance with the limited capability for work assessment is to be treated as having limited capability for work if paragraph (2) applies to the claimant.

(2) Subject to paragraph (3), this paragraph applies if—

(a) the claimant is suffering from a life-threatening disease in relation to which—

(i) there is medical evidence that the disease is uncontrollable, or uncontrolled, by a recognised therapeutic procedure; and

(ii) in the case of a disease that is uncontrolled, there is a reasonable cause for it not to be controlled by a recognised therapeutic procedure; or

(b) the claimant suffers from some specific disease or bodily or mental disablement and, by reason of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work.

(3) Paragraph (2)(b) does not apply where the risk could be reduced by a significant amount by—

(a) reasonable adjustments being made in the claimant’s workplace; or

(b) the claimant taking medication to manage the claimant’s condition where such medication has been prescribed for the claimant by a registered medical practitioner treating the claimant.

(4) In this regulation “medical evidence” means—

(a) evidence from a health care professional approved by the Secretary of State; and

(b) evidence (if any) from any health care professional or a hospital or similar institution,

or such part of such evidence as constitutes the most reliable evidence available in the circumstances.

*Regulation 25 outlines exceptional circumstances in which a person will be treated as having limited capability for work, but may be capable of work-related activities. People in these circumstances are placed in the ESA work-related activity group (WRAG)

However, there are further exceptional circumstances in which a person  will be treated as having limited capability for work-related activity in addition, and will therefore be placed in the ESA support group. These are outlined by Regulation 31.

Regulation 31 

31.—(1) A claimant is to be treated as having limited capability for work-related activity if—

(a) the claimant is terminally ill;

(b) the claimant is—

(i) receiving treatment for cancer by way of chemotherapy or radiotherapy;

(ii) likely to receive such treatment within six months after the date of the determination of capability for work-related activity; or

(iii) recovering from such treatment,

and the Secretary of State is satisfied that the claimant should be treated as having limited capability for work-related activity;

(c) in the case of a woman, she is pregnant and there is a serious risk of damage to her health or to the health of her unborn child if she does not refrain from work-related activity; or

(d) the claimant is entitled to universal credit and it has previously been determined that the claimant has limited capability for work and work-related activity on the basis of an assessment under Part 5 of the Universal Credit Regulations 2013.

(2) A claimant who does not have limited capability for work-related activity as determined in accordance with regulation 30(1) is to be treated as having limited capability for work-related activity if—

(a) the claimant suffers from some specific disease or bodily or mental disablement; and

(b) by reason of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work-related activity.

For all ongoing cases where Universal Credit does NOT apply, and for ALL Contributions-based ESA claims:

Regulation 29

29.—(1) A claimant who does not have limited capability for work as determined in accordance with

the limited capability for work assessment is to be treated as having limited capability for work if:

paragraph (2) applies to the claimant.

(2) This paragraph applies if—

(a) the claimant is suffering from a life threatening disease in relation to which—

(i) there is medical evidence that the disease is uncontrollable, or uncontrolled, by a recognised therapeutic procedure; and

15(ii) in the case of a disease that is uncontrolled, there is a reasonable cause for it not to be controlled by

a recognised therapeutic procedure; or

(b) the claimant suffers from some specific disease or bodily or mental disablement and, by reasons of

such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work.

Regulation 35

35.—(1) A claimant is to be treated as having limited capability for work-related activity if—

(a) the claimant is terminally ill;(b) the claimant is—

21(i) receiving treatment by way of intravenous, intraperitoneal or intrathecal chemotherapy; or

(ii) recovering from that treatment and the Secretary of State is satisfied that the claimant should be treated as having limited capability for work-related activity; or

(c) in the case of a woman, she is pregnant and there is a serious risk of damage to her health or to the health of her unborn child if she does not refrain from work-related activity.

(2) A claimant who does not have limited capability for work-related activity as determined in accordance with regulation 34(1) is to be treated as having limited capability for work-related activity if—

(a) the claimant suffers from some specific disease or bodily or mental disablement; and

(b) by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work-related activity.

Appendix B

Most Atos HCPs are not doctors, they are usually nurses or occupational therapists. You can demand that a qualified doctor or specialist conducts your assessment under some circumstances. I’ve gathered the following list from various Freedom of Information responses from the Department for Work and Pensions.

List of conditions judged suitable for assessment by neuro – trained nurses/any health care profession, so make sure that you are seen by a qualified HCP: 

Prolapsed intervertebral disc
Lumbar nerve root compression
Sciatica
Slipped disc
Lumbar spondylosis
Lumbar spondylolisthesis
Lumbar spondylolysis
Cauda equina syndrome
Spinal stenosis
Peripheral neuropathy
Neuropathy
Drop foot
Meralgia paraesthetica
Cervical spondylosis
Cervical nerve root compression
Cervicalgia
Nerve entrapment syndrome
Carpal tunnel syndrome
Trapped nerve
Paraesthesia
Tingling
Numbness
Brachial plexus injury
Polyneuropathy
Dizziness
Vertigo
Essential Tremor
VWF
Alzheimer’s

List of conditions judged by the DWP and Atos Healthcare as suitable only for assessment by doctors:

Stroke
Head injury with neuro sequelae
Brain haemorrhage
Sub Arachnoid Haemorrhage
Brain tumour
Acoustic Neuroma
Multiple Sclerosis
Motor Neurone Disease
Parkinson’s disease
TIAs
Bulbar Palsy
Myasthenia Gravis
Muscular Dystrophy
Guillain-Barre Syndrome
Amyotrophic lateral sclerosis
Syringomyelia
Neurofibromatosis
Spina bifida
Polio
Fits (secondary to brain tumour)
Learning difficulties (with physical problems)
Nystagmus
Myelitis
Bells Palsy
Trigeminal Neuralgia
Paraplegia
Quadriplegia
Huntington’s Chorea
Huntington’s Disease

Further reading:

More on questions you may be asked at assessment: dwpexamination forum 
How to deal with Benefits medical examinations: A Useful Guide to Benefit Claimants when up against ATOS Doctors
More support and advice here: How to deal with Benefits medical examinations
Step by step guide to appealing a ESA decision: Good Advice Matters

Important update

Clause 99, Catch 22 – The ESA Mandatory Second Revision and Appeals

Additional support:

The LawWorks Clinics Network is a nationwide network of free legal advice sessions which LawWorks supports.Clinics provide free initial advice to individuals on various areas of law including social welfare issues, employment law, housing matters and consumer disputes – List of LawWorks  clinics

V-STARTU

Thanks to Robert Livingstone for his valuable contributions.

With many thanks to Joyce Drummond for contributing such valuable information about the Work Capability Assessment.

With many thanks to The Black Triangle Campaign for sharing their work on the GP support letter template, and covering legal and explanatory documents

I don’t make any money from my work. But you can help me continue to research and write informative, insightful and independent articles, and to provide support to others by making a donation. The smallest amount is much appreciated – thank you.

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186 thoughts on “Essential information for ESA claims, assessments and appeals”

  3. The information here is excellent and very worth using. I won my appeal in 2011 using Regulation 29 successfully. It took all of five minutes for the Judge to decide in my favour. I had scored 0 points at assessment. I could have challenged that – in fact I had prepared for going through every single assessment descriptor at my Tribunal, but it wasn’t needed. Both of these Regulations help cut through a lot of stress, time and effort so please do use them.

    The information that Joyce Drummond provided as a ex-employee of Atos has been very useful and we have tried to organise it coherently and in a way that can be easily used. Please share widely, so that people going through ESA claims appeals, and assessments may be informed and prepared when they face those events.

    Liked by 1 person

    Reply

    1. Do you have a link to the information Joyce Drummond provided please? I have read it a couple of times but I don’t have it saved anywhere so it would be very helpful if you had a link to it.
      Thank you
      Angela

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      Reply

  5. Excellent advice thanks so much. I’m waiting for appeal date. Almost at 42 week stage. In WRAG contribution based. Need carer can’t go anywhere outside local area alone, have Fibromyalgia & PTSD. Lets see how it goes.

    Keep up the great work

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  12. Hi Nigel, I am not a Doctor, but I do know that because of the considerable overlap between these conditions, the terms are sometimes used interchangeably, and that people with COPD often have a diagnosis of asthma as well.

    Emphysema and chronic bronchitis are two types of COPD that often coexist. Sometimes, it is difficult to understand the differences between the two, but both cause difficulty breathing and other lung related symptoms. Asthma can arise by itself or with COPD but the causes tend to be a little different.

    http://copd.about.com/od/faq/f/copddifferences.htm

    Liked by 1 person

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  14. thankyou…thankyou…thankyou…am no longer worried about facing this when the time comes for my assessment…have been put on esa…but not had any assessments..medicals..or interviews… asked my g.p. if they had been contacted ref my condition…they said they had not been asked either…dont know if this right…called atos and was told this is the norm! is this so? should i have appealed? is it too late to do so now?

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    1. I hope you can use this for your appeal successfully. I won my appeal in 2011 using regulation 29. The applicable part is substantial “risk of harm” if found capable for work, or in regulation 35, capable of work-related activity.

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  19. My wife asked prior to her assessment for it to be recorded at the Leicester Office and they confirmed that this would be done. On arrival they said they could not record anything as the recorder was in use elsewhere. They asked if we wanted to come back another day. We said no and the assessment went ahead. from the time we arrived at the office I video’d everything including the assessment. My wife was a nurse and later a manager in social services running a home for mentally and physically disabled persons for 10 years and carried out hundreds of assessments. She could’nt help laughing at the questions the assessor asked and described it as a farse. She got a letter a while later saying she had only scored 6 points and would lose her benefit. She has appealed and last week received a letter from DWP saying unless she could provide a certificate from her GP to say she could not work the appeal could not be heard. Her GP was flabbergasted and said he had never ever heard of this request before. He provided her with a certificate which was sent off and we wait. My wife was due her pension last year but Cameron and his crowd moved her date for a pension back two years. She is now due her full state pension next April. What a waste of time and all the stress it causes as well as our financial hardship. May 2013

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  20. This is excellent. I have a tribunal hearing coming up in June and will certainly be using this to assist me with the preparation prior to the hearing.

    Keep up the excellent work, hopefully if enough of the British public stand up and fight DW/ATOS and the government, genuine claimants will be assessed correctly and given the financial support they deserve and need.

    Liked by 1 person

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  21. Dave Tolley May 19, 2013. My wife has been chasing DWP regarding her appeal and had not even received an acknowledgement that they had received her doctors certificate. See above.
    After ringing them and getting transferred for two days she finally got through and they said they had received the doctors certificate and they would try and arrange the lower appeal payment of around £70.00 per week as soon as possible. Again we wait.
    Jackie Hope be aware they assess you if you are able to respond to your name in reception (you are alert), read a magazine or newspaper(you can sit for more that 30 mins) follow the assessor into their room( can make your way to the assessors room- even if you are 2 feet behind them. You are not confused) and so it goes on. The Cameron government has developed the questions they ask you so that they can be interpretated only one way on their computer screens and its not in your favour. I wonder where the concentration camps for the disabled are going to be built.!!!!!!!!

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    1. I would like to add that this assessment could lead to many vulnerable people to be put in a dangerous situation as many people have great confidence in health care staff. I was so disappointed that a newly qualified physio would agree to work for an organisation that goes against all that health care staff have agreed to and I for one will from now on will ask any health care worker including doctors if they have worked for ATOS and I will make it clear that I have no confidence in them. I believe that this farce could lead to people harming themselves and even death and I am shocked and disgusted that our health workers could stoop so low to collude with this and MR Cameron and Clegg should be answerable for the trauma that have put us threw and should be answerable to the human rights court. All this following the para olympics. when will we ever learn I feel ashamed to be British
      Jackie Tolley

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  22. Pingback: The Struggle for Truth by the most Vulnerable | jaynelinney

  25. There is a notice on the wall of my GP`s office, that with the changes to the welfare reforms the doctor will not be in a position to write any letters to assist you on covering what care needs you may have personally, therefore please refrain from approaching the GP`s.

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  26. This is APPALLING. I have just been to see my GP over forthcoming ATOS assessment. GP’s in the last week or two have been given instructions by the Government that they are NOT allowed to and must not provide ANY supporting documentation on the basis that if they do it will be ignored. All they can now provide is a practice printout of a patient’s full medical history. This means GP’s can no longer provide letters saying exceptional circumstances might apply in cases where there is a risk of self harm mentally or physically to the patient or to others, either in regard to assessments or appeals or on care needs.

    If there are parts of your medical history you don’t want in the hands of government departments, you’d have to Tippex these out yourself. You also need to send a copy to the benefits office as well as handing in to ATOS as ATOS do not forward any medical evidence. It is vital to ask for a copy of the ATOS report asap after an assessment appointment/interview, and if not having company, voice record the meeting.

    Seems to be being done prior to the Universal Credit introduction. If you feel your medical history is incomplete, see your GP as soon as possible to get it updated.

    What a totally uncaring Government.

    Liked by 1 person

    Reply

    1. I can’t see how the Government can prevent GPs from caring for their patients. Anyway, we provided a tick box option for GPs, and Atos have NEVER taken evidence from Doctors seriously as a rule. BUT Tribunals DO.

      Atos often disregard Doctor’s evidence, as they claim they are not performing “medicals” but “disability analysis”. Tribunals, of course are more balanced and sensible

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  27. My GP refused point blank to sign any supporting letter with regard to ATOS or the DWP, saying they are not now allowed to do so by direct Government instructions/order. Presumably the Government has told them either that they will be considered in breach of contract as a GP or their pay will be docked if they do. Good news though that at present Tribunals accept such evidence and GPs and other doctors are still permitted for now to provide this evidence for tribunals!

    Very harsh though for any future benefit claimants e.g. with a family, if sanctioned as a result and having to wait many months for a tribunal hearing before they can claim benefits again even if then backdated. No doubt what the DWP wish with full intent by the Government/ DWP.

    It should be noted by the way that as well as Iain Duncan Smith pressing these ‘benefit reforms’ (i.e. THEFTS) that David Cameron is the prime motivator in this – as can be seen from his speeches as PM on Conservative Party Policy..

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    1. As I said, tribunals will accept the medial evidence, and consider it, but Atos haven’t paid much heed to it anyway, as they don’t conduct a “medical” as such, they claim they are “disability analysts” and regard people as “claimants” and not “patients”. In refusing to accept medical evidence, they are potentially endangering the lives of the people they assess. We know that Atos and the DWP are breaching human rights laws.

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  28. Legal Aid for first tribunal hearings has been withdrawn as of April this year. This means most benefit claimants have no recourse beyond appealing unless an organisation is willing to fund their tribunal.

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    1. You don’t have to pay for a tribunal, only the representation. So you can still appeal, but will need to present your own case, or try to enlist the support of CAB or other supportive organisations that don’t require a fee.

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      1. I could not get help from cab as they did not have enough manpower! the welfare rights would not help because I do not have a carer so I am on my own as I cannot afford a solicitor!

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  29. Hi any help here will be most gratfully recieved.
    failed the atos assesment and recieved the letter on the 29 april so phoned up and asked for them to reconced and also asked for the formsgl24 and the Esa85 report.so waited two weeks forthe forms but nothing came so phoned them up again on the 29 and they said forms had been sent out but they will send them again they also said they will send the forms out seperatly . ithen asked when a payment of jsa will be due and they said not untill the form gl24 has been returned. well no forms as yet. also had a letter from the council housing and council tax saying claim has been suspended now. i would like to know if this is all normal

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    1. if what i have read this seems the norm my friend. i had my assessment 2 weeks ago and am just waiting to be cut off, whilst waiting i have found out that the local welfare rights group is there to help and having spoke to them they said when i get word i have to visit them right away. I am sure there must be a local welfare rights group near you. Give them a try i found mine through speaking to the local housing office and they passed their details on with no issue. hope you can find some help soon, keep your head up and dont let them get to you. Never stop fighting best of luck.

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    2. Contact your housing benefit office, explain what has happened. You are entitled to housing benefit and council tax support even with nil income. It is the norm that housing benefit stops when a claim is ended, between claims or when it’s suspended, but it will be reinstated once you let the Council know what is happening.

      Best wishes

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  30. Hi guys just a quick update on things, first a big thank you for your replies.
    every thing is now sorted and been placed on ESA. while appeal is ongoing.
    also sent in the black triangle gp support note which my doc had no pobbs in filling out
    so once again THANK YOU.

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    1. That’s really good news, and i am pleased to hear the BT template is user friendly.

      Good luck with your appeal, and don’t forget to use the regulations and other information to win your case Colin, and do keep us informed about how you are getting on

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  31. Hi I have just read this I am at the stage of going to my first tribunal I had score of 15 I am now in the process of getting my medical files from hospital which I will have to find 50 pounds for and wating appointment with local c.a.b to help I got the 15 point for epilepsy which they looked at a face to face medical I attended 4 yrs ago I have deteriorate since is there anything else I need to do to be put in the support group I also get dla many thanks

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    1. Hi i am currently trying to get a wca home visit and have contacted my MP who is taking this up on my behalf i also need my medical report this would be my history. The fee of up to £50 is for the manual written report and what i am doing is writing to my healthcare trust to tell them i am on a low income and cant afford this and could they help out with costs its worth a try hope this helps

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      1. I asked my GP for a print off the report from my consultant to him, and there was no charge, my GP was pleased as it it took up no time at all. It was adequate enough evidence for my appeal, which I won. Of course I added my own account of how my illness, and symptoms affect my day to day life, which is important.

        I have also had feedback that the template forms in the article have been used successfully, since they also take up little time.

        I hope this helps.

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  32. Hello
    Any advice really appreciated.
    I had my ESA Tribunal yesterday (which was truly horrible!). I have M.E. awarded zero points in ATOS assessment despite not being physically examined as too unwell (which is stated in the report).
    My tribunal ran out of time so I have to go back.
    As advised I completed the descriptors under the guidance of whether I could do something repeatedly, reliably and safely (marking I couldn’t do something if that applied) and based on the NICE system of M.E. classification and sent this to the tribunal before the hearing. The tribunal said at the hearing that this was not acceptable. I can either do something or not, there is no room for allowance of fluctuations or how I am affected by performing a task. They also told me it was not possible for me to be limited both physically and mentally, I either had a mental illness or a physical one it could not be both. They said at the start that they were not there to judge whether I truly had M.E. but my capability to perform the descriptors. The doctor then berated me at length as to why I hadn’t seen a specialist after 4 years of ill health. When I said I went on my GP’s guidance he started asking why I hadn’t hassled my GP.
    They also had issues with the fact that my supporting evidence had been composed and typed by a family member as I was unable to do it.
    The doctor said that ‘just because something made me feel a bit tired wasn’t really a good enough reason’ or something like that anyway and yet claimed to have a clear understanding of M.E. CFS and Fibromyalgia because he saw lots of cases at the Tribunal. I googled him, he is a retired Ear, Nose and Throat Specialist.
    They hinted I should perhaps rethink the evidence I have submitted before the next date.
    They also seemed to completely disregard my statement of an average day and baseline for my illness.
    I’m sure some of it could be down to my interpretation and my obviously not wanting to be there but didn’t seem particularly impartial to me.
    Any advice on how I should proceed would be much appreciated.
    I am going to ring the Action for M.E. welfare advisor on Monday but wondered if there is any upper tier tribunal (is that right?), specific documents etc that I could send in support particularly around Lord Freud’s statement?
    Oh, they also said that my representative wasn’t allowed to speak at any time during the hearing, I had to answer all questions – what is the point of a representative then??
    Thanks guys

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    1. This is not what I wanted to hear! I suffer from SLE and have done for over 30 years> I too have the support from my Hospital Consultant and my GP and both have been ignored by DWP and ATOS I have my appeal date and am rather worried. I hope you get sorted.
      Regards
      MaryJ

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      1. I also have SLE, maryjanet. I sent in my consultants’ report – my GP printed it off for me at no cost, as it was originally sent to him anyway. I sent in my own account of how the illness affects my day to day functioning, emphasising the unpredictable and fluctuating nature of flares and periods of disability. I had no representation at all.

        I used regulation 29 and I won my case within 5 minutes of going into the tribunal. I didn’t have to speak, the panel had read what I had sent in to them, and made up their minds.

        The appeal is independent of the DWP and Atos, and is therefore much more fair, and they won’t ignore your medical evidence. Atos and DWP almost always do though, because their aim is to stop your benefit. Tribunals are about making sure a right decision is made, based on evidence. I hope some of this helps. :- )

        Good luck all of you going through this, please let us know how you are getting on, and if you need to ask anything, please feel free here. X

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      2. Hi Kitty,
        thank you for your reply. I have been so distressed about the whole affair because I have sent 3 letters from my Hospital consultant actually stating that I would be at substantial risk if I were deemed fit for work and the DM wrote to the tribunal saying that there was no further evidence to prove that I am unable to work. She has also voiced her opinions about the way the ATOS nurse conducted her assessment of me and her concerns over how she came to her conclusions! This was also ignored by the DWP.I have read your article about appealing and the ATOS tactics and found that what you said was exactly right! I also found that the Equality act 2010 was a good help so I have posted loads of info off and hope that the courts will be fair and take into account what my doctor and consultant have said.
        I now have my appeal date and I also have had to fill in another questionnaire from ATOS! unbelievable!!!!!

        thanks again
        MaryJ X

        Liked by 1 person

  33. Pingback: From: Kitty Jones’ Blog: Essential information for ESA claims, assessments and appeals | Beastrabban's Weblog

  34. There’s a huge difference between the exhaustion that happens with ME, Fibro and other chronic illnesses, and being “a bit tired”, and that comment made me very angry!

    The fatigue related to these illnesses is very different to ordinary “tiredness”

    It is felt to be both physical and mental fatigue, and is overwhelming, like no other type of fatigue. For example:

    It is VERY different to everyday tiredness (such as after a day’s work).
    It is not eased much by rest.
    It is not due to, or like, tiredness following overexertion.
    It is not due to muscle weakness.
    It is not loss of motivation or pleasure which occurs in people who are depressed.
    The fatigue is often made worse by activity. This is called post-exertional malaise. However, the post-exertional malaise usually does not develop until the day following the activity. It then takes several days to recover.

    The Lord Freud statement is actually linked on the article, you could print that off. It has been embedded into law because a tribunal has already said that it is a VALID consideration that applies to fluctuating conditions like we have. So make sure the Tribunal see a copy of Fraud’s statement, and point out what I have stated here. IT IS A VALID point to raise, that sometimes you may be capable of completing a task, but there are other times that you cannot because you are too ill.

    The fact that you couldn’t type your own statement indicates that what you have claimed is true, and the “problem” with that isn’t the courts, at all! It’s NOT your fault, after all, that you needed that support.

    That your representation couldn’t speak is also not right at all. I would ask the tribunal panel what they think the role of a representative actually is.

    You could demand a proper specialist on the panel, too, and failing that, you ought to point out that you know he is an ENT doctor, and not qualified to assess your conditions. You do have a right to a fair hearing, and so far, you have not had that. That doctor cannot have any reliable knowledge of your conditions, and therefore his opinion and contribution is worse than useless: it’s actually harmful to your case.

    I really hope that the rest goes a lot better for you. Good luckxx

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    1. I am somewhat abashed (in fact thoroughly disgusted) but not surprised at some of ATOS’s tactics. I represented my daughter and was allowed to speak freely on her behalf, and they also accepted without question my filling in her form for her and the description of a typical day. This might be because the ATOS nurse was well qualified in dealing with mental health conditions which is probably fairly unusual with ATOS personnel. However, she is in the WRA group, despite a crippling long-term condition. The only reason we haven’t appealed is that she entitled to means-tested ESA, something I myself wouldn’t be entitled to. As for some tribunals stating that a claimant can either be mentally impaired or physically impaired but not both, this is patent complete nonsense. I have worked in special schools for the severely handicapped and while some had either condition, a sizeable number of children were both mentally AND physically impaired. It perhaps means being extra careful over the medical evidence you produce. I would suggest if you have to obtain this privately if your GP is prevented from or won’t help, claiming for the cost of a private medical report by way of a small claims in the County Court from the DWP. Claimants also have the absolute right to record the assessment for themselves at ATOS assessments on a portable digital recorder (cost £10 upwards). It is most sensible to do this and for ATOS to say otherwise is a complete lie!

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    2. Kitty, the point you make about fatigue can be applied to Complex Regional Pain Syndrome (CRPS). I call it emotional and physical exhaustion. Often it’s not exertional but due to the constant pain caused by bone pain, allodynia (pain caused by the contact of anything against the skin) and hyperpathia (an example, the “funny elbow” pain persisting 3 to 4 hours after gently banging my elbow).

      The problem is that chronic CRPS is a rare condition and the DWP and Atos have a very poor understanding of it. Despite the diagnosis and medical evidence I failed the WCA and tribunal first time around. Fortunately I am now in the ESA support group, until DWP call me for the inevitable WCA. Ironic as my conditions are nearly the same they were and I sent in less medical evidence.

      What I’d like to say is that the advice you give is sound. I completed my 2nd ESA using the words “repeatedly, reliably and safely” and “significant exhaustion affecting my concentration” for several descriptors. I also pointed out where there was real significant risk to myself if I were to do such and such an activity in the WCA. Plus I wrote a letter which I sent with ESA50 saying that there was a real risk of harm with the WCA itself.

      Thank you.

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      1. Yes, it applies to many conditions. And yes, that level of severe pain is exhausting, and that’s the usual cause for extreme fatigue for me, too.

        Glad you are in the Support Group , and have some respite from the pressure of assessment, for now. Each re-assessment is an opportunity for the DWP to remove your benefits….as we know. It’s an appalling state of affairs that we are persecuted and harassed in this way. The only choice we have is to keep on challenging and fighting. I don’t know about you, but I wasn’t born a warrior, through all of these experiences, however, I am becoming one!

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  36. Pingback: Benefits: Essential information for ESA claims, assessments and appeals | Black Poppy's Junk Mail

  37. I also represented myself at appeal, I has also scored 0 points in ATOS assessment, they listened to what I had to say, asked me some questions about my mobility in general. Then adjourned for a few minutes, when I went back in they advises that they had ordered that I be paid DLA mobility component at the higher rate backdated to when I had originally claimed. I was in the appeal from start to finish for no longer than 20 mins in total.
    It’s definately worth persevering with the appeal, the panel I had to go in front of were lovely people, didn’t make me feel uncomfortable at all

    Good Luck with your appeal 🙂

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  38. Hi my daughter suffers with epilepsy, she was put in the wrag group but has never been called to attend either a wrag session or an atos medical and as her appointee I have had very little correspondence should I be worried or just take comfort that they have overlooked her so she I not having the stress like many others are going through?

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    1. I would take comfort in the fact that there is no pressure or stress, and of course if you WANT any correspondence, you can contact them. That’s the way it ought to be with “support”. I am glad to read that someone is left to participate voluntarily, rather than having to fight for recognition that they cannot participate in work activities because they are too ill.

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  39. Thanks for this info Kitty. This will be the 3rd time I’ve tried to get ESA. I feel a fraud being on Jobseekers allowance, having to apply for jobs that I know I can’t do. If I don’t apply for jobs I am in serious trouble of being sanctioned, .. I feel like I’m in a catch22 situation. I suffer from severe pain in my joints, esp my knees.. this is due to 35 years of hard graft in a factory.

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  41. I know some of you told us that your GPs said they cannot help with your appeals. The claim is that a lack of time and resources is an issue. However, the underfunding of the NHS is a political issue and it is certainly NOT fair and right that patients should be made to suffer and go without support from their GP.

    Doctors have a duty of care and that includes ensuring the well being of their patients.That would extend to ensuring that they patient is not placed in a situation that would be harmful to them, by providing medical evidence that they hold.

    This order also contravenes human rights, article 6 of the ECHR – the right to a fair hearing.

    “The applicant must have a real opportunity to present his or her case or challenge the case against them. This will require access to an opponent’s submissions, procedural equality and generally requires access to evidence relied on by the other party and an oral hearing.”
    http://www.liberty-human-rights.org.uk/human-rights/human-rights/the-human-rights-act/what-the-rights-mean/article-6-right-to-a-fair-hearing.php

    GPs are being told they should not be policing the benefits system – http://www.bbc.co.uk/news/uk-wales-south-east-wales-23353623

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  42. In addition, I would also suggest you ask for any notes that your consultant may have sent to your GP – a print off takes little time and few resources. Cost of copies is low.

    There are templates here that require just a tick and signature from GPs for regulations 29 and 35:
    https://docs.google.com/document/d/1H5oXm3xLHqfd-6qxHtyxe2V3To3CZX2zicfw1TVllVg/edit?pli=1

    https://docs.google.com/document/d/1L7xojWHTknlmtLlDl_GupAwnMkPhLrdefRHoA1h2rNk/edit?pli=1

    https://docs.google.com/document/d/1IIYYwr5hHf_EIFRl27c3mQjXoRNTXkT0-dzYj3zuxRs/edit?pli=1

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  43. hi i got paper work to do with my appeal going to tribunals hearing [bundle] it says they will be in contact with me to what happens next. on the first page [facts of case] it statesmy esa50 was recieved by medical services . the esa50 was then forwarded from medical services to belfast benifit centre and it says every possible method of trace has been actioned to find my esa50 but it can not be traced. therefore we will not be presenting an esa50 as evidence is this case. i am appealing being put in the wrong group. i thought i should be in support group. what happens now they lost my esa50 . i also sent letter from doctor with esa50 and on esa85 report it says supporting evidence reviewed esa50 copy of prescription and letter from gp yet none of this was in the bundle of paper work sent on to tribunal service. i am wondering what happens now

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  44. It’s always best to keep a copy of anything you send to DWP or Atos for this very reason: they frequently “lose” your forms and paperwork. You can ask your doc for a copy of the letter, though you may have to pay for it.

    Atos and the DWP cannot justify their decision to put you in the WRAG rather than the Support Group without the ESA 50. Can you use regulation 31? That would bypass the need for any reference to the ESA 50 for you, and I won my appeal by referring to the regulation without any need to discuss the assessment and the fact I scored zero points.

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    1. thanks for reply what is regulation 31 on letter sent after my consultants appointment to my g.p. she said my condition is uncontrolled this was just i month ago. i also have a letter going back to feburary 2011 which states the same my condition was uncontrolled then also. is this something to make my appeal to support stronger also is it true the tribunal may not hear my case if benifit centre can not produce my esa50. on the paper sent on to tribunal they say esa50 was forwarded to belfast benifit centre from medical services but was not received. yet in papers sent to tribunal on a copy of the paper work it say mr. kelly asked for a reconsideration. it says i have reconsidered all the evidence including the customers questionnaire [esa50] the health professionals report and customers letter requesting reconsideration. how then at the very start and facts of the case can they say it was never received at their office and lt can not be presented as evidence in my case yet later say they looked at it when i asked for their decision to be reconsidered. this does not make any sense

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  46. Hi I am having my Tribunal hearing this coming monday, It is being said in the DWP response that medical evidence is insufficient,and apparently there are numerous inconsistances, with my ESA50 and the appeal papers written on my behalf by a family member…Not so..my ailments have only been echoed .and if anything explained. more explicitly. The Welfare benifits team have written a submission for the hearing (my atos medical was12 & 1/2 months ago) If the hearing is not found in my favour what if anything can I do as a next step? I have currently been out of work and claiming long term sick for 10 yrs, my heath has infact deteriorated and not improved,I now also suffer with very bad migraines, the symptoms of which mimic a stroke..these it seems carry no weight re: my claim. Marie

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  47. Marie. HELP went to tribunal this morning and my case has been adjornd,initally due to my paper work from welfare benifits team not reaching the judge until 5 minutes before my hearing started. I was asked if I wanted to proceed without the welfare evidence being read and was given 5 minutes to reach that decision.I didnot know the best course of action and found it impossible to make up my mind. the judge decided on adjournment and they have now decided to request almost 3yrs of medical records, from what has been said I am under the impression that they do not think that my doctors description of my ailments matches the medications I am being treated with…..if this is the case where do I stand? If they were to find I am being inadequatly treated medicaly will this go against me?surely I can not be penalised for this? can anyone shed any light on this for me.

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  48. My doctor also seemed scared to provide medical evidence. I took the template letters and she said she had seen the info before and that a medical certificate would be enough evidence. I pushed the issue and she told me she would discuss it with her collegues first and I could come back later to collect my medical certificate and the reg 29 letters. Anyway she didnt do the letters, attached to them was a piece of paper titled ‘BMA Negotiating for the profession. The work capacity assessment.’ She had highlighted a sentence ‘ It is not the gp’s role to provide any opinion or recomendation on the patients capacity to work as part of this process’. Thing is I wasnt asking her for evidence for the assessment process. I was asking for evidence for my appeal, which is independant of atos or DWP. I think I am going to write to my doctor now telling her this and ask her to reconsider, with info that being found fit for work would be harmful to me. I have mental health probs and cant even get out the door most days due to crippling anxiety, i have a history of self harm, suicide attempt and admission to hospital, have recently been refered back to mental health services to be assessed. I read somewhere in regard to reg 29 that they have to consider if even the decison that you are fit for work would risk harm to you and for me it would. My mental health is rapidly deteriorating due to the stress of all this, and due to being found fit for work at my atos assessment. So I feel reg 29 is relevant to me. Despite my GP I am still going to mention reg 29 on my appeal and argue it myself if I have to. I will be. using the repeatly, reliably info also. Hopefully I will be assessed by psychiatrist in time and maybe he or she will. provide evidence of some kind. I am terrified if I am found fit for work my life will be over because i do not want to be homeless, hungry, etc and mentally ill. I wont survive beause I know i cannot work, and right now I can not cope with anything. Thanks for the info about reliability, repeatedly condiderations, I will try it. Goodluck to all going through this ATOS sham.

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  49. I a going through just trying to get a Wca Home visit my GP Said when i sat in his surgery he wpould support me with a covering letter i have got my MP involved from the start and he wrote to my doc but is still yet to recieve a letter from him to send me on, my GP is going to phone me tomoro to talk to me im thinking he will say i cant help you , this process is unfit for purpose as the DWP and Jobcentreplus do not communicate i have now been told by my partner who signed on today that i could get sicknotes from my doc while i am waiting for home visit decision yet was not told this , DWP stopped my IB because they decided i didnt give a good enough reason to say why i never attended my wca yet i wrote saying i have mental health probs Depression and high Anxiety and cant get out . the system is well and truly screwed for the claimant. So i fight on GOOD LUCK ALL !

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    1. Reading your post, i wonder if doctirs can backdate sick notes til the time your benefit was stopped coz then you will get back pay also. There is very little levity in the descriptors for those of us with mental health probs. Because its variable, sometimes. I didnt want to attrend my WCA, nearly didnt, and im dreading the appeal and thats if i can calm down enough to leave the house that day and find somone to come with. Atos and DWP just dont care ior understand if you have social anxiety disorder or agriphobiaetc depression etc,that its hard to even atend doc appointments, go shopping, anything, to the point sontimes your health and self care can be neglected, let alone attend a tribunal. Its ridiculous. Goodluck.

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      1. Just had a callback from my GP had a nice lil chat and he understands my concerns and can see i am unsettled and has now agreed in writing a covering letter to dwp and will post it to me to send on with my appeal over a wca home visit. Lets hope i hear something good back from the dwp as they really hate giving out home visits well Tuff .. And yes theres not enough said or done to help anyone in this welfare reform process that is unfit for purpose! Lj dont let the buggers grind you down and fight back even though you feel like throwing the towel in on the plus side theres loads of info on this site and many more with helpful suggestions and templates which i will be using once my decision is made .. Good luck

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