The government are challenging independent disability assessment appeal decisions

newton

In 2017, the then minister for disabled people, Sarah Newton, said that the Department for Work and Pensions (DWP) was “recruiting, training and deploying” approximately 150 presenting officers (POs) to attend Personal Independence Payment (PIP) and Employment and Support Allowance (ESA) tribunals “in order to present the Secretary of State’s case and support the first tier tribunal in arriving at the right decision”.

The question is the ‘right decision’ for whom? It’s certainly not disabled people.

Given that, at the point of appeal, the Secretary of State’s case has already been presented twice –  at the first DWP decision following assessment and again during the mandatory review – it seems that the government is using an incredibly oppressive and authoritarian approach to prevent successful appeal outcomes for ill and disabled people trying to access disability-related social security alone, without legal aid and support in the majority of cases. 

Last week I spoke to someone who won her PIP appeal following a reassessment which had resulted in the loss of her PIP award. After waiting two weeks for some communication from the DWP,  she rang to see when her award would be reinstated. She was informed that the DWP had requested the full written reasons for the tribunal’s decision, and that they were considering challenging the court’s decision. If the DWP decide to proceed with their challenge, they must apply for permission to appeal.

The application must be made within one month of the date of the tribunals’ written statement of reasons. So far, the claimant has been left without her award for 13 weeks, and she is very distressed. Having gone through mandatory review and appeal, she is utterly exhausted and the stress of the process has significantly exacerbated her illness – she has multiple sclerosis. Since her assessment, she has also needed treatment for anxiety and depression.

The claim for PIP was in relation to her physical disabilities, but she has become mentally unwell as a direct consequence of her extremely distressing experiences. The DWP will be permitted to appeal the tribunal’s decision only if it is considered that the decision resulted from an error of law. Once the tribunal have received the request the chair of the tribunal will provide a written statement to the claimant and the DWP explaining why they awarded PIP.  It can take up to 12 weeks for the written statement to be sent out.  

I co-run a support group online for people going through ESA and PIP claims, assessments, mandatory review and appeals. We are seeing a rise in the number of cases where the DWP are requesting written reasons for the decision of the tribunal, but quite often, it eventually emerges that they are not proceeding with an appeal. 

This leaves people waiting many months with the fear they may lose their lifeline award, causing a lot of additional and unnecessary distress. Furthermore, the DWP are not keeping people informed of their intentions in a reasonable and timely manner, which adds significantly to the distress and uncertainty that the whole awful process has created.

There are two people who have waited over 12 months after they won their appeal, while being told by the DWP that they are still awaiting the judge’s decision as to whether the DWP can proceed with a challenge. Meanwhile, the DWP refuse to discuss the details of the matter any further when people ask for details and an idea of a timescale.

One person told me he felt that the DWP are “intentionally playing mind games to demoralise and scare people”, and that leaving people feeling precarious was “a deliberate strategy” to undermine people’s expectation of support, and 

Someone else who won their PIP appeal has been left for four months without any payments, the DWP claim he owes them money for an overpayment, and refuse to release the money he is owed. However, he told me that he does not owe any money, and has never been overpaid, as prior to his relatively recent claim for PIP and ESA, he was in work and received no social security. He ahs also been forced to appeal the DWP’s decision not to award him ESA. 

The DWP were allocated £22m of public money to hire the “presenting officers” to “support” the DWP at disability benefit tribunals. Disability campaigners warn that these 180 presenting officers, rather than helping judges to make fair decisions about whether to overturn the DWP’s rejection of someone’s claim for benefits, will inevitably argue as forcibly as possible in the government’s favour. The aim is to cut the number of successful appeal outcomes for claimants. The reality is that PO’s are sent by the DWP to try to discredit claimants’ accounts and to argue forcibly for the DWP’s interpretation of the law to be accepted. 

A freedom of information request by Disability News Service resulted in them being sent forms that have to be completed by presenting officers after each tribunal they attend.

Included in the documents are the following questions for presenting officers attending ESA and PIP tribunals, respectively:

“PO impact – Was SG [support group] award averted”

“PO impact – was enhanced PIP award averted?”

DNS quotes a DWP insider, saying that presenting officers are being given the ‘target’ of stopping enhanced PIP payments and that this was placing ‘immoral pressure’ on presenting officers. (See the full article: ‘Truly appalling’ revelations ‘show DWP is subverting justice’ at appeal tribunals.)

The DWP outline says: “The PO must be confident that the decision is accurate and prepared to lapse appeals where this is not the case. They must highlight inconsistencies and take appropriate action when new evidence comes to light, including making a critical assessment of its validity.

But surely that is the role of an independent court.

At the time, Marsha de Cordova, Labour’s shadow minister for disabled people, described the DWP’s admission as “truly appalling”.

She said: “The idea that the ‘impact’ of DWP staff is being assessed on whether they managed to get ESA support group or enhanced PIP awards ‘averted’ is truly appalling.

“Presenting officers are supposed to be there to provide fair and balanced evidence of a claimant’s needs.

“In May last year [2017], freedom of information requests revealed that the DWP was setting targets to reject 80 per cent of social security appeals at mandatory reconsideration.

“They clearly haven’t changed their approach.”

She added: “The whole system is broken: from assessments where, for example, only eight per cent of claimants think assessors understood their mental health, through to appeals where judges are overturning over 67 per cent of initial ESA and PIP decisions.

“Labour will scrap the current PIP and ESA assessments, bringing an end to the Conservatives’ failed, privatised assessment system.

“Instead of enforcing a culture of distrust and cost-cutting, we will work with disabled people to ensure that they have personalised, holistic support to live full and independent lives.”

The assessment process, from beginning to end, is almost entirely about providing opportunities for assessors and DWP decision makers to manufacture as many far fetched ‘inconsistenciesas they can to prevent awards and deter as any higher rate awards as possible.

This means that PIP is not about meeting the needs of disabled people, it is about how little the state can get away with paying out from public funds, regardless of a person’s needs and entitlement.

It was acknowledged in my own PIP assessment report that I had cognitive difficulties because of my illness. The HCP said that I had difficulty focusing when asked questions and needed prompting. She acknowledged that I rely on a 7 day pill organiser to ensure I take my medication safely and correctly.

However, the report said that I had a degree (I graduated back in 1996), I had worked in a profession – as a social worker (until 2010, when I became too ill to work) and I had a driving licence in 2005 (I haven’t been able to drive since 2005 because of flicker-induced partial seizures). The assessment took place in 2017. I was not awarded a point for cognitive problems, and was just one point short of an enhanced PIP award. The reasoning behind not awarding the one point was unreasonable, irrational pretty thinly stretched, given that I cannot drive, I was forced to give up work in 2010, and I graduated in 1996. The decision at mandatory review was exactly the same, with the same woefully incoherent reasoning presented again.  

In November 2017, POs attended 23% of all first tier PIP tribunals, but the aim back then is to increase this to 50%.

It would seem likely that presenting officers are being used primarily to target claimants who are likely to be seeking enhanced rates of PIP or the support group of ESA. In which case their presence has nothing to do with improving decision making by feeding back to colleagues and everything to do with taking awards from disabled people, regardless of the high price disabled people have to pay in terms of loss of independence, loss of income to meet their basic and additional needs, placing them in unacceptable situations of severe hardship. 

A claimant who secretly recorded his personal independence payment (PIP) assessment and provided a transcript to a tribunal has won his appeal against a disability living allowance (DLA) to PIP transfer decision, the BBC has reported.

Nev Cartwright, 45, received DLA because of breathing difficulties caused by a lung tumour which led to his left lung being removed.

Last year he was told to attend a ‘medical’ to assess him for PIP instead of DLA. Because he had seen a programme the night before questioning the fairness of PIP assessments, Nev decided to secretly record the interview on his mobile phone.

As a result of the assessment Nev lost his higher rate mobility and had to return his Motability car.

When he read the PIP assessors report he realised that there was information missing and other details such as his peak flow reading, had been altered. The effect was to make Nev seem much more mobile than he actually was.

Nev had a professional company write a transcript of his assessment recording and asked to be allowed to submit it as evidence for his appeal.

The DWP tried to prevent the transcript being admitted by the tribunal, but they failed and the transcript was taken into account. As a result Nev won his case and now has his Motability vehicle again.

Given the very costly restrictions attempt to place on openly recording your PIP assessment, it is not surprising that some claimants turn to doing so covertly. Although we have had members who have used relatively inexpensive cassette recorders at their assessment.

It is not illegal to secretly record your assessment.

But if you are caught doing so and refuse to stop, the interview is likely to be ended and you will be held by the DWP to have failed to take part in the assessment with the result that you will not be awarded PIP.

This imbalance of power is most certainly subverting justice for disabled people. We often hear about the outright unfair methods the DWP uses to cut disabled people’s income when they have been held to account. But for every case we hear about where justice prevails in the end, there are many more that slip under the radar, because perhaps some of us are simply too ill, exhausted and disheartened to appeal alone, without any legal support, while the government spends hundreds of thousands of pounds of public funds to prevent us from having a fair and balanced assessment and hearing, and accessing the social security support that most of us have paid towards.

Meanwhile, Atos and Capita have come under fire for the reported mishandling of as many as a third of the PIP assessments they carried out. The firms received a raise for their efforts last year, raking in more than £250 million each for the controversial disability welfare checks, despite Parliament’s Work and Pensions Committee recently suggesting vulnerable people had been “pushed to the brink of destitution” by the contractors’ handling of the scheme.

That’s because the private companies are contracted to do precisely that by the government.

pip-esa inhumane

 


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14 thoughts on “The government are challenging independent disability assessment appeal decisions

  1. Aktion t4 at its best these devils in power are culling the stock through benefits denial yet on it goes while MPs talk about it in the side rooms of parliament

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  2. Hi Kitty

    This is a worrying development and thanks for highlighting it. I am seeing a pattern here. I think the DWP have definitely been advised to reduced those people getting enhanced on both and a lot are coming back with standard. I find it very suspicious that having been awarded enhanced on both last time the independent assessor has advised that I get only Standard DL and lose mobility altogether which I have had for 20 years. I felt sure she’d been instructed by Atos to knock down my award and it’s very suspicious that the report was almost the same as the previous except in the areas that scored the highest points and reflecting my highest needs. So social support was marked nought and the reasons were completely unconvincing but losing 4 points from the previous assessment was the difference between standard and enhanced. Then for mobility which I’ve had for years (when migrated to PIP was awarded enhanced from low rate DLA) she gives me 4 points, so now, when my conditions have increased and worse than ever she suggests I lose my mobility? It’s just nonsense and her justifications were ridiculous and all supposition. Needless to say I have complained to Atos and to the NMC but I won’t hold my breath. But I am worried now that the DWP will be even worse than Atos who are only contracted by them after all.

    Atos were also in breach of the Equality Act ‘reasonable adjustments’ by not giving home visits for people who need them. My GP had recommended a paper assessment but Atos said that because I’d been to the doctors I could come in for an assessment. They had no proof (my GP wouldn’t give that information) and I had to get my MP to secure me a home visit

    I was severely anxious when my assessor came, I told her I’d needed take two tranquillisers leading up to the assessment.  During the assessment I gave her virtually no eye contact (she was sitting beside me and it would have been awkward to turn my head even if I didn’t have bad anxiety).  She in fact said ‘sorry if I don’t give you eye contact’ so this in itself is proof she wasn’t looking at me because she was looking at her laptop.

    I hadn’t brushed my hair before the assessment or groomed and yet she said I was well kempt. I rarely brush my hair because of the effort but I had a hat on because of feeling cold and she made no reference to that either.

    She said I coped well in the interview, I wasn’t anxious or tense, I didn’t need prompting, but my sister prompted me regularly.

    I kept repeating that I needed prompting to be woken to eat in the evening in the preparing food and taking nutrition sections and yet she ignored this in her scoring

    The assessor asked very little about my mental health and agoraphobia because in the time available she seemed to be concentrating most of the time on my CFS and fibromyalgia and she didn’t even mention anxiety and phobias in the office use only box (unlike the previous assessor).

    Throughout the report the assessor said about having insight and orientation in time and space. Lack of insight is to do with psychosis and some learning difficulties. This is what, in fact, my DLA assessor said 20 years ago. There’s no place where I said I have psychosis. People with severe anxiety and agoraphobia are all too aware of their condition and have great insight so that argument is nonsense and pseudo psychology. She said condition history shows no formally diagnosed cognitive, learning disabilities or autism but I have a lifelong history of anxiety and social and agoraphobia and yet she played this down while at the same time acknowledging it. ‘It’s perhaps reasonable to suggest it may work for her…’ the words ‘perhaps’ and ‘may’ gave her away.

    Re: planning and following journeys she failed to take into consideration that I am unable to do this for most of the time, reliably, repeatedly and in a timely fashion and on the rare occasions when I do it causes me untold distress, anxiety, fatigue and pain and especially from the interactions of so many conditions. I have had a mobility component of disability benefit since 1999 and now when I have both physical and mental conditions and my need is greater than it’s ever been, she recommends no help at all?

    Assessors aren’t supposed to take a snapshot of a person and her report fails to reflect this eg in the week or more beforehand when I was laid up in bed and then shortly after the assessment I went down with a chest infection for over a week, in spite of hardly having been out. Such viruses knock me out more than the average person because of my weakened immune system

    When my doctor recommends me for a paper assessment in future having known me and treated me for years I’m going to fight for this. I’m not going through that again and the fact that I will never trust an assessor again is their own fault. I feel duped and had my trust betrayed and my conditions trivialised. How come people with disabilities can continue to be so abused when if this was any other group it would be a criminal offence?

    By the way, I also secretly recorded mine but doesn’t show my expression or shaking.

    Anyway, I’m sure together we can do something about this, all of us, rather than each fighting our cases in an isolated way. In solidarity.

    Liked by 1 person

    1. In solidarity, Moggy. My PIP assessment was put off for years because of the trauma I had to go through to get my ESA award. As soon as I won my appeal, within just 3 months I was sent for a reassessment… I put off claiming PIP for 6 years.

      I have no doubt the one point was deliberately taken off to ensure I didn’t get the enhanced rate. I made a formal complaint because of the fact I left the assessment with much more pain than when I arrived because the asssessor’s ‘examination’ included asking me to perform unfamiliar movements I had no way of knowing I simply could not do. They looked simple enough, but my neck locked, my calf swelled and so did my right shoulder. I couldn’t move for days afterwards because of the pain. The mandatory review said exactly the same as the assessor’s report. I was too ill at the time to go through appeal, so I have a basic PIP award for now. X

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      1. Very sorry to hear about the rough times you have had, Kitty 😦 That’s shocking they put you through so much pain and that they get away with people putting up with lower awards because so many people would rather not have the stress and they bank on that. I could have told them about a change of circumstances (new conditions) for my DLA but I stayed on low rate mobility for years as I’d have rather had less money and less stress. I waited until I was migrated to PIP. My assessor at least said I didn’t have to do the exercises. She was so nice and as the previous assessor and been nice like and awarded me enhanced on both I was duped.
        My sister had the same harassment with her ESA back in 2012. And it seemed to be they were hassling everyone who won an appeal for a while. Then they left her alone.
        In solidarity – Moggy x

        Liked by 2 people

  3. I have just had my own ESA assesment results through, i was shocked to find they only gave me 6 points! but not completely surprised as i read all the articles and know what they are doing, i have been successful last 4-5x(over 8-10yrs) the first 3x i won by appeal at tribunal the other times they reconsidered and awarded it me, my condition has not changed at all in this time i just have a new serious condition yet it’s undiagnosed and under investigation still which stops me from being able to stand up for more than about 30-60 seconds at a time, so i felt i would be safe this time as nothing had changed only a new condition, apparently you get 15 points if you cannot stand for 5mins of more, i checked their point system and i got about 30-35+ points so i thought no problem. I had a call to tell me i had not got enough points, i’d felt sick waiting for this result as i do each time, i told the lady on the phone that i had not got any better only worse, she explained that ESA was not a benefit for life, i know what it is but i cannot work and nothing has medically changed so how can their decision change, i am sick what do i do, i dont want to be on ESA stuck in this cycle of constant harrasment by the DWP, it’s horrible, it used to be every 2yrs but now every year they will pull u in again, i’m unlikely to get better yet they keep harassing me asking me to prove my case each time like i am lying, im sick of it and they make me feel like crap every time, i don’t want to be on benefits but i have no option due to my health.

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  4. Hi Kitty, I’m so sorry that I haven’t thanked you for the article that you wrote ages ago …I really haven’t been well at all and haven’t even been able to face reading anything about these sort of situations. .
    I am STILL waiting for my PIP to be paid after winning my appeal back in December and it has been one mistake and delay after another! The impact of all this, is, as I’m sure you can understand, terrible…and ongoing. My mental health is not at all good and I really don’t think I’m going to recover from this anytime soon, even when my award does get paid. It’s just too late.

    As I think I mentioned before,the HMCTS lost my file at their ‘newly created offsite storage facility’ …this is after the DWP asked for them to amend the decision letter on the 14th January (which the DWP did not tell me about when I phoned three times in the weeks following that to find out what was happening, so another great example of ‘not keeping people informed of their intentions in a reasonable and timely manner’!). One of their clerks finally replied to my MP’s assistant at the start of March saying that that was now ‘resolved’ and now presumably in the hands of the judge for amendment …..and we are still waiting.

    Even my actual MP is involved now (as opposed to her assistant) as, I quote, thus is obviously ‘unacceptable’ and ‘smacks of sheer indulgence on behalf of the judiciary’. My MP’s office have not been able to get any answers or any timescales from the HMCTS whatsoever, as they seem to pride themselves about being non contactable. As of last week, my MP had me write a letter of complaint which she is taking directly to the Minister of Justice, I believe. I have not heard anything since (thinking about emailing to ask for an update) but she did mention that the next step would be the ombudsman.

    No idea about my ESA either (I think I mentioned that that came up for renewal exactly the same timescale after I won PIP at tribunal last time as well!) ….I have received a second April rates letter with some ambiguous wording about ‘a decision to put you in support group’, which I think was actually the decision letter last time too but I’ve emailed the JC+ district manager to be sure as I just wish that they would send a proper decision letter! I’m sure they do it in order to confuse and worry us ….have heard some very interesting things about the practices of the DWP through all this too!

    Hope you are well and that we will all get some better news soon xx

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    1. Hi Charlie, No worries concerning the article. I’m glad to hear from you. I am so sorry you’re still going through the terrible circumstances, and to hear you are not well. It can’t have helped that you had to go through the ESA review as well. The uncertainty is pretty unbearable, and just one assessment and having to challenge a decision subsequently is enough to tip many of us over, exacerbating existing health problems. It’s unspeakably cruel and harmful of the state to be treating ill and disabled people in this way.

      I hope that you have been placed in the support group, and that they leave you alone for a good few years now, after all of this terrible stress. That does happen, sometimes.

      I hope very much that this is quickly resolved now.

      If you ever feel up to disclosing the DWP practices you raise, I’d be happy to write about them – anonymously of course!

      Wishing hard that you have the good news you should have already had very very soon.

      Very best wishes,
      Sue xx

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  5. I can completely relate to everything I have read by nearly all of you. I was awarded ESA in 2015 with the support component. When my DLA finished in May 2015, I had been turned down for PIP! From my first assessment which completely shocked me when I read the assessors report, she told utter lies & even put a false reading for an asthma/bronchitis check that she didn’t even bother to do, aswell as most of the other tests they’re supposed to do, which she didn’t? I even questioned if I had got someone else’s report by mistake?! Guess where she was from – Atos?!!! I have heart murmur, angina, severe depression, epilepsy (now controlled by medication,) copd, high blood pressure, Cervical Spondilosis, deafness in both ears (I wear hearing aids in both,) anxiety & also Fibromyalgia which I’ve been trying to get diagnosed with for over 15 years? Yes I have been going through appeals & tribunals, only to get turned down then re – apply again? I am currently awaiting a decision to go to upper tribunal after refusal to appeal by first tier judge? I honestly can’t remember if this is my 2nd or 3rd attempt? (I have memory loss problems, which I think is due to having grand mal seizures over 20yrs ago? Although I’ve since found out it could be down to “Fibro fog?”) I have had welfare rights helping me & I’ve been advised to re-apply but with all the stress, with getting doctors letters, specialist letters, copies of numerous medical evidence/reports, which they obviously took no notice of? I don’t know if I can go through it all again? After receiving mobility allowance then DLA for 30 years, to be told by DWP I have to re claim for new benefit yet it’s a completely different benefit to DLA therefore new rules apply? My conditions have gotten worse over the years and I have newly diagnosed illnesses (even though I have suffered with them for over 25years not knowing what was wrong, trying to get diagnosis?) I’ve had real suicidal thoughts on numerous occasions. I’ve had to give up my own car as I could no longer afford to run it? I cannot walk more than approx 20-25 metres without getting breathless, pain in my back and legs? The DWP don’t care who suffers because of their decisions or the consequences, they still get paid, still get their bonuses, still go home not having to worry about paying their bills etc. They don’t care!! Sorry, rant over with now? How can they STILL be getting away with all that they are knowingly putting people through?

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    1. So sorry to read about everything you have been put through. It’s an awful truth, but they are paid to stop as many of us as possible from being awarded support, regardless of how much we need it and regardless of the fact most of us have paid into the system. And for those who could never work to pay tax and national insurance, well a civilised society would support them regardless. We are no longer a civilised society under the Conservative government, though

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  6. Hi Kitty,

    My tribunal appeal was last September or October. Didn’t have a PO, but I did get the letter saying that the DWP might appeal. Had to wait an extra month for them to decide that they weren’t going to. I asked for the statement of reasons myself, and it took weeks, so the DWP clearly hadn’t requested it – they were just forcing me to wait another month!

    I was desperate for that money, after a year without it.

    Liked by 1 person

    1. I hope you have it now.

      Following my win at tribunal, the DWP claimed I owed them money and refused to pay me what they owed me. I knew I didn’t owe them a penny, but it took 3 weeks of arguing before they issued the money into my account. But they still insisted I owed them money right up to this point! It’s as if they begrudge paying people money they owe, especially after a successful tribunal x

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