Category: ESA

A black day for disabled people – disability benefit cuts enforced by government despite widespread opposition

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“The fact is that Ministers are looking for large savings at the expense of the poorest and most vulnerable. That was not made clear in the general election campaign; then, the Prime Minister said that disabled people would be protected.” – [Official Report, Commons, 2/3/16; cols. 1052-58.]

A coalition of 60 national disability charities have condemned the government’s cuts to benefits as a “step backwards” for sick and disabled people and their families. The Disability Benefits Consortium say that the cuts, which will see people lose up to £1,500 a year, will leave disabled people feeling betrayed by the government and will have a damaging effect on their health, finances and ability to find work.

Research by the Consortium suggests the low level of benefit is already failing to meet disabled people’s needs. 

A survey of 500 people in the affected group found that 28 per cent of people had been unable to afford to eat while in receipt of the benefit. Around 38 per cent of respondents said they had been unable to heat their homes and 52 per cent struggled to stay healthy.

The Government was twice defeated in the Lords over proposals to cut Employment and Support Allowance (ESA) for sick and disabled people in the work-related activity group (WRAG) from £103 to £73.

However the £30 a week cut is set to go ahead after bitterly disappointed and angry peers were left powerless to continue to oppose the Commons, which has overturned both defeats. The government has hammered through the cuts of £120 a month to the lifeline income of ill and disabled people by citing the “financial privilege” of the Commons, and after Priti Patel informing the Lords that they have “overstepped their mark” in opposing the cuts twice.

The Strathclyde review, commissioned by a rancorous and retaliatory David Cameron, following the delay and subsequently effective defeat of government tax credit legislation in the House of Lords, recommends curtailing the powers of Upper House. Strathclyde concludes in his report that the House of Lords should be permitted to ask the Commons to “think again” when a disagreement on proposed legislation exists, but should not be allowed to veto. MPs would ultimately make a decision on whether a measure is passed into law. The review focuses in particular on the relationship between the Commons and the Lords, in relation to the former’s primacy on financial matters and secondary legislation, and serves to highlight the government’s very worrying increasing tendency towards authoritarianism.

The cuts to ESA and proposed and probable cuts to Personal Independent Payments (PIP), take place in the context of a Tory manifesto that included a pledge not to cut disability benefits.

Yesterday in the House of Lords, independent crossbencher Lord Low of Dalston warned: “This is a black day for disabled people.”

Contrary to what is being reported, it won’t be only new claimants affected by the cuts to ESA. Firstly, it may potentially affect anyone who has a break in their ESA claim (and that could happen because of a reassessment with a decision that means needing to ask for a mandatory review), and secondly, those migrated onto Universal Credit will be affected. The benefit cap will also cut sick and disabled people’s income if they are in the ESA WRAG.

Paralympic gold medallist Baroness Grey-Thompson said she was bitterly disappointed that this “dreadful and punitive” part of the Bill was going ahead.

Parliamentary procedure had prevented her putting down another amendment opposing the move, which will have a harsh, negative impact on thousands of people’s lives.

Already facing a UN inquiry into grave and systematic abuses of the human rights of disabled people, Cameron remains completely unabashed by his government’s blatant attack on a protected social group, and the Conservatives continue to target disabled people for a disproportionately large burden of austerity cuts.

The Government have been accused of failing to fulfil their public sector equality duty. Under the Equality Act 2010, the Government must properly consider the impact of their policies on the elimination of discrimination, the advancement of equality of opportunity and the fostering of good relations. This is shameful, in a very wealthy first-world democracy.

The “justification” the Tories offer for the cut of almost £120 a month to the lifeline support of people judged to be unfit for work by their own doctors AND the state, is that it will “help people into work”. I’ve never heard of taking money from people who already have very little described as “help” before. Only the Conservatives  would contemplate cutting money from sick and disabled people, whilst gifting the millionaires with £107, 000 each per year in the form of a tax “break”.

Reducing disabled people’s incomes won’t “incentivise” anyone to find a job. It will just make life much more difficult. The government have made the decision to cut disability benefits because of an extremely prejudiced ideological preference for a “small state” and their antiwelfare agenda. There are alternative political choices that entail far more humane treatment of sick and disabled people. The fact that ministers have persistently refused to carry out a policy impact assessment indicates clearly that this measure has got nothing to do with any good will towards disabled people, nor is it about “helping” people into work.

The cut simply expresses the Conservative’s contempt for social groups that are economically inactive, regardless of the reasons. Sick and disabled people claiming ESA have already been deemed unfit for work by their doctors, and by the state via the work capability assessment. Simply refusing to accept this, and hounding a group of people who are ill, and who have until recently been considered reasonably exempt from working, is an indictment of this increasingly despotic government.

I can’t help wondering how long it will be before we hear about government proposals to cut the financial support further for those in the ESA support group. There does seem to be a recognisable pattern of political scapegoating, public moral boundaries being pushed, and cruel, highly unethical cuts being announced. Social security provision is being dismantled incrementally, whilst the Conservative justification narrative becomes less and less coherent. Despite the arrogant moralising approach of Tory ministers, and the Orwellian rhetoric of “helping” and “supporting” people who are too ill to work into any job, or face the threat of starvation and destitution, none of this will ever justify the unforgivable, steady withdrawal of lifeline support for sick and disabled people.

Baroness Meacher warned that for the most vulnerable the cut was “terrifying” and bound to lead to increased debt.

Condemning the “truly terrible” actions of the Treasury, she urged ministers to monitor the number of suicides in the year after the change comes in, adding: “I am certain there will be people who cannot face the debt and the loss of their home, who will take their lives.” Not only have the government failed to carry out an impact assessment regarding the cuts, Lord Freud said that the impact, potential increase in deaths and suicides won’t be monitored, apart from “privately” because individual details can’t be shared and because that isn’t a “useful approach”.

He went on to say “We have recently produced a large analysis on this, which I will send to the noble Baroness. That analysis makes it absolutely clear that you cannot make these causal links between the likelihood of dying—however you die—and the fact that someone is claiming benefit.”

Actually, a political refusal to investigate an established correlation between the welfare “reforms” and an increase in the mortality statistics of those hit the hardest by the cuts – sick and disabled people – is not the same thing as there being no causal link. Often, correlation implies causality and therefore such established links require further investigation. It is not possible to disprove a causal link without further investigation, either.

Whilst the government continue to deny there is a causal link between their welfare policies, austerity measures and an increase in premature deaths and suicides, they cannot deny there is a clear correlation, which warrants further research – an independent inquiry at the VERY least. But the government are hiding behind this distinction to deny any association at all between policy and policy impacts. That’s just plain wrong.

Insisting that there isn’t a “causal link” established, whilst withholding crucial evidence in parliament and from the public domain is what can at best be considered the actions and behaviours of tyrants.

 

Related reading

House of Lords debate: ESA – Monday 07 March 2016 (From 3.06pm)

Thatcher’s policies condemned for causing “unjust premature death”

MP attacks cuts hitting disabled people – Debbie Abrahams

Leading the debate against the Welfare Reform and Work Bill – 3rd reading – Debbie Abrahams

My speech at the Changes to Funding of Support for Disabled People Westminster Hall Debate – Debbie Abrahams

The government need to learn about the link between correlation and causality. Denial of culpability is not good enough.

The new Work and Health Programme: government plan social experiments to “nudge” sick and disabled people into work

A Critique of Conservative notions of “Social Research”

The DWP mortality statistics: facts, values and Conservative concept control

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Pictures courtesy of Robert Livingstone

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Fit for work assessment was trigger for suicide, coroner says

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A disabled man killed himself as a direct result of being found “fit to work” by the government’s work capability assessment, a coroner has ruled. In a report to the Department of Work and Pensions, the coroner for Inner North London demanded it take action to prevent further deaths.

The coroner’s report on the death of Michael O’Sullivan  warns of the risk of more such deaths. Michael, a 60-year-old father of two from north London, killed himself at his home after being moved from employment support onto jobseekers allowance, despite providing reports from three doctors, including his GP, that he was suffering from long-term depression and agoraphobia and had been certified as unable to work.

The coroner said that Michael’s anxiety and depression were long-term problems, but the intense anxiety that triggered his suicide was caused by his (then) recent assessment by the DWP as being fit for work.

Previously, the loss or reduction of benefits have been cited as a factor in deaths and suicides of claimants by coroners. However it is believed to be the first time the work capacity assessment (WCA) process has been blamed directly for the death of a claimant. Iain Duncan Smith can no longer deny a causal link between benefit cuts and suicide following this landmark verdict.

Michael O’Sullivan died on 24 September 2013, but his case came to light after Disability News Service reported the story.

In a document marked “sensitive”, Mary Hassell, the coroner for Inner North London, told the DWP she concluded the “trigger” for his suicide was his “fit for work” assessment and detailed her concerns over future deaths.

The report, known as a Prevention of Future Deaths or Regulation 28 report, Hassell wrote:

“I found the trigger for Mr O’Sullivan’s suicide was his recent assessment by a DWP doctor as being fit for work. During the course of the inquest, the evidence revealed matters giving rise to concerns. In my opinion, there is a risk that future deaths will occur unless action is taken.”

At an inquest into his death last year, Hassell said that O’ Sullivan was suffering from long-term anxiety and depression “but the intense anxiety which triggered his suicide was caused by his recent assessment by the Department of Work and Pensions [benefits agency] as being fit for work and his view of the likely consequences of that”.

The inquest heard that in his assessment, the Department of Work and Pensions (DWP) assessing doctor, a former orthopaedic surgeon, did not factor in the views of any of the three doctors treating O’Sullivan. She also said that he was never asked about suicidal thoughts, despite writing them down in a DWP questionnaire.

Under a heading marked “matters of concern” in her report to the DWP, Hassell said the assessing doctor did not take into account the view of any of the three doctors who were treating O’Sullivan. She said:

“However, the ultimate decision maker (who is not, I understand, medically qualified) did not request and so did not see any reports or letters from Mr O’Sullivan’s general practitioner (who had assessed him as being unfit for work), his psychiatrist or his clinical psychologist.

In my opinion, action should be taken to prevent future deaths and I believe that you and Jobcentre Plus have the power to take such action.”

In its 16-page response to the coroner’s report, the DWP admitted it had got it wrong. It said that its policy to request further evidence when a claimant mentions suicide on claim forms was “regrettably not followed in this case”.

It also said the WCA process remained under “continual review and development”, including through five independent reviews, and concluded:

“We have noted the issues in this case and will continue to monitor our policies around assessment of people with mental health problems while we await the outcome of related litigation.”

The Department of Work and Pensions has conducted at least 60 internal investigations into suicides linked to benefit changes since 2012. Last month, DWP data showed the equivalent of nearly 90 people died every month after being declared fit for work and losing their benefits between 2011 and 2014.

A Department of Work and Pensions spokesman said last Monday that improvements have been made to the system since the coroner’s report. The spokesman said:

“Following reforms to the work capability assessment, which was introduced in 2008, people are getting more tailored support to return to work instead of being written off on long-term sickness benefits as happened too often in the past.”

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People were not dying in their thousands before the introduction of the Tory austerity measures. The so-called “reforms” to the work capability test have been going on according to the DWP for the past five years, yet we see no improvement in outcomes.

Reducing a response regarding a suicide brought about by departmental and wider negligence to petty political point scoring, casualising tragic, needless and premature deaths that are linked with the welfare “reforms” and Conservative small state fetishism, is an outrage. This is not an acceptable or appropriate response from the DWP.

This tragic case along with the recorded, detailed evidence of many others, has been presented to the government by campaigners, opposition MPs, and by the parliamentary work and pensions committee as part of their inquiries related to the reforms, clearly demonstrating that government policies are causing harm to people. This case alone ought to have triggered an independent inquiry regarding the impact of the “reforms”, but instead we are presented with persistent and aggressive denials of a causal link between an increase in premature mortality and Tory policies, such as the non-medical WCA, (which was  re-designed by the Tories when they re-contracted Atos to deny people their entitlement to benefits,) without any grounds for those denials whatsoever.

This is a government that has abdicated its responsibility – its democratic, ethical, moral and legal duties towards those people who need the most support. Furthermore, by modelling such callous indifference towards the social groups that they have also stigmatised and scapegoated, this government are also pushing public moral and rational boundaries, too,  leading to desensitisation, and a normalisation of prejudice, discrimination and of a government’s actions that are designed to intentionally punish and coerce unemployed, sick and disabled people rather than support them.

We must challenge that and keep pushing back, because the alternative –  bystander apathy – is untenable. To do nothing is to give a silent consent to a continuing and devastating cumulative policy impact on the poorest and weakest citizens that is tantamount to eugenics, albeit by stealth.

Kitty

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Pictures courtesy of  Robert Livingstone.

Employment Support Allowance claim update: Exceptional Circumstances – Regulations 25 and 31 and Universal Credit.

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Regulations 25 and 31 will replace the old Special Regulations 29 and 35 when Universal Credit is rolled out.

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 Contributions-based ESA. This means that most of you will use Regulations 29 and 35 at this time.

Income-based ESA will be replaced by Universal Credit, as it is rolled out, but there will be the same additional financial components added as we currently have for ESA – 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.

Here are the new Universal Credit Exceptional Circumstances Regulations in full:

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.

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Advice regarding EXCEPTIONAL CIRCUMSTANCES – Regulations 25, 29 31 and 35. 

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, 25 for U.C. ) or work-related activity (Regulation 35 for ongoing ESA claims, 31 for U.C.).

These two essential paragraphs are an important part of both the old and new Regulations, and can be used in the same way, 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 is your circumstance, 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.”

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.

Legally, both of these exemptions must be applied to all cases where a “serious” or “substantial” risk of harm is likely, should the person be found to be either capable of work, or capable of work-related activity. This is the statutory interpretation.

Regulations 25 and 29 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 if you are unable to meet the conditions of eligibility for your ESA, while Regulations 35 and 31 cover people who are not fit 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.

So do bear in mind that Regulations 31 and 35 are specifically related to limited capability of work-related activity, and that you will need to invoke 35, (or 31 if you are now claiming Universal Credit, and not eligible for contributions-based ESA,) if your circumstances are such that the support group is appropriate, rather than the work-related activity group (WRAG), as work-related activity would present a substantial or serious risk of harm.

You can ask your doctor to support you with this, as 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.

This is based on the Statutory Interpretation of the Regulations.

Here are some links to download and print some documents that you can 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:

Please remember: Regulations 29 and 35 still apply to all ongoing cases, and will remain in use for all contributions-based ESA claims. Regulations 25 and 31 apply to Universal credit.

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 sharing these very helpful documents.

If you are one of the few claiming Universal Credit in one of the pilot areas, and you are not entitled to contribution-based ESA then Regulations 25 and 31 now apply, and you will need to amend the templates, as they currently reflect the Regulations most likely to be applicable at this time.

As yet we don’t know for sure when and even if Universal Credit will be rolled out in full. I will update this article when we know more about this.

For all ongoing cases where Universal Credit does NOT apply, (which is the majority at present) 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.

Some thoughts on the implications of the other changes.

30.—(1) For the purposes of Part 1 of the Act, where, by reason of a claimant’s physical or mental condition, at least one of the descriptors set out in Schedule 3 applies to the claimant, the claimant has limited capability for work-related activity and the limitation must be such that it is not reasonable to require that claimant to undertake such activity.

(2) A descriptor applies to a claimant if that descriptor applies to the claimant for the majority of the time or, as the case may be, on the majority of the occasions on which the claimant undertakes or attempts to undertake the activity described by that descriptor.

(3) In determining whether a descriptor applies to a claimant, the claimant is to be assessed as if—

(a) the claimant were fitted with or wearing any prosthesis with which the claimant is normally fitted or normally wears; or, as the case may be

(b) wearing or using any aid or appliance which is normally, or could reasonably be expected to be, worn or used

___________________

Two broad concerns arising in light of the Regulation changes are that there is significant scope for the assessor to speculate and make assumptions about those being assessed, and there is a limitation regarding what symptoms can be considered in which parts of the assessment (as is evident in the new descriptors.) Such consideration has been narrowed in focus and subdued by the amendments, which clearly and strictly polarise illnesses into physical or mental categories. Both of these problems may lead to an over-estimation of a person’s capability for work.

The exceptional circumstances provision originally in Regulation 29 has been changed. Trying to demonstrate that a person would be at “substantial risk” in a workplace will now also involve considering whether any “reasonable adjustments” in the workplace or if prescribed medication would significantly reduce such a risk. The amendments would allow any potential risk resulting from a person being found fit for work to be ignored if a reasonable adjustment, or taking prescribed medication would hypothetically offer significant reduction of that risk.

The Atos assessor has previously been able to assume that a person could use some aids that they do not actually use, and theoretically determine what the person’s capability would be using those aids. Many people have experienced the difficulties presented by the “imaginary wheelchair test” – the assessor decides they would be mobile with a manual wheelchair, often contrary to the appropriateness or availability of a wheelchair for that person. The amendments to the Regulations have extended this to include imaginary prostheses and guide dogs under the “could reasonably be used” criteria to most parts of the assessment.

Any “reasonable adjustments” to “the workplace” are very hypothetical and can never be guaranteed. Nor may they necessarily be effective in the event that they are actually carried out. The assessor does not know the person claiming ESA or their long term medical circumstances, or whether the use of such aids would be consistent with their current management programme, or whether any theoretical aids would be suitable in reality.

There is no guarantee that in the event of a person obtaining these aids  they would actually be capable of work. This imaginary exercise will not be discussed with the person making the claim; they are simply going to be refused benefit on the basis of hypothetical aids and appliances. “Reasonable adjustment” may include cases where the risk is still considerable, if it is significantly reduced by hypothetical adjustments, it can be ignored. There is no explicitly stated requirement to take into account side-effects of medication.

This is worrying for more than one reason. There seems to be an implicit suggestion that medication ought to be enforced. For obvious reasons that is very troubling. It has serious implications for issues of medical consent, and patient rights.

The amendments made to the Work Capability Assessment descriptors will mean that claimants can only score on either the physical descriptor for a physical illness or the mental descriptor for a mental illness. Part One of the Work Capability Assessment activities will only accommodate the effects of “a specific bodily disease or disablement,” while Part Two of the WCA  will only allow consideration of the effects of “a specific mental illness or disablement.” Similarly, only side-effects of treatment for physical conditions will be considered in Part One, and side-effects of treatment for mental illnesses only in Part Two.

Using prescribed medication as a purely theoretical “reasonable adjustment” provides scope for a lot of speculation presented as “evidence” regarding the efficacy of medications. For many of us, medication is “experimental” and often trialled initially, and effectiveness and side-effects vary hugely from person to person. Medications for mental health problems produce physical side-effects, and vice-versa. A person who suffers severe chronic pain from physical illness or injury may take strong pain medications that severely compromise their cognitive ability, but it would seem the amended regulations would require that this effect is disregarded.

Many illnesses that are not yet well-understood have a full spectrum of physical, mental and cognitive symptoms. Examples include autoimmune illnesses such as Rheumatoid Arthritis, Lupus, MS, ME and Fibromyalgia. There is often a fundamental interconnectedness of physical and mental health, yet the amendments demand a clean separation of physical, mental and cognitive effects of illness.

As stated, medications for these illnesses are invariably “experimental”, and the efficacy of treatments is widely unpredictable, as are the potentially severe and often “black box” side-effects. For example, a common treatment for autoimmune illness such as Lupus and Rheumatoid Arthritis is a chemotherapy called methotrexate, usually given in a weekly dose, by injection or taken orally. Side-effects commonly include nausea and vomiting, ulcerative stomatitis, dizziness, drowsiness, headache, hair loss, blurred vision or sudden loss of vision, seizures, confusion, weakness or difficulty moving one or both sides of the body, loss of consciousness, vulnerability to overwhelming infections such as pneumonia.

Less common side effects of methotrexate include sudden death, liver failure, kidney damage and lung fibrosis. There is no way of predicting most of these side-effects. Of course this treatment is not handed out like sweets by doctors, and there is very careful consideration given to the risks carried with the drug, which are carefully weighed against the substantial risks presented by the serious illness to be treated.

Many autoimmune illnesses may also cause death, lung fibrosis, kidney and liver damage and blindness. How can it be that a person so ill, and taking such a risky medication could be deemed even remotely capable of work, and that such a treatment could be seen as a “reasonable adjustment” to allow that judgement?

A grave concern is that this will mean additional challenges for many sick and disabled people at a time when the Tribunal Service is hugely overworked and struggling to accommodate the sheer volume of appeals regarding wrongful decisions, and the waiting times for Hearings are stretching out, leaving very vulnerable people without the essential support they need to live. Now there is the additional requirement for providing evidence regarding the “reasonable adjustments” amendment, and I doubt that hypothetical evidence will suffice.

It seems that the Government have simply extended legislative opportunities to further reduce “eligibility” for ESA. I don’t believe these changes and omissions are casual: they are about limiting successful claims and appeal outcomes.

From the moment we begin a claim by filling out the form, we know that every single question asked is designed to justify ending our claim for ESA and aimed at passing us as “fit for work.” That is what Atos are contracted to do by the Government. This is not a genuine medical assessment, but rather, a created opportunity for the Government to take away the financial support that we are entitled to. Every change in legislation related to benefits and support for sick and disabled people that has been made by the Coalition has been aimed at limiting successful outcomes for claims for those benefits.

It’s therefore important that we explore the implications of legislative changes like this, because the additional information helps us to pre-empt potential new difficulties we are likely to encounter with the claim process, it allows us to plan in advance how we can find effective ways around anticipated problems, and so improve the outcomes of our ESA claims.

Further information:
The Black Triangle Campaign:  Applying ESA Regulations 29 and 35 (see note for 25 and 31)
Employment and Support Allowance: 2013 Regulations in full Explanatory memorandum to all benefits 2013: Full legislation document  Exceptional circumstances: Employment and Support Allowance Regulation 25
Exceptional Circumstances: Employment and Support Regulation 31
Changes to the work Capability Assessment : Regulation 15
Rapid response EDM: Commons’ motion to annul the Employment and Support Allowance regulations
The new Work Capability Assessment 2013:DWP Guide
The Employment and  Support Allowance Regulations 2008 (as amended) – judiciary.gov.uk Clause 99 and important changes to the appeal process: Clause 99, Catch 22 – The ESA Mandatory Second Revision and Appeals

V-STARTU

Written by Sue Jones.

With huge thanks to Jane Clout for her considerable support with this in clarifying the circumstances regarding which Regulations may be used. It’s important to know that the new Regulations won’t be applicable to most people until Universal Credit has been rolled out.

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