Tag: Capita

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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Woman who was refused PIP died, family successfully sue Capita for £10,000

victoria

The week after she died, a tribunal panel overturned the Department for Work and Pensions’ decision, deciding that Victoria was eligible for a PIP award that she had been refused.

Victoria Smith [pictured] passed away last July aged just 33, within weeks of being told she was not eligible for Personal Independence Payments (PIP). Her family have been awarded £10,000 in damages

Victoria’s mother, Sue Kemlo, sued Capita for making inaccurate statements on Victoria’s health assessment. However, Capita told the BBC it stood by the original decision.

Her mother, Sue Kemlo, told the BBC: “If they hadn’t cut her PIP, my daughter would still be here.” Victoria suffered from agoraphobia and fibromyalgia, which left her in constant and severe pain.

The Department for Work and Pensions (DWP) wrote to Victoria in early 2018 to tell her she needed to be re-assessed for the benefit, which is intended to help with the additional costs of having a disability, and to support disabled people in living as independently as possible.

In March, 2018, Victoria was re-assessed at home by a healthcare professional employed by Capita. The assessment led the DWP to decide she was no longer eligible for PIP, a conclusion her mother said “was a pack of lies”.

Victoria immediately asked for a mandatory review but was again refused her PIP award by the DWP. She received the decision in June, shortly after she was admitted to hospital. The decision “destroyed” her, her mother said.

“When they took away her ability to look after herself, to have a way of life, she gave up.”

Victoria died of a brain haemorrhage. However, her doctors told the family that her underlying conditions, particularly the fibromyalgia, had deteriorated as well.

The week after she died, a tribunal panel overturned the DWP’s decision, deciding that Victoria was eligible for PIP.

Furious with the conclusions the Capita employee had reached, Victoria’s mother took legal action against the company for maladministration; on the grounds that the Capita assessor made inaccurate statements in the report.

The family has now been awarded £10,000 in damages.

“I didn’t do it for the money,” said Mrs Kemlo.

“I did it for them to admit they were wrong, to get some justice for my daughter, because (it’s) only ever been about justice for Victoria.”

In a statement to the BBC, Capita said: “We offer our deepest condolences to the family in this very tragic case.

“We have reviewed this at a senior clinical level and we are confident that our report was correct based on the information presented to us at the time of the assessment.

“Our full response to the claim was not considered by the Court as a result of a procedural issue, and as a consequence judgment in default has been entered into against us.

“We have asked the Court to investigate the procedural issue and we are expecting a response from the Court shortly.”


 

I don’t make any money from my work. I am struggling to get by, like many other ill and disabled people. But if you like, you can contribute by making a donation and help me continue to research and write informative, insightful and independent articles, and to provide support to others going through the disability assessment process, mandatory review and appeals. The smallest amount is much appreciated – thank you.

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Disabled people claiming PIP are being forced to go through two assessments

PIP pic

Benefits and Work have reported that a number of their members in recent weeks have been been made to go through a second Personal Independent Payment (PIP) assessment before a decision is made on their award, because there was a problem with the first assessment report.

One member faced a two hour assessment on Christmas Eve. In January they were contacted by Capita and told that the assessment was “incomplete” and that someone was to be “sent round to finish it.”

Capita have refused to say what information was missing and would not provide a copy of the report until it was complete.

One member told Benefits and Work:

“This has left me feeling very anxious. All they would say is that they needed further information as the last assessment was incomplete. I’m confused. I feel that they want to trip me up even though I was completely truthful about my conditions in the last assessment.”

I co-run an online group to support people going through PIP and Employment and Support Allowance claims, assessments, mandatory review and appeals. Our members are also reporting that this is happening to them, too.

One person told me: “After suffering two heart attacks and a quadruple bypass plus a brain tumour and a previous devastating head injury , which will never be “cured” he was told to apply for PIP.

“Three months later and the lady sent from a brain injury charity, to help him , phoned up the Department for Work and Pensions regarding his assessment and they denied having any knowledge of said assessment and said it will have to be done again.

“The stress is unbearable for my partner.

“Horrendous.”

Another person said: “I had my assessment in November. I rang to see why I wasn’t told a decision just before Christmas and was told I would need another assessment as the one I’d had didn’t give enough evidence to make the decision.

“I collapsed at the assessment in the examination because I was told to stand up from my wheel chair and I can’t. What more evidence do they need? I have rheumatoid arthritis and a severe spine injury, they have medical evidence from my doctor? I can’t face it all again. The stress is making me very poorly.”

Another member had almost completed their assessment when it was suddenly stopped and they were told they would have to return for a new, full assessment. The only reason they were given was that the assessment should have been done by a physiotherapist instead of a nurse.

One Benefits and Work member took her son for a PIP assessment which lasted 2 hours and 15 minutes. However, this person was then told that the assessor had not filed the report so they would have to return for a new assessment.

The new assessor took 1 hour and 30 minutes. The assessor claimed that she had the original report on screen and would take information from that, but she did not actually do so. As a result our member did not give some of the information that had been covered in the first report.

The member said:

“I was too worried at the time to complain but I did contact my MP.”

Another member was contacted after their assessment in December and told that she would have to attend a second assessment in February before a decision on her claim could be made. When they asked why:

“I was told it was to do a more robust assessment and that if I didn’t attend they would refuse my claim.”

The person concerned is understandably very anxious about the repeat assessment:

“I am in total meltdown mode and if the first one is anything to go by I’m dreading the next one. I was so stressed and anxious I could barely control myself but did manage to answer all the questions they asked.”

One member’s 16 year old child is about to be moved from Disability Living Allowance (DLA) to PIP. They had an assessment in December but have now been asked to attend a second one before a decision is made.

The member commented:

“So I guess we just go to the 2nd assessment and do it all again then? Just what a overly anxious child wants eh!!”

Another member had their PIP assessment in December as part of the process of moving from an indefinite DLA award. However, in January they were contacted by Capita who said that the DWP had requested further information and they would have to have a further assessment. Capita have not said what further information is needed or why it can’t be collected by phone.

The member said:

“I am sick with worry I was already suffering with even more anxiety than usual due to going through this process.”

The PIP assessment process is enormously stressful for many people. To have to go through it twice with no adequate explanation as to why seems unfair and unreasonable. At the very least, people should receive a letter of apology and an explanation of why a telephone conversation would not be sufficient to put matters right.

Please consider complaining to your MP if this happens to you.

Benefits and Work are interested in hearing from anyone else who has been forced to attend two assessments.  Please click on the link and leave your comment here.

You can also leave a comment on this article, as I will be sending this information to government and shadow ministers.

 


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Barnet Capita contractor on fraud charge

Unison members working for Barnet Council protest over outsourcing

Unison members working for Barnet Council protest over outsourcing.

The Times Series reports that a former member of staff on a council contract with outsourcing firm Capita has been charged in a £2 million fraud case.

The former Barnet Council employee, on a Regional Enterprise contract with the outsourcer, appeared at Willesden Magistrates’ Court on Tuesday, July 3, to face two separate charges of fraud by abuse of position. 

The Conservative Barnet council has become something of a “commissioning council”, which means outsourcing pretty much everything it can. Capita has already come under fire for ‘serious failings’ in pension management and has been fined by the council over accounting failures.

In May, the council was called on to take financial reporting back from Capita’s control after a report revealed a £9.5 million black hole had opened up in the local authority’s budget for the coming financial year.

The council’s policy and resources committee discussed the Capita contract review and considered a range of options for service delivery at a meeting on July 19. The review of the contract with the private provider could see seven services brought back under the council’s control after a report admitted there were areas of ‘persistent poor performance’ in the outsourcing model.

If it decides to go ahead with the review report’s recommendations, finance, strategic HR, management of the council’s land and property, highways, regeneration, strategic planning and cemeteries and crematoriums will be brought back in-house. The council’s Labour group, which opposed the outsourcing plans before the contracts were signed, said it would support plans to bring them back in-house. 

Labour Cllr Barry Rawlings said: “The Conservatives clearly decided not to admit the failure of their central ideology of mass-outsourcing during the local elections, which raises the question as to how honest they were with voters in the run-up to the local elections. 

“Mass outsourcing was a gamble made by the Conservatives. It, and they, have failed the people of Barnet. It is time to take back control.”

Barnet Council claims the partnership with the company has led to significant financial savings, as well as efficiencies and improvements across a range of services.

The Regional Enterprise (Re) deal with Capita was signed in 2013 and covers a range of services, including environmental health, regeneration and highways.

A Barnet Council spokesperson said: “The council has recovered the money from Re as a result of this alleged fraud, and we took immediate action to increase financial controls and monitoring of the outsourced finance service.

“We have also commissioned an independent review of financial controls, the results of which will be presented to the Council’s Audit Committee on Tuesday, 17 July.”

The council have confirmed that the total value of money obtained fraudulently was over £2 million.

The case has been referred to Harrow Crown Court, where the next hearing will take place on Tuesday, July 31.

 

Related

Neoliberalism and corruption: hidden in plain sight

 


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New discriminatory regulations for PIP come into effect today

westminster-20121020-00081

A Department for Work and Pensions spokesperson has denied allegations that people with mental health conditions claiming Personal Independence Payment (PIP) are being treated differently to those with physical disabilities: “At the core of PIP’s design is the principle that mental health conditions should be given the same recognition as physical ones”, the spokesperson said.

“In fact, there are more people with mental health conditions receiving the higher rates of both PIP components than the DLA equivalents.

This Government is also investing more in mental health than ever before – spending more than £11 billion this year.”

However, following two independent tribunal rulings that the Department for Work and Pensions (DWP) should expand the scope and eligibility criteria of PIP, which helps both in-work and out-of work disabled people fund their additional living costs, the government is rushing in an “urgent change” to the law to prevent many people with mental health conditions being awarded the mobility component of PIP. The court held that people with conditions such as severe anxiety can qualify for the enhanced rate of the mobility component, on the basis of problems with “planning and following a journey”, or “going out”. 

The government’s new regulations will reverse the recent tribunal ruling and will mean that people with mental health conditions such as severe anxiety who can go outdoors, even if they need to have someone with them, are much less likely to get an award of even the standard rate of the PIP mobility component. The regulations also make changes to the way that the descriptors relating to taking medication are interpreted, again in response to a ruling by a tribunal in favour of disabled people.

The first tribunal said more points should be available in the “mobility” element for people who suffer “overwhelming psychological distress” when travelling alone. The second tribunal recommended more points in the “daily living” element for people who need help to take medication and monitor a health condition. 

It’s worth noting that the Coalition Government enshrined in law a commitment to parity of esteem for mental and physical health in the Health and Social Care Act 2012. In January 2014 it published the policy paper Closing the Gap: priorities for essential change in mental health (Department of Health, 2014), which sets out 25 priorities for change in how children and adults with mental health problems are supported and cared for. The limiting changes to PIP legislation does not reflect that commitment.  

PIP is defined by Capita, the private company employed by the government to carry out “functional assessments of disabled people as “a non means tested benefit for people with a long-term health condition or impairment, whether physical, sensory, mental, cognitive, intellectual, or any combination of these.” It is an essential financial support towards the extra costs that ill and disabled people face, to help them lead as socially and economically inclusive, active and independent lives as possible.

Who will be affected by the reversal of the tribunal rulings?

As I reported previously, from 16 March (today)  the law will be changed so that the phrase “For reasons other than psychological distress” will be added to the start of descriptors c, d and f in relation to “Planning and following journeys” on the PIP form. 

New guidelines circulated by the DWP instruct assessors to disregard the physical impact of mental illness, in relation to how the impairments affect a person’s mobility in completing a journey unaccompanied, which will effectively exclude them from eligibility to the higher mobility component of PIP.

This means that claimants with severe mental illness that impacts on their mobility will be refused the same level of financial support as people with physical disabilities.

It effectively means that people suffering with debilitating mental health conditions are to be denied equal access to the disability benefits system.

People with the following conditions are likely to be affected by the reversal of the independent tribunal’s ruling regarding PIP mobility awards, with conditions in the general category of “severe psychological distress”:

Mood disorders – Other / type not known, Psychotic disorders – Other / type not known, Schizophrenia, Schizoaffective disorder, Phobia – Social Panic disorder, Learning disability – Other / type not known, Generalized anxiety disorder, Agoraphobia, Alcohol misuse, Anxiety and depressive disorders – mixed Anxiety disorders – Other / type not known, Autism, Bipolar affective disorder (Hypomania / Mania), Cognitive disorder due to stroke, Cognitive disorders – Other / type not known, Dementia, Depressive disorder, Drug misuse, Stress reaction disorders – Other / type not known, Post-traumatic stress disorder (PTSD), Phobia – Specific Personality disorder, Obsessive compulsive disorder (OCD).

A case study is included in the new guidance, which says: “Sukhi has sought an award under mobility descriptor 1f as she cannot follow the route of a familiar journey without another person.

However, the [decision maker] determines that because of the wording of mobility descriptor 1f (“for reasons other than psychological distress, cannot follow the route of a familiar journey without another person, an assistance dog or an orientation aid”), any problems following the route due to psychological distress are not relevant.”

PIP consists of two separate components – a daily living component and a mobility element – each paying a standard or enhanced rate, with the enhanced rate paying more than the lower rate. 

In response to the rulings, government have simply chosen to rewrite the law in a way that denies higher PIP payments for those claimants who would have benefited from the rulings, without consulting medical experts, disabled people, advocacy organisations and MPs – including the Work and Pensions parliamentary committee.

Responding to the new guidelines, Paul Farmer, chief executive of the mental health charity Mind, said: “The purpose of PIP is to cover the extra costs people incur because of a disability – decisions makers shouldn’t discriminate between disabilities on the basis of their cause, but decisions should be based on the impact of the disability.

People who struggle to leave the house without support may face the same costs whether their difficulties arise from, for example, a sensory disability or severe anxiety or other mental health problems.

Yet those making decisions about the level of support someone will receive will now be explicitly told to disregard those barriers if they are a result of someone’s mental health problem.”

He added: “This move undermines the Government’s commitment to look at disabled people as individuals, rather than labelling them by their condition, and completely goes against the Government’s commitment to putting mental health on an equal footing with physical health.

Meanwhile, the government’s own expert welfare advisors have said that the changes to PIP – affecting the mentally ill – should be delayed until they have been properly tested and “clearly understood”. 

The Social Security Advisory Committee (SSAC) said in their report that they are “particularly concerned” that overturning the tribunal’s ruling will cause confusion. They warn it is “not clear” how assessors will interpret the changes, raising concerns over a real possibility that claimants will not be “consistently treated”.

The committee have disputed ministers’ claims that emergency legislation must be rushed through today, suggesting the feared increase in costs has been “over-hyped”.

The government claimed the tribunal ruling would cost at least £3.7bn over the next five years – money which should go to “really disabled people who need it”, according to one minister.

The committees’ damning conclusions have sparked angry exchanges in the Commons, with some Tory MPs joining Labour and the Liberal Democrats in criticising the impact of the PIP regulations on some of the most vulnerable citizens.

However, Damian Green, the Work and Pensions Secretary, refused to allow MPs to vote on the changes – insisting that was “above my pay grade”.

Green also acknowledged “a handful of people” could now have their PIP payments cut, having been awarded higher sums in the last few months.

Debbie Abrahams, Labour’s Work and Pensions spokeswoman, said that contradicted repeated assurances – including by Theresa May – that no disabled people would lose money, with only new claimants affected.

And she said: “The Government’s decision to change the law on PIP is a clear example of the way people with mental health conditions are not given equal treatment.”

The SSAC have urged the DWP to consider “testing the proposed changes with health care professionals and decision makers to ensure the policy intent behind the regulation is clearly understood”.

They concluded: “The department should both (a) consult more widely with representative bodies and health care professionals; and (b) improve the estimate of likely impact before the changes are introduced.”

Answering an urgent question in parliament, Mr Green insisted the SSAC was “not challenging the decision” to tighten the criteria for PIP.

But he added: “We think there may be a handful of people whose appeals have gone through the courts in this very, very small period.”

While “that money will not be clawed back from them” they would receive lower PIP payments once those appeals were struck out by the new regulations.

In their recent Equality Analysis PIP assessment criteria document, the government concede that: “Since PIP is a benefit for people with a disability, impairment or long-term health condition, any changes will have a direct effect on disabled people. The vast majority of people receiving PIP are likely to be covered by the definition of “disability” in the Equality Act 2010.

By definition, therefore, the UT [upper tribunal] judgment results in higher payments to disabled people, and reversing its effect will prevent that and keep payments at the level originally intended. The difference in income will clearly make a real practical difference to most affected claimants, and (depending on factors such as their other resources) is capable of affecting their ability to be independently mobile, access services etc – all matters covered by the UN Convention on the Rights of Persons with Disabilities as set out at the start of this Analysis.”

It goes on to say in the document: “However, this does not necessarily mean that the increased payments that would result from the judgment are a fair reflection of the costs faced by those affected, or represent a fair approach as between different groups of PIP claimants.” 

I think it’s much less likely that the government’s decision to subvert the ruling of the upper tribunal reflects any consideration of a fair reflection of costs faced by those affected, or a “fair approach” between different groups of PIP claimants. 

The purpose of Upper Tribunals

The government introduced the restrictive regulations after losing two cases at tribunals, showing an utter contempt for the UK judiciary system. However, the UK tribunal system is part of the national system of administrative justice. 

Administrative law is the body of law that governs the activities of administrative agencies of government. It is designed to independently review the decisions of governments, and as such, it provides protection and promotion of fundamental rights and freedoms for citizens.

The Upper Tribunal is a superior court of record, giving it equivalent status to the High Court and it can both set precedents and can enforce its decisions (and those of the First-tier Tribunal) without the need to ask the High Court or the Court of Session to intervene. It is also the first (and only) tribunal to have the power of judicial review. (The Conservatives have a historical dislike of judicial review. See for example: The real “constitutional crisis” is Chris Grayling’s despotic tendencies and his undermining of the Rule of Law.)

The Tribunals, Courts and Enforcement Act 2007 created a new unified structure for tribunals and recognises legally qualified members of tribunals as members of the judiciary of the United Kingdom who are guaranteed continued judicial independence. This means that the judiciary is kept discrete from other branches of government. That is so that courts are not subjected to improper influence from the other branches of government, or from private or partisan interests.

Judicial Independence is vital and important to the idea of separation of powers. The intent behind this concept is to prevent the concentration of political power and provide for checks and balances. It has been significantly influenced by judicial independence principles developed by international human rights constitutional documents. in the application of the European Convention on Human Rights in British law through the Human Rights Act 1998, which came into force in the UK in 2000.

The government’s new regulations are a particularly autocratic move, aimed at simply overturning two legal rulings that the government did not like, partly because their zealotry concerning their anti-welfarism and “small state” neoliberal ideology has been challenged. The regulations were ushered in and imposed so that they would not be subjected to parliamentary scrutiny and debate or democratic dialogue with disabled people or groups and organisations that support and advocate for those with disability. 

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Work and Pensions Secretary Damian Green

Related

Two EDMs have been tabled to stop Tory cuts to disability support, with cross-party endorsement


 

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

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Terminally ill woman lost her ESA, home and all her belongings after being told she was fit for work

 


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Claire Hardwicke

Claire Hardwicke has stage four thyroid cancer. This means that it has spread to other parts of her body, and sadly, Claire was told that her cancer is terminal. She also has chronic osteoarthritis. Despite taking 80mg of morphine a day to cope, she still experiences considerable pain.

Additionally, Claire already had a life-threatening, acute allergy to latex. This means that she has to carry an EpiPen at all times, which is an epinephrine (adrenaline) injection to treat life-threatening anaphylaxis. Developing a severe allergy to latex unfortunately meant that Claire could no longer continue working as a mental health nurse. 

Claire first became ill 9 years ago with uterine/ovarian cancer, but it was the allergy that made her unemployable and ended her career as a mental-health nurse, her partner, Alan King, told me

Claire’s first bout of cancer was treated and she made a recovery, which lasted only 7 years. Sadly, the diagnosis of her more recent thyroid cancer and metastases wasn’t diagnosed until it was incurable. The tumours had spread throughout her thyroid gland, neck, lymph system and adrenal glands.   

All Claire can hope for now is palliative care, which is alleviatory only, as a cure isn’t possible. 

Unbelievably, Claire was assessed as “fit for work” by the Department for Work and Pensions (DWP) last year. Her Employment and Support Allowance was stopped. All of her financial support ended. This was despite being told by the Capita assessor (for Personal Independence Payments) that the report to the DWP would state that Claire was in need of more support, not less. 

Overnight the couple lost every bit of financial support they had previously been entitled to, so Alan decided to use what little financial resources he had left to help Claire to fulfill some of  her”Bucket List.”

The couple were forced to say goodbye to their rented bungalow and 99% of their possessions because their housing benefit was stopped. They had no income, as Claire’s Disability Living Allowance (DLA) and Employment Support Allowance (ESA) was stopped, and the Carer’s Allowance also ended.

Claire explained to me that when she lost her lifeline support, the wait for appeal hearings was over 18 months. The couple couldn’t afford to wait that long, as they had no income. They also didn’t know if Claire would survive the wait.

Claire and Alan went to visit family members around the UK before setting off, in October 2016, on a Mediterranean cruise for a month, which Alan paid for, using his credit cards. They already owed a lot of money on their credit cards, but with no income at all, the couple were facing destitution.  The incredible distress the couple suffered took its toll on Claire’s already poor health, too.   

On the return journey, both of them realised that coming all the way back to the UK – where they were homeless, with no income, and they no longer even qualified for free prescriptions – would be pointless. So the couple left the cruise when they got to Portugal, where it’s significantly warmer than the UK (and therefore less painful for Claire) – and they’ve been there ever since, living in a very basic, rented room.

Alan told me: “Claire’s cancer hasn’t claimed her life as quickly as we both had imagined, (which is good), but with medications, food and board, we’re now out of funds and out of options unless we can somehow fundraise for some subsistence.”

The couple have paid money in advance for their single room in Portugal, which covers rent until 14th March, after which time they will have absolutely nowhere to go.

Claire says: “There are new trial therapies for extreme cases of thyroid cancer like mine.

 I wish I had a pot of gold to pay for the experimental cancer therapy.
I don’t want to die, but choices and chances aren’t given to the poor people. We need a miracle, a winning lotto ticket. There should be equal opportunities for all patients.”

The treatment would possibly extend Claire’s life and improve the quality of the time she has left. She says: “I could have a chance of a longer, fuller life…. but I don’t have that option open to me….”

Tiffany Williams, a friend of Claire’s in the UK, has set up a crowdfunding page on JustGiving to raise £800 to help pay for her treatment. So far, 53% of the sum has been raised. 

It’s such a modest amount for a treatment that will make a huge difference to Claire and Alan, who have lost their home and everything else they had in the UK. Now they are at risk of losing their room in Portugal, too. 

You can make a donation at:  https://www.justgiving.com/crowdfunding/tiffany-williams

Update

Claire informs me that the gofundme collection has now closed. But for those wishing to help in some way, there is a beautiful painting of Claire by Jason Pearce, which is up for auction with funds going to her medical fees.  

She says many thanks. 

Jason Pearce is an administrator for a very popular political group, and like me, he was originally contacted and asked if a member (Alan) could post a gofundme page to raise money for treatment costs to the group, as his wife, Claire, is seriously ill. Jason agreed, and offered to help. As Jason is an artist, it was suggested that he could paint a portrait of Claire and it could then be auctioned online to help raise some more money towards Claire’s ongoing treatment.

This is Jason’s lovely painting of Claire.

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“Claire”

20″ x 16″ Mixed media on canvas.

 


My work is unfunded and I don’t make any money from it. I am disabled because of illness and struggle to get by. But you can support Politics and Insights and contribute by making a donation which will help me continue to research and write informative, insightful and independent articles, and to provide support to others.  DonatenowButton

Government guidelines for PIP assessment: a political redefinition of the word ‘objective’

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Thousands of disabled people have already lost their specialist Motability vehicles because of Conservative PIP cuts and many more are likely to be affected.

Personal Independence Payment is a non means tested benefit for people with a long-term health condition or impairment, whether physical, sensory, mental, cognitive, intellectual, or any combination of these. It is an essential financial support towards the extra costs that ill and disabled people face, to help them lead as full, active and independent lives as possible.

The Department for Work and Pensions (DWP) have issued a guidance document for providers carrying out assessments for Personal Independence Payment (PIP), which was updated last month. It can be found here: PIP Assessment Guide.

The DWP Chief Medical Officer states that this is a supplementary guidance, in addition to “the contract documents agreed with providers as part of the commercial process, providing guidance for health professionals [HPs] carrying out assessment activity and for those responsible for putting in place and delivering processes to ensure the quality of assessments.”

Words like “fair”, “quality”,  “support”, “reform” and even “objective” have been given a very subjective, highly specific Conservative semantic make-over, to signpost and reference a distinctive underpinning ideology, and to align them with neoliberal and New Right anti-welfare discourse and outcomes, over the last five years.

There is some preemptive dodging of criticism and patronising get-out clauses in the document, for example: “It must be remembered that some of the information may not be readily understood by those who are not trained and experienced HPs.”

This comment is indicative of the lack of transparency in the terms, conditions and process of assessments, and how they are generally carried out. It also emphasises the professional gap between the “health professional” employed by the state to carry out the “functional capacity” assessments in the context of a neoliberal welfare state, and medical health professionals, whose wider work is generally not directly linked to the politically defined conditionality of welfare support.

If you fundamentally disagree with any of the approach outlined in the content of the document, or the policy, it’s because you “fail to comprehend it”, simply because you haven’t trained as a HP. 

I had no idea that HPs are the only people who can work out policy outcomes and who recognise government cuts, small state ideology and general cost-cutting measures for what they are, despite the thumping Orwellian semantic shifts and language use that is all about techniques of neutralisation (where the rhetoric used obscures or “neutralises” the negative aims and harmful consequences of the policy.)

Firstly, the HPs are not so much “health professionals”, but rather, “re-trained disability analysts.” Their role entails assessing the impact of illness and disability on the “functional capacity” of individuals in direct relation to justification or refusal of a PIP award only. Furthermore, it is the decision of the HP to “determine whether any additional evidence needs to be gathered from health or other professionals supporting the claimant.”

Often at the appeal stage, it turns out HPs frequently decide not to ask for further evidence.  The DWP must take all medical evidence into account when making a decision about PIP claims. Yet the DWP say: “In many cases, appeals are granted because further medical evidence is provided.” 

However, neither HPs nor the DWP decision-makers contact people’s GP or other professionals for more information about their health condition very often. This indicates that people are having to go to court, often waiting months for their appeal to be heard, because of deliberately under-informed, poorly evidenced DWP decisions. 

Furthermore, it says in the government guidance to GPs:  “Your patient should complete the forms to support their [PIP] claim using information that they have to hand, and should not ask you for information to help them do this, or to complete the forms yourself.” 

It seems that the DWP are determined to continue making ill-informed, medically unevidenced decisions as long as they can get away with it. 

The ‘functional’ assessment

From the document: “The assessment for PIP looks at an individual’s ability to carry out a series of key everyday activities. The assessment considers the impact of a claimant’s health condition or impairment on their functional ability rather than focusing on a particular diagnosis. Benefit will not be paid on the basis of having a particular health condition or impairment but on the impact of the health condition or impairment on the claimant’s everyday life.”

This process of assessment, however, is a very speculative one, with inferences drawn from seemingly unrelated questions and assumed circumstances, such as “do you have a pet?” This translates into “can bend from the waist to feed a cat/dog” on the HP’s report to the DWP.

During examination, people are asked to perform a series of movements, and inferences are drawn from these regarding the performance of day to day tasks. The movements bear no resemblance to ordinary day to day tasks, nor do they take into account the use of aids and adaptations that people may use to carry out daily tasks.

Furthermore, the person being assessed isn’t presented with the assumptions drawn from the examination and questions, which means they are not provided with an opportunity to verify any claim made by the HP, or to say if they can manage to feed their pet “reliably, safely and consistently”, or if their family have to feed the animal for much of the time. 

From the document: “The HP should check the consistency of what is being said by using different approaches, asking questions in different ways or coming back to a previous point. When considering inconsistencies, HPs should bear in mind that some claimants may have no insight into their condition, for example claimants with cognitive or developmental impairments.”

I know of a lady who wore a gold locket. It was simply assumed at her assessment that despite her extremely arthritic fingers, and information about her pain and the lack of movement in her hands from her GP, that she had sufficient dexterity to fasten and unfasten the clasp. Had she been asked, she would have informed the HP that she never took the locket off, even in the shower. 

This approach – “checking for inconsistencies” by using indirect questioning and assumption is NOT “objective”. It is a calculated strategy to justify a starting point of disbelief and skepticism regarding the accounts provided by ill and disabled people about the impact of their conditions and disabilities on their day-to-day living. As such, it frames the entire assessment process, weighting it towards evidence gathering to justify refusing awards, rather than being “objective”.

It’s simply a method based on side-stepping and discounting people’s own accounts and experiences of their disability, and any medical evidence submitted to verify that.

This approach is also mirrored in the Work Capability Assessment, reflecting Conservative cynicism and prejudice towards sick and disabled people. (See: What you need to know about Atos Assessments – it provides a good overview from a whistle-blower of how responses to seemingly casual observations and apparently conversational questions are re-translated into “inconsistencies” which are then used to justify refusing a claim.)

The introduction of PIP was framed by New Right anti-welfarism

Secondly, “PIP is replacing Disability Living Allowance (DLA), which has become outdated and unsustainable. The introduction of PIP will ensure the benefit is more fairly targeted at those who face the greatest barriers, by introducing a simpler, fairer, more transparent and more objective assessment, carried out by health professionals” [All boldings mine].

In other words, PIP is aimed at cutting welfare costs and support for people who would previously have been eligible for Disability Living Allowance (DLA). We are told that it’s no longer possible as a society to support all disabled people who need help with the additional costs that they face simply because they are ill and disabled, so the government propose to establish those “with the greatest need” by using a more stringent assessment process, which is claimed to be fair and more “objective”.

A recent review led the government to conclude that PIP “doesn’t currently fulfil the original policy intent”, which was to cut costs and “target” the benefit to “those with the greatest need.” That originally meant a narrowing of eligibility criteria for people formerly claiming Disability Living Allowance, increasing the number of reassessments required, and limiting the number of successful claims.

Controversially, the cuts to disability benefits (including the £30 per week cut from those claiming ESA in work related activity group) will fund tax cuts for the most affluent – the top 7% of earners. The chancellor raised the threshold at which people start paying 40p tax, in a move that will probably see many wealthier people pulled out of the higher rate of income tax. Osborne said he wanted to “accelerate progress” towards the Conservative’s manifesto pledge of raising the threshold for the 40p rate to £50,000 in 2020. 

Prior to the introduction of PIP, Esther McVey stated that of the initial 560,000 claimants to be reassessed by October 2015, 330,000 of these are targeted to either lose their benefit altogether or see their payments reduced. Of course the ever-shrinking category of “those with the greatest need” simply reflects a government that has made a partisan political decision to cut disabled people’s essential income to fund a financial gift to the wealthiest citizens. There is no justification for this decision, nor is it “fair.”

Fiona Colegrave, who is chief medical adviser, clinical governance and in charge of training for PIP at Capita, says: “As a disability assessor (DA), you are required to assess objectively how someone’s health conditions affect them and submit a report that is fair, reliable and can be justified with evidence because, if necessary, it may need to be scrutinised through an appeals process.

For these reasons, it is essential we equip DAs with the skills required to manage the assessment process, including: time management; questioning techniques; non-advocacy; collating all available evidence and identifying contradictions; and using an analytical but empathetic approach.

It is important for DAs to establish a rapport with the claimant, so that claimants feel like they have been able to express, in their own words, how their disability affects them and so they know that a DA will produce a report that accurately reflects their functional ability.”

Only “feel like”? Feedback from “claimants” says that DAs do NOT accurately reflect their “functional ability” in reports. And note the reductive use of the word  “claimant” – language use that places the other at a psychological distance from the author and administrators, objectifying them, as if people claiming PIP and other benefits are a homogenous group of people, bound by characteristics rather than circumstances, in a context of political decision-making.

It becomes easier to disassociate from someone you view “objectively” and to distance yourself from the impact of your calculated and target-led decision-making, constrained within a highly political framework. Such an objectification of a person or group of people serves to de-empathise us, which is a key characteristic requirement of neoliberal ideology, embedded in inhumane “small state” policy and extended via administrative (and outsourced, privatised) practices. It leaves us much less likely to relate to the circumstances, emotions or accept the needs and choices of others.

Surely a considerable part of our experience of being objectively diagnosed as ill and/or disabled, in any case, is a person’s subjective experience of it, rather than categories and counts; quantifiable, reductive and speculative statements about how we may perform highly specific tasks.

Quantitative medical evidence is important, because it does often give a general indication of conditions that would entail loss of function. But considering medical evidence isn’t a central part of the assessment process. Whether or not we can perform certain tasks, and inferences drawn from that are the central considerations for PIP eligibility.

Many conditions “fluctuate” – they vary so much that it’s difficult to assess performance of specific tasks consistently. Many conditions become progressively worse at a varied pace, often leaving little scope for a person developing coping strategies and adapting their everyday lives to the changes as they happen, such as a progressive loss of mobility, cognitive impairment, mood changes, anxiety, depression, sleep disruption and other psychological impacts, and the increasing pain and fatigue that they may experience.   

If the process were genuinely “fair, accurate and objective” then there would be no need for mandatory reviews and scrutiny through the appeals process. The introduction of the mandatory review – another layer of bureaucracy and a barrier to justice, where the DWP decide whether their first decision should be changed – has deterred many from appealing wrong decisions.

Those making the decisions about PIP awards are: “trained DWP staff who are familiar with the legislation governing PIP, but who do not have a healthcare background. The HP enables CMs to make fair and accurate decisions by providing impartial, objective and justified advice.

The PIP assessment is geared towards looking for “inconsistencies” in “functional limitations”. For example, if you say you can’t sit unaided for half an hour, but then say that you watch soaps on TV, it will be assumed you sit unaided for at least half an hour to watch TV, and that will be classed as a “discrepancy between the reported need and the actual needs of the claimant.”

The whole assessment is set up and designed to look for “inconsistencies.” In other words, the assessor is looking for any excuse to justify a decision that you are not among those in “greatest need” for a PIP award. The entire process happens within a framework of reducing welfare costs, after all. This makes a mockery of the government’s fondness for using the word “objective.”

What can we do to try to counter the state bias towards political cost-cutting, which is embedded in the assessment process? 

Well, we can use the guidelines and existing legislation to ensure that we are heard clearly. We can also raise awareness that, whilst most ill and disabled people tend to emphasise how well we cope, and remain positive about what we can do independently, and we often tend to understate our needs for support, in assessment situations, that tendency is likely to be used to trivialise the impact of our condition and disabilities on day-to-day “functioning.”

Reliability

The government says in the PIP handbook: “For a descriptor to apply to a claimant, they must be able to reliably complete the activity as described in the descriptor. Reliably means whether they can do so:

 safely – in a manner unlikely to cause harm to themselves or to another person, either during or after completion of the activity

 to an acceptable standard

 repeatedly – as often as is reasonably required, and

 in a reasonable time period – no more than twice as long as the maximum period that a non-disabled person would normally take to complete that activity.” 

If you cannot complete an activity reliably, safely and repeatedly, as outlined, then you must be regarded as unable to complete that task at all.  The reliability criteria are an important key protection for disabled people claiming both PIP and Employment and Support Allowance (ESA).

From the document: “Symptoms such as pain, fatigue and breathlessness should be considered when determining whether an activity can be carried out repeatedly. While these symptoms may not necessarily stop the claimant carrying out the activity in the first instance, they may be an indication that it cannot be done as often as is required.”

And: “The following situations highlight examples where an individual may be considered unable to repeatedly complete a descriptor in the way described due to the impact this would have:

A person who is able to stand and move 20 metres unaided, but is unable to repeat it again that day cannot do it repeatedly as you would reasonably expect people to move 20 metres more than once a day • A person who is able to prepare a meal, but the exhaustion from doing so means they cannot then repeat the activity at subsequent meal times on the same day. This means they cannot complete the activity repeatedly as it is reasonable to expect people to prepare a meal more than once a day.”

This also applies to people with mental health conditions, which may also impact on a person being able to carry out tasks reliably, repeatedly and safely.

Time periods, fluctuations and descriptor choices

The document says: “The impact of most health conditions and disabilities can fluctuate. Taking a view of ability over a longer period of time helps to iron out fluctuations and presents a more coherent picture of disabling effects. The descriptor choice should be based on consideration of a 12-month period.

This should correlate with the Qualifying Period and Prospective Test for the benefit – so in the 3 months before the assessment and in the 9 months after. A scoring descriptor can apply to claimants in an activity where their impairment(s) affect(s) their ability to complete an activity, at some stage of the PIP regulations.

 The following rules apply: If one descriptor in an activity is likely to apply on more than 50% of the days in the 12-month period – the activity can be completed in the way described on more than 50% of days – then that descriptor should be chosen.

If more than one descriptor in an activity is likely to apply on more than 50% of the days in the period, then the descriptor chosen should be the one that is the highest scoring. For example, if D applies on 100% of days and E on 70% of days, E is selected. Where one single descriptor in an activity is likely to not be satisfied on more than 50% of days, but a number of different scoring descriptors in that activity together are likely to be satisfied on more than 50% of days, the descriptor likely to be satisfied for the highest proportion of the time should be selected.

For example if B applies on 20% of days, D on 30% of days and E on 5% of days, D is selected. If someone is awaiting treatment or further intervention, it can be difficult to accurately predict its level of success or whether it will even occur. Descriptor choices should therefore be based on the likely continuing impact of the health condition or disability as if any treatment or further intervention has not occurred.

The timing of the activity should be considered, and whether the claimant can carry out the activity when they need to do it. For example, if taking medication in the morning (such as painkillers) allows the individual to carry out activities reliably when they need to throughout the day, although they would be unable to carry out the activity for part of the day (before they take the painkillers), the individual can still complete the activity reliably when required and therefore should receive the appropriate descriptor.”

Again, “fluctuating conditions” include many mental health conditions.

Risk and safety

“When considering whether an activity can be carried out safely it is important to consider the risk of a serious adverse event occurring. However, the risk that a serious adverse event may occur due to impairments is insufficient – the adverse event has to be likely to occur.”

Even if complex probability calculations were used – and I am certain HPs are unlikely to have been trained to use such formulae – there is no “objective” way of calculating risk of serious “adverse” events over time.

However, it is not such a big inferential leap to recognise that continually cutting essential lifeline support for sick and disabled people will ultimately lead to harm, distress, hardship and other negative consequences for individuals and will have wider social, cultural and economic “adverse” consequences, too.

dpac

“Making work pay” for whom?

See also:

PIP Assessment Guide A DWP guidance document for providers

Personal Independence Payment handbook

Government Toolkit of information for support organisations

Relevant:

PIP and the Tory monologue

Government plans further brutal cuts to disability support

Consultation as government seek to limit disabled people’s eligibility for Personal Independence Payment

Second Independent Review of Personal Independence Payment assessment


 

I don’t make any money from my work. I’m a disabled person with lupus, and I’m stuggling to get by. But you can help by making a donation and enable me to continue to research and write informative, insightful and independent articles, and to provide support to others going through disability benefit assessment processes and appeals. The smallest amount is much appreciated – thank you.

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