Tag: Robert Livingstone

An inclusive well done to all who worked to bring about the UN Inquiry into the systematic and grave violations of disabled people’s human rights

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I reported last August that the United Nations is to carry out an unprecedented inquiry into “systematic and grave violations” of disabled people’s human rights by the UK government. The UK is the first developed country to face such an inquiry, a fact which should be a source of shame for the Conservatives.

Many campaigners have been concerned for a long time by the disproportionate impact of the Tory-led cuts on disabled people. Many of those campaigners have themselves been adversely affected by the Tory’s draconian welfare cuts, myself included.

My own experiences of the Government’s Work Capability Assessment process led to a deterioration in my health in 2011. (I have lupus, a chronic and life-threatening autoimmune illness). I was wrongly assessed as fit for work, after being forced to give up my job as a mental health social worker because I was deemed too ill to work by my doctor, and my benefit was withdrawn – my only source of income. I appealed and after waiting nine months for the tribunal, I won.

Since then I have worked to support others going through this often harrowing and extremely punitive process. I co-run a group on Facebook called ESA/DLA, which offers support and free legal advice to sick and disabled people facing adverse circumstances because of the draconian Tory policies. The other administrators are Tracey Flynn, who is a qualified human rights specialist, Robert Livingstone, a friend and fellow campaigner, and Sonia Wilson, who originally set the group up. We are all ill and affected by disabilty. We welcome the United Nations inquiry, and both Tracey and I have made our own detailed submissions to the UN.

I reported in 2013 that the Joint Parliamentary Committee on Human Rights conducted an inquiry into the UK Government’s implementation of Article 19 of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) – the right to live independently and to be included in the community. The inquiry which began in 2011 has received evidence from over 300 witnesses.

As I reported last month, the UN inquiry has taken place under the Convention’s Optional Protocol on the Rights of Persons with Disabilities, which is a side-agreement to the Convention on the Rights of Persons with Disabilities. It was adopted on 13 December 2006, and entered into force at the same time as its parent Convention on 3 May 2008. As of July 2015, it has 92 signatories and 87 state parties.

The Optional Protocol establishes an individual complaints mechanism for the Convention similar to that of other Conventions. But this Protocol also accepts individual economic, social and cultural rights. Parties agree to recognise the competence of the Committee on the Rights of Persons with Disabilities to consider complaints from individuals or groups who claim their rights under the Convention have been violated. The Committee can request information from and make recommendations to a party.

In addition, parties may permit the Committee to investigate, report on and make recommendations on “grave or systematic violations” of the Convention. The mechanism has allowed many disabled campaigners to submit reports and evidence to the United Nations, including myself.

The inquiry has arisen because of the hard work of many campaigners, since 2012. As well as collective contributions from prominent disability rights groups such as Disabled People Against the Cuts (DPAC), many other groups and independent campaigners have also worked very hard to make this inquiry happen, and have submitted evidence to the UN. That needs to be acknowledged, we need to be inclusive and celebrate the achievement of everyone who has collaborated and contributed to this.

I would like to say a special and personal thank you to Samuel Miller, a Canadian disability rights specialist who has supported many campaigners here in the UK, and who also recognised the retrogressive and draconian nature of Tory policies. Samuel has worked hard to submit reports and evidence to the UN over the last few years, he has included and incorporated the work of other campaigners, such as myself, as well as supporting other campaigners with their own independent submissions.

The WOW campaign also deserve a massive thank you for their work in raising awareness of the need for a cumulative impact assessment of the welfare “reforms”. Another thank you goes to Jane Young, for her work and leading authorship of the Dignity and Opportunity for All: Securing the rights of disabled people in the austerity era report for the Just Fair consortium.

A massive thank you to everyone who has contributed to awareness raising and campaigning for the rights of disabled people, many have worked so hard, independently, unsupported and with quiet determination and strength.

Every single contribution is precious and every effort is valued and deserves recognition, inclusion and thanks.

Another personal thanks goes to Dr Simon Duffy, director of think tank The Centre for Welfare Reform for his research and hard work. He demonstrated through independent research carried out since 2010 that the UK Government has targeted cuts on people in poverty and people with disabilities.

Many of us have consistently and repeatedly pointed to the disproportionate, negative impact of the bedroom tax on sick and disabled people; the closure of the Independent Living Fund (ILF); the political stigmatisation of sick and disabled people and the role played by the media in inflaming disability hate crime; the extent of cuts to local authority care funding; the government’s persistent unwillingness to carry out cumulative impact assessment of its “reforms” on sick and disabled people; the impact of benefit sanctions on disabled people; delays in benefit assessments; and the government’s reluctance to monitor disabled people found fit for work and who have lost their lifeline benefits – their only means of support.

Dr Duffy said:

“In fact the people with the most severe disabilities have faced cuts several times greater than those faced by cuts to the average citizen. This policy has been made even worse by processes of assessment and sanctions that are experienced as stigmatising and bullying.

The government has utterly failed to find jobs for the people they target – people who are often very sick, who have disabilities or who have mental health problems.

Instead we are seeing worrying signs that they are increasing rates of illness, suicide and poverty.”

In December 2014, the UN Human Rights Council created the role of UN Special Rapporteur on the rights of persons with disabilities. Part of the Special Rapporteur’s broad mandate is to report annually to the Human Rights Council and General Assembly with recommendations on how to better promote and protect the rights of persons with disabilities.

The Special Rapporteur, Catalina Devandas Aguilar, will be coming to the UK in the next couple of months to gather further evidence of the grave and systematic  violations of disabled people’s human rights.

United Nations (UN) investigations are conducted confidentially, I’ve already submitted evidence. Anyone wishing to make a submission may contact the UN here:

Catalina Devandas Aguilar
Special rapporteur on the rights of persons with disabilities
Address: OHCHR-UNOG; CH-1211 Geneva 10, Switzerland
Email: sr.disability@ohchr.org

Witnesses will be asked to sign an agreement to prevent them from speaking about the meeting with the UN rapporteurs, or identifying who gave evidence. The UN said that confidentiality is necessary to secure the co-operation of the host country and importantly, to protect witnesses.

Evidence submitted to the inquiry, its subsequent report to the UK government and the government’s response will not be published until the CRPD meets to discuss the inquiry in Geneva in 2017.

 

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Images courtesy of Robert Livingstone

UN officials to visit UK over coming months to investigate whether Iain Duncan Smith’s “reforms” to disability benefits are compatible with Human Rights

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I reported last year that the UK has become the first country to face a United Nations inquiry into disability rights violations. A formal investigation was launched by the United Nation’s Committee regarding the Rights of Persons with Disabilities.

Officials from the United Nation’s Committee on the Rights of Persons with Disabilities are to visit Britain after the Tories announced a wave of new austerity measures, including slashing disability benefits by a further £30 a week.

Thousands of sick and disabled people claiming Employment and Support Allowance (ESA) are to have their weekly payment cut from £102.15 to £73.10, which is the same amount as jobseekers’ allowance, if they are assessed as being able to undertake “work-related activity”. Bearing in mind that in order to claim ESA in the first place, prior to assessment, a doctor has already deemed this group of people unfit for work, the move to cut lifeline benefits further is especially cruel and inhumane.

We signed up to the Convention on the Rights of Persons with Disabilities under the last Labour government. On 8 June 2009, the UK government ratified the Convention, signaling its commitment to take concrete action to comply with the legal rights and obligations contained in the Convention. The Government also ratified the Convention’s Optional Protocol.

The Optional Protocol to the Convention on the Rights of Persons with Disabilities is a side-agreement to the Convention on the Rights of Persons with Disabilities. It was adopted on 13 December 2006, and entered into force at the same time as its parent Convention on 3 May 2008. As of July 2015, it has 92 signatories and 87 state parties.

The Optional Protocol establishes an individual complaints mechanism for the Convention similar to that of other Conventions. But this Protocol also accepts individual rights on economic, social and cultural rights. Parties agree to recognise the competence of the Committee on the Rights of Persons with Disabilities to consider complaints from individuals or groups who claim their rights under the Convention have been violated. The Committee can request information from and make recommendations to a party.

In addition, parties may also permit the Committee to investigate, report on and make recommendations on “grave or systematic violations” of the Convention.

In December 2014, the UN Human Rights Council created the role of UN Special Rapporteur on the rights of persons with disabilities. Part of the Special Rapporteur’s broad mandate is to report annually to the Human Rights Council and General Assembly with recommendations on how to better promote and protect the rights of persons with disabilities.

The Special Rapporteur chose to focus her first report on a thematic inquiry into the right to social security, globally. The report will be published in October 2015.

The Commission’s response focuses on three areas from the UK that are highly relevant to the Special Rapporteur’s inquiry:

  • The impact of reforms to the UK’s social security system on disabled people’s rights to independence and to an adequate standard of living;
  • Whether the design and delivery of health and social care services in England is consistent with the rights to physical and mental health, independent living and freedom from cruel, inhuman or degrading treatment or punishment; and
  • The impact of reforms affecting access to civil law justice in England and Wales on disabled people’s right to effective access to justice.

The Commission’s response to the UN Special Rapporteur’s inquiry into persons with disabilities right to social security can be found here.

The Disability Convention requires governments to designate one or more independent mechanisms to “promote, protect and monitor implementation” of the Convention.

The Commission, which is Britain’s National Human Rights Institution, has been designated alongside the Scottish Human Rights Commission, the Northern Ireland Human Rights Commission and the Northern Ireland Equality Commission to fulfill this role in UK.

The Sunday Herald has more recently reported that UN officials will visit the UK in the next few months to investigate whether Iain Duncan Smith’s welfare “reforms” have led to “grave or systematic violations” of disabled people’s human rights.  According to the Scottish Herald, a leading Scottish disability charity has been advised that a visit by the Special Rapporteur and members of the Committee on the rights of persons with disabilities is expected in the “near future”.

United Nations (UN) investigations are conducted confidentially, I’ve already submitted reports and evidence regarding the impact of the welfare “reforms” on sick and disabled people. I’ve mostly focussed on the withdrawal of the Independent Living Fund (ILF), the adverse consequences of the Work Capability Assessment, workfare and sanctions.

Anyone wishing to make a submission may contact the UN here:

Catalina Devandas Aguilar
Special rapporteur on the rights of persons with disabilities
Address: OHCHR-UNOG; CH-1211 Geneva 10, Switzerland
Email: sr.disability@ohchr.org

The Department of Work and Pensions have refused to comment regarding the inquiry.

Shocking statistics published by the Department of Work and Pensions last week showed thousands of people have died after being declared “fit for work”. The figures, which did not detail the cause of the deaths, revealed that at least 2,380 people died between December 2011 and February 2014 within six weeks of a work capability assessment (WCA), which found them found them fit for work.

Bill Scott, director of policy at Inclusion Scotland, a consortium of disability organisations, said: “The UN have notified us they will be visiting Britain to investigate … and want to meet with us when they come, sometime in the next few months.”

Inclusion Scotland has also made a submission to the study being prepared by the Special Rapporteur on the Rights of Persons with Disabilities, Catalina Devandas-Aguilar, which is examining the right of disabled people to social protection.

In the submission, Inclusion Scotland warned that the UK Government’s welfare reforms are “jeopardising disabled people’s right to life” by increasing the risk of suicide after loss of benefits. Last week, the Sunday Herald revealed that DWP staff had been given official guidance on how to deal with suicidal claimants left penniless after suffering benefit sanctions.

The Inclusion Scotland submission also highlights a series of shocking findings, including that disabled people in some areas of Scotland are waiting for up to ten months to access Personal Independent Payment (PIP) disability benefits, due to delays in assessments taking place.

Dr Simon Duffy, director of think tank The Centre for Welfare Reform, said independent research carried out since 2010 had shown the UK Government has targeted cuts mostly at people in poverty and people with disabilities. Disabled people have been targeted by cuts nine times more than other citizens. It also found that people with disabilities, who make up one in 13 of the population, bore almost a third (29%) of the cuts.

He added:

In fact the people with the most severe disabilities have faced cuts several times greater than those faced by cuts to the average citizen. This policy has been made even worse by processes of assessment and sanctions that are experienced as stigmatising and bullying.

The government has utterly failed to find jobs for the people they target – people who are often very sick, who have disabilities or who have mental health problems.

Instead we are seeing worrying signs that they are increasing rates of illness, suicide and poverty.

Many disabled people’s rights campaigners, such as Samuel Miller, Robert LivingstoneMike Sivier and myself, amongst others, welcome this development. Many  campaigners and organisations have made submissions to the UN, using the Optional Protocol mechanism. As I’ve said elsewhere, our political freedoms and human rights must not be subservient to Tory notions of economic success. Democracy is not about the private accumulation of wealth. It is about the wise use of the collective wealth for the common good of the public – that must extend to include ALL of our citizens. And a decent, civilised, democratic society supports its vulnerable members and upholds universal human rights.

Disabled people have been stigmatised, scapegoated and subjected to cuts in their lifeline support because of the financial mistakes and poor decision-making of government.

We need to ask why our Government has so far refused to instigate or agree an inquiry into the substantial rise in deaths amongst sick and disabled people, as these deaths are so clearly correlated with policy changes.  Or why a cumulative impact assessment has not been carried out regarding the consequences of these extremely draconian policies.

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Pictures courtesy of Robert Livingstone, used with thanks

Some problems with the design of Universal Credit

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Monthly payments
The government thinks this will help promote good budgeting and more closely replicate monthly salary payments.  Campaigners are worried that the shift from weekly and fortnightly payments to this new regime may push claimants recipients into debt. The Social Market Foundation says:

Most households in our sample opposed the idea of a monthly payment. This was the case for the majority of households, who tended to budget on a daily, weekly or fortnightly cycle.

One of the most controversial aspects of Universal Credit is the introduction of a new seven-day waiting period before an individual qualifies for benefit.

What is more, people on Universal Credit will have to endure a wait of one calendar month whilst their entitlement is calculated, and then a further seven-day wait for payment into their account, which will produce a total wait of at least five weeks before people already in hardship  receive any money.

Benefit payments will go directly to one member of a couple
In cases of domestic abuse and violence, this could give perpetrators command of household income, further enabling them to control and isolate their partners. As Sandra Horley from Refuge points out:

The housing benefit on which refuges depend is the lifeblood of the national network of services that keep women and children safe. But this vital source of income is now at risk. Many of our refuges do not meet the official definition of “supported exempt accommodation”, which means that a lot of the women we support will fall foul of the benefit cap.

This will be particularly damaging for women who pay two rents – one for the refuge they are living in temporarily, and the other for the home they have fled. Women who move on from refuges and resettle in areas of high rent may also be plunged into debt as a result of the cap. Those who accumulate rent arrears may face eviction and be left with an impossible dilemma either to sleep rough or return to their violent partner.

Direct payments
The prospect of stopping housing benefit payments to landlords and directly paying the claimant is causing a lot of unease. The National Housing Federation says the shift from paying landlords to paying claimants direct for the housing benefit element could trigger unprecedented levels of arrears and increased rent collection costs.

Of all the reforms, the introduction of direct payments to tenants is expected to have the biggest impact – more than 80% of housing associations say it will affect their organisations a great deal or a fair amount,” an NHF report warns. “84% of associations believe that rent arrears will increase as a direct result of welfare changes. The average increase expected is 51%, which, if replicated across the sector, would mean an additional £245m of arrears.

The government has said that “vulnerable” tenants may be excluded (pdf) and has devised an “automatic switchback mechanism” – paying rent to the landlord when a tenant’s arrears hit a threshold level – but there are currently very few details of what constitutes a vulnerable tenant.

There are concerns that more people could be evicted as a result. The BBC obtained figures that showed when the direct payments were piloted in six areas of the country there was a big rise in rent arrears as some tenants failed to pass that money on, with arrears rising from about 2% to 11%.

Conditionality and sanctions
The government says:

Entitlement to UC is subject to a strict regime of ‘personalised’ conditionality (ie mandatory activity to prepare for and obtain work), backed by tough benefit sanctions (ie loss of benefit) for non-compliance.

The Child Poverty Action Group warns:

The need for more conditionality comes across as a moral crusade, rather than being evidence based … There are concerns that some vulnerable claimants could face repeated sanctions for failing to comply with the demands of the system and that personal advisers and the Work Programme (within a culture of ‘payment by results’) will have too much power and discretion to impose unreasonable requirements on claimants.

The charity warns in a UC training document:

Sanctions, in the form of loss of benefit, are designed to incentivise claimants to meet their work-related requirements and punish them for unreasonable failures. The regime is harsh, and there is concern that some claimants who repeatedly fail to comply with the system could be sanctioned and forced to survive on below subsistence income for long periods. This could include vulnerable claimants with mental health or social functioning problems, who find it difficult to comply with directions.”

A high level sanction can be imposed if, for example, a claimant fails for no good reason to take up an offer of paid work. The higher level sanction is the loss of the standard allowance of 91 days for a first failure, 182 days for a second higher level sanction within a year, and 1,095 days (three years) for another failure within a further year (disregarding “pre-claim” failures).

Hardship payments will be available of 60% of the sanctioned amount for those who cannot meet their “immediate and most basic and essential needs for accommodation, heating, food and hygiene”.

Lone parents could lose out
The Institute for Fiscal Studies (IFS) calculates that “because of the way the parameters of universal credit have been chosen, couples, and particularly those with children, look set to gain by more, on average, than single-adult families, particularly lone parents, who will lose on average according to our analysis”.

___

For a more detailed critical account of Univeral Credit please see: It’s the design of Universal Credit and not the delivery that presents the biggest concern: from striking to altercasting

544840_330826693653532_892366209_nThanks to Robert Livingstone for the illustrations

Narxism


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Socialism is not just about what you believe or what you say, it’s about how you see, treat and relate to OTHERS.

Socialism has never been about division and exclusion, yet there are some that have rigid ideas about who and what can properly be labelled “socialist.”

I call this elitist perspective “narxism,” as protagonists, drawn from several scattered, disparate camps, tend to be perpetually disgruntled, often aggressive and they don’t half nark a lot. Narxists tend to have a highly selective, limited and unsophisticated grasp of what Marxism entails. They tend to use nasty personal insults and call you a “class traitor” in discussions, which is a tactic aimed at closing down debate.

Included under this rubric are some of the neomilitants, Trotskyists, nationalists, some of the more nihilistic anarchist revolutionaries, some of the Greens and the “none of the above” group. (NOTA, who advocate voting for no-one in order to register “protest” but end up helping the Tories back into office.)

vote
Robert Livingstone compiled a list of some of the various fringe parties, each claiming left-wing status: Behold, the united Left.

Oh, and there’s The People’s Front of Judea.  Image result for small wink emoticon copy and paste

We certainly don’t need any more new parties of the Left: what we do need is people that are willing to get behind Labour, to contribute and to take some responsibility by having a positive input – to engage in democratic dialogue with the Party – rather than expecting some silent and spontaneous process of political osmosis to happen.

A Labour government would be only a starting point for us to build a strong movement, not an end to our effort. They are certainly not the best we can do, but they are currently the most viable challenge to the Conservatives that we have, and their policies would make things easier for many people currently struggling under the authoritarians. Not ideal, but an improvement on what we have now. For the moment, we only have an available route comprised of small steps.

Meanwhile, we can contribute to setting a policy agenda and shaping priorities. Democracy doesn’t just happen to us: it is an ongoing process that requires our responsibility-taking and active participation.

There are some people amongst the various fragmentary fringe groups that state plainly they would rather see another Tory government than see the Labour Party in Office, some believe that this will “speed up the revolution”, others think that another Tory term will push Labour far left, sufficiently enough to fulfil their own personal wish list of limited, undemocratic, identity politics; reflecting undemocratic, cherry-picked ideals and an aggressive, highly circumscribed kind of socialist perfection.

Over the last five years, we’ve seen the public view shift rightwards though the Overton window. Many welcomed the welfare “reforms”, for example. If the Tories get back in office again this year, it will be almost impossible to get them out by 2020. There’s already a big gap opened up between electoralism and ideological integrity. Meanwhile, the Right only push further rightwards. That process will continue to factionalise the Left. It will continue to polarise the moderates and the socialists. It will ultimately fragment the Labour movement.

Narxists don’t like to be inclusive, they tend to see socialism as some kind of exclusive, highly idealised, olden-days “working class” club with a membership of people that use a distinctive and adapted language, incorporating heavily utilised and negative terms such “blue labour,” “red tories,” “new labour,” “tory lites,” and they also have a penchant for endless unforgiving discussion of both Clause 4 and “Tony Blair” (Blair blah blah…). Sure some things should change, but we need to take responsibility for making that change, instead of simply bleating about all that’s wrong.

Narxists tend to spread a lot of propaganda and outright lies, which they often parade as “criticism.” Narxists can become very aggressive and personal when their continually repeated soundbites are effectively challenged with solid evidence. That gets us nowhere fast. And it’s not very genuinely socialist either.

There is an identifiable strand of classist anti-intellectualism amongst the narxists, too: an inverted elitism. It’s something of an irony to hear that Labour are “no longer the party of the working class”, when you consider that Marx, who is quoted quite often by such ideological purists, wasn’t remotely “working class”, nor was Engels, for that matter. Or Kropotkin and Bakunin, whose family owned 500 serfs. Most academic neo-marxist theorists were terribly middle-class, too, you know.

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Narxists claim to be “real socialists.” Yet in their insistence on orthodoxy and their quest for a kind of socialist supremacy, the claim to being “principled” does not generally extend to those foundational socialist values of collectivism, cooperation, organisation and unity. Instead we see a mandatory ideological purism, monocratic perfectionism and bellicose individualism rather than collectivism, that simply divides the Left into competitive factions, which serve only to dilute and disempower us, ultimately.

Narxists seem to have no awareness that the world is populated by others, and it really has moved on. Nor do they seem to pay heed to the more pressing circumstances we currently face. Sick and disabled people are being persecuted by our current Tory-led Government, and many have died as a consequence of this Government’s welfare “reforms.” Many are suffering distress and hardship, and that must stop.

For the record, I hate party politics. My own political inclinations lie somewhere along an anarcho-socialist axis. However, I’m a realist, for the moment the only viable means we have of improving social conditions is to vote, whilst organising, awareness-raising, agitating and promoting progressive ideas for positive change.

Who we choose to vote for has profound implications for everyone else, too. This is the most important general election of our lifetime: the outcome will have historic ramfications. It will affect generations to come. If we allow the Tories another unforgiving (and unforgivable) five years, our once progressive and civilised society will be reduced to a neo-feudalist hinterland, where market forces maintain serfdom and increase pauperisation for the majority and the government of aristocrats select who lives and dies.

Remarkably, narxists prefer to endlessly criticise Tony Blair, who left the building some years back, rather than address and oppose the atrocities of the current government. We have an authoritarian government that are unravelling the very fabric of our once civilised society, dismantling democratic process, abusing human rights and destroying lives. People really are suffering and dying because of Tory policies. The typified, dogmatic response from Narxists everywhere? “Yeah, yeah, but I won’t vote for Labour, because that Tony Blair was a tory lite….” or “Yeah, but they’re all the same…” Ad nauseam.

Oh but they are not the same at all.

And the Labour Party has moved on since Blair.

The only viable means currently available to us of preventing another five years of Tory dystopic vision being realised and the destruction of all that reflects the very best of our society – the blueprint of which is our post-war settlement – is a collective act: a Labour vote. The electoral system is the way that it is – we don’t have proportional representation – nonetheless, we have to use what we have intelligently , strategically and conscientiously. For now. Small steps.

I didn’t like Tony Blair either. I am strongly opposed to neoliberalism more generally, and felt he betrayed the working-class by advocating an economic system that invariably creates social hierarchies of wealth. Some of his social policies were okay. But this isn’t about dogma: it’s about doing the very best we can, acknowledging our circumstances. There is so very much at stake. The Tories want to completely destroy our NHS, public services and support provisions. They want to repeal our Human Rights Act and withdraw from the European Convention. Many of us won’t survive another Tory term. Unfortunately, I don’t see a revolution on the horizon. I do see a very fragmented, disillusioned, apathetic, disengaged and indifferent population.

We need to be responsive to our current situation – in the here and now, and clinging to tired and past-their-usefulness doctrines isn’t going to achieve that. The world has moved on, we have to adapt, respond and move with it.

Let’s try for some genuine solidarity, let’s unite in our common aims, let’s recognise our basic similarities as fellow humans with the same fundamental basic needs, and fight the real enemy, instead of bickering about what socialism is or ought to be about, and what our only current hope – the Labour party – ought to adopt as its brand and mantle. We don’t have a choice, we have to be strategic and tactical at the present. It sucks, but that’s how it is.

Socialism isn’t about what we think and say: it’s about what we DO. Collectively, and for each other.

I’m not a Blairite, but I’m no “Narxist” either. Socialism isn’t about ideological purity, it isn’t about what you think or say, or even what you want: it’s what you DO. It’s about how you relate to others and how you view community and society. It’s about solidarity, cooperation, mutual aid and all of those other values that we should practice instead of just preaching. It’s not ever about competitiveness and exclusivity.

The hardline “real socialists” have damaged our movement every bit as much as “blue labour” have, in their advocacy of factionism.

Without cooperation, solidarity and unity, the Labour movement will die. That must not happen.

In solidarity.

Upwards and onwards.

Related

Osborne’s Autumn statement reflects the Tory ambition to reduce State provision to rubble

Human rights are the bedrock of democracy, which the Tories have imperiled.

47 more good reasons to vote Labour

The moment Ed Miliband said he’ll bring socialism back to Downing Street

Ed Miliband’s policy pledges at a glance

Electioneering and grandstanding: how to tell the difference between a moral political party and a moralistic one.

You’d have to be Green to believe the Green Party: two more lies exposed.

 10635953_696483917087806_7307164383030383606_nMany thanks to Robert Livingstone for his brilliant memes

Essential information for ESA claims, assessments and appeals

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Essential Information for claims, assessments and appeals. 

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

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

These very helpful ideas are:

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

1. Reliably, repeatedly and safely. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(CLICK)   Cover letter for your GP

(CLICK)   ESA Appeals Letter for your GP

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

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

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

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

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

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

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

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

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

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

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

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

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

Things that are noted from your form:

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

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

Further observations made:

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

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

At this point the HCP assesses:

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

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

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

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

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

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

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

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

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

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

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

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

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

Mental Health:

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

Personal Actions:

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

Other observations made by the HCP – appearance and presentation:

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

More HCP observations include:

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

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

Additional information:

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

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

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

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

Further information:

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

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

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

Appendix A: 

Regulation 25

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Regulation 31 

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

(a) the claimant is terminally ill;

(b) the claimant is—

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

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

(iii) recovering from such treatment,

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

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

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

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

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

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

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

Regulation 29

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

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

paragraph (2) applies to the claimant.

(2) This paragraph applies if—

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

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

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

a recognised therapeutic procedure; or

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

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

Regulation 35

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

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

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

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

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

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

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

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

Appendix B

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

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

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

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

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

Further reading:

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

Important update

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

Additional support:

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

V-STARTU

Thanks to Robert Livingstone for his valuable contributions.

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

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


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

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