Tag: Support Group

‘Reforming’ ESA: the final frontier and the last moral boundary

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Context

Employment and Support Allowance (ESA) is a benefit for people who are assessed as being unable to work because of a health condition and/or disability. Despite this, ESA has also been politically defined as financial support for people having difficulty finding a job because of a long-term illness or disability, to “help them back to work” despite their illness or disability. This presents a problematic tension because in order to qualify for ESA at all, people must be found to be unable to work, by their own doctor, and by the “independent” Work Capability Assessment.

There’s a significant difference between being unable to work, and facing significant additional barriers to work. People who are assessed are most commonly described as having “limited capability for work” – a phrase which is not precise in its meaning, and which does not include or prompt any consideration of social, cultural, political and economic contexts that also present disabled people with significant barriers to employment. 

The name of the allowance (“employment and support”) is also purposefully misleading, and betrays the original controversial political cost-cutting aims that prompted its inception. This re-branding of what was previously called “incapacity benefit” has been problematic. It implies that even those people placed in the Employment and Support Allowance Support Group, who are considered “unlikely” to be able to work in the foreseeable future, are nonetheless being “supported” into employment.

This blurring of definitions, categories and purposes has provided scope and political opportunity for discussion of introducing the mandatory requirement for pre-employment preparation, conditionality and sanctions to be applied to claimants with the most severe health conditions, in the Support Group. This has been casually suggested in the recent work, health and disability government consultation and green paper. Currently, anyone in the Support Group can voluntarily ask for pre-employment support, it isn’t compulsory.

A major assumption throughout the green paper is that disabled people claiming ESA are somehow mistaken in assuming they cannot work: “how can we improve a welfare system that leaves 1.5 million people – over 60% of people claiming Employment and Support Allowance – with the impression they cannot work and without any regular access to employment support, even when many others with the same conditions are flourishing in the labour market?   

This group were assessed by doctors and the state (via the Work Capability Assessment) as being unable to work. 

The aim behind the introduction of ESA was to actively reduce those previously eligible for Incapacity Benefit to a small group of people with severe disabilities (Support Group) and another moderately sized group who were to undergo fixed term pre-employment preparation and training (Work-Related Activity Group.)  The latter group are deemed unable to work, but expected to recover sufficiently to work within two years of the assessment. 

However, the controversial Work Capability Assessment (WCA) has been widely criticised, not least for its insensitivity and lack of capacity in differentiating between those people who “may” work, and those who cannot. Furthermore, the  WCA does not identify the social, cultural, political and economic barriers that disabled people face in finding suitable employment, and so the focus is on individuals without a context and their perceived personal “deficits” caused through illness and disability. This means that any pre-employment “support” for those who may or who wish to work is by its design unlikely to address the structural barriers to suitable employment that disabled people face.

The architects

Much of the politics of welfare in the 1980s revolved around “cuts” and restrictions in public spending designed to allow tax cuts, particularly reductions in the rates of income tax. Blair’s new programme, the New Deal, was all about moving people from social security benefits into work, as were many of the measures in the 1998 Budget.

David Freud, a former vice-chairman of bulge bracket investment banking at UBS, was an advisor on out-of-work benefit reform in December 2006. Freud’s 2007 report – dubbed “the Freud report” but officially titled Reducing dependency, increasing opportunity: options for the future of welfare to work – called for the greater use of private sector companies who would be paid by results, for substantial “resources” to be made available to help people on Incapacity Benefit back into work, and for a single working-age benefit payment to replace individual benefits such as Housing Benefit and Jobseeker’s Allowance (the forerunner of Universal Credit). His central idea was that spending on “delivery” – such as schemes to get people back to work, like the work programme – would save money in the long run because there would be fewer people being paid money in the form of benefits. 

Other contributions to the body of ideas behind ESA came from Frank Field, who was made Minister for Welfare Reform following the 1997 election, with Labour in power. Field felt that the state should have only a small role to play in the provision of welfare, and he viewed his task as “thinking the unthinkable” in terms of social security reform, but others report that Prime Minister Blair wanted some simpler vote-winning policy ideas. Blair writes that: “the problem was not so much that his thoughts were unthinkable as unfathomable”.

In January 2006, John Hutton published a White Paper outlining the government’s latest plans for welfare reform: the benefit that would replace Incapacity Benefit would be called Employment and Support Allowance and its “gateway” assessment would be transformed. Over the course of a decade, Hutton expected the number of people on Incapacity Benefit to fall by one million, saving £7billion a year.

In July 2008 a Green Paper was published, which James Purnell said was “inspired by the reforms proposed by David Freud”. The author announced that “between 2009 and 2013, all Incapacity Benefit claimants will be reassessed using a medical assessment called the Work Capability Assessment” that would divide them into three groups: fit for work; unfit for work but fit for work-related activity; or fit for neither. At the same time, Professor Paul Gregg was asked by the Department for work and Pensions (DWP) to conduct a feasibility study of conditionality and how it might be applied to people claiming sickness benefits. When responding to the Gregg Review, the DWP said that the study had recommended that conditionality be applied to “the vast majority of people in receipt of Employment and Support Allowance.”

In early 2011, under the Coalition government, the Incapacity Benefit reassessment programme was underway using a much more stringent version of the WCA. Atos were recontracted to carry out the work. Targets were written into Atos’s new contracts to reduce successful claims. Dr Steven Bick, a GP with 20 years’ experience, applied for a job as an assessor with Atos to carry out the WCA, and secretly filmed his training for Channel 4’s Dispatches programme, which was broadcasted on Monday 30 July. Undercover filming shows Bick being told by his trainer that he will be watched carefully over the number of applicants he “found eligible for the highest rate of disability payments.”

The documentary also highlighted the unease about the radically heightened eligibility criteria felt by some trainers employed by Atos to teach new recruits how to carry out the tests. It had become much more difficult for very severely disabled claimants to qualify for support. No matter how serious claimants problems are with their arms, for example, “as long as you’ve got one finger, and you can press a button,” they would be found fit for work, one trainer said. Bick said that assessors testing Incapacity Benefit claimants were told they should rate only about one in eight as needing to be placed in the Support Group. That’s regardless of the level of illness and disability they would be presented with, case by case.

In January 2016, the Conservative Welfare Secretary, Iain Duncan Smith, announced that ESA was “fundamentally flawed” and declared that a brand new policy, which would get nearly all ESA recipients back to work, would be unveiled within weeks. A hint of what that policy might be was given in a detailed report on ESA published the following month by Reform, the right-of-centre neoliberal think tank:

  • Effectively, ESA would be abolished: the amount of money paid each week to the claimant would be reduced to the level of Jobseekers Allowance
  • The WCA may be replaced by another assessment that set out to identify any barriers to work faced by the claimant, but which would play no role in determining eligibility to benefits
  • As a way to nudge claimants towards overcoming those barriers, extra money might be made available to fund a tailored programme of rehabilitation – although participation in this could be made a requirement of continued receipt of the benefit.

State diagnosis and treatment – a blunt instrument

The government say that according to previous research undertaken by the DWP, musculoskeletal conditions were the most common main condition of people claiming ESA. Mental health conditions have more recently overtaken this category of illnesses as the main condition that “triggers” an ESA claim.

In the recent work, health and disability green paper, the government also say: ““[..] how can we improve a welfare system that leaves 1.5 million people – over 60% of people claiming Employment and Support Allowance – with the impression they cannot work and without any regular access to employment support, even when many others with the same conditions are flourishing in the labour market?”

The research paper also says: “The belief that work improves health also positively influenced work entry rates; as such, encouraging people in this belief may also play a role in promoting return to work.”

The belief. Not evidenced fact.

That is a very dangerous idea. Many conditions are complex, unpredictable and difficult to diagnose. Some conditions have multiple symptoms affecting many different parts of the body. Musculoskeletal conditions, for example, are a category that includes conditions ranging from injuries to systemic and serious diseases. So “musculoskeletal conditions” include low back pain, injuries such as broken bones, torn or pulled ligaments and tendons, and slipped discs, wear and tear on joints, osteoarthritis, osteoporosis, and connective tissue diseases such as rheumatoid arthritis, lupus and scleroderma.

Connective tissue diseases are systemic illnesses that usually affect other parts of the body, such as major organs, as well as the widespread pain and damage in the musculoskeletal system. Most people with these illnesses don’t just contend with pain in their joints, tendons, ligaments and nerves; they usually feel very unwell, suffering from weight loss, profound fatigue, susceptibility to infections and general malaise. They may have serious lung, heart, kidney or blood disorders, neurological disorders, eye and ear problems, vascular problems and a wide range of other serious symptoms that can be caused through widespread inflammation throughout the body. Physiotherapy, splinting damaged joints, and other traditional measures for helping injury doesn’t help in the long term with connective tissue disease, because the damage is caused by a disease process: through autoimmune mediated widespread inflammation.

This is precisely why I see my doctor and not the government when I am ill. I want an objective and precise medical opinion, diagnosis and specialist treatment when needed, not an ideological diagnosis, dogma in soundbites and a prescription for hard labour, to “set me free.” 

“[…]with the impression they cannot work and without any regular access to employment support, even when many others with the same conditions are flourishing in the labour market?”  

Not all of the “same category” of conditions are the same. To assume they are is very dangerous. Furthermore, as previously stated, rehabilitation is unlikely to be helpful, since damage to the joints, tendons and ligaments isn’t caused through injury and it won’t heal. Medication is the only way to slow the damage that is caused by autoimmune complexes and inflammation. Connective tissue diseases are incurable. 

However, many of the treatments for connective tissue disease are also very risky and experimental. They include methotrexate, which is a chemotherapy, and immune suppressants such as enbrel and rituximab, which leave people at risk of dying from overwhelming infection, as well as other serious side effects, which may also kill.  

Having people believe that work is good for their health in order to reduce the numbers of people claiming ESA is authoritarian, disgracefully irresponsible and very dangerous.

On 22 December 2014 a bin lorry collided with pedestrians in the city centre of Glasgow, Scotland, killing six and injuring fifteen others. The driver of the council-owned vehicle, Harry Clarke, said he had passed out at the wheel. A similar blackout had happened to him in the driving seat of a bus, although he had not disclosed the incident on his heavy goods vehicle licence renewal application, despite such self-reporting being mandatory. 

Having been admitted to the Western Infirmary after the crash, Clarke was discharged on 7 January 2015 He was eventually diagnosed as having suffered neurocardiogenic syncope, a fainting episode caused by drop in blood pressure. The inquiry also revealed that Clarke’s medical history contained episodes of dizziness and fainting dating from the 1970s and that he had previously suffered a blackout while at the wheel of a First Glasgow bus, which was in service but stationary at a bus stop. 

It was stated that Clarke had been passed fit to return to work as a bus driver owing to failures by both the bus company’s doctor and Clarke’s own GP to spot that Clarke had changed his account of events, telling his GP that the episode had occurred in the canteen, which the GP then attributed to the hot conditions and deemed to be unlikely to be repeated. Clarke had a four-year history of episode-free driving after the 2010 incident, and First Glasgow’s occupational-health specialist had cleared him to drive after the 2010 incident and told him he need not notify the DVLA. 

A good question to ask is this. In the event of injury or death to either the person coerced by the state into work, assured that work is good for health, or to their work colleagues, as a consequence of that person not being fit for work, who is ultimately responsible? Bearing in mind that to qualify for ESA, a person has already been assessed as unfit for work. 

The shrinking category of illness and disability 

ESA was originally calculated to include the acknowledged additional every day costs that disabled people face in their day to day living. There was also a recognition that disabled people who can’t work face the cumulative effects of poverty because of a low income over time, too. The ESA Support Group have the higher rate because they are anticipated to be highly unlikely to work in the longer term. That outcome is assessed via the state WCA. So the state has already acknowledged that those in the Support Group are unlikely to be able to work. Those in the Work-Related Activity Group (WRAG) are deemed unable to work, but “may” be capable of work in the future, more specifically, “within two years”.

Although PIP covers some additional costs that disabled people face, it’s designed to cover highly specific needs, with “components” for mobility, and a daily living component which is paid if you need personal care. Both the mobility and daily living allowance are narrowly task related, not cost related. There is no component, for example, that would cover extra heating, special diet and additional laundry requirements. Many special adaptations that people may need are not included, too. 

Many people who were previously eligible for mobility support through the Disability Living Allowance (DLA) assessment are no longer eligible because of the much harsher eligibility criteria for PIP. This has meant many thousands of people have lost their specially adapted motability vehicles or motorised wheelchairs. This includes people who relied on their vehicles to get to and from work, since PIP and DLA are not means tested, it can be claimed by people in or out of work.

Earlier this year I wrote that a government advisor, who is a specialist in labour economics and econometrics, has proposed scrapping all ESA sickness and disability benefits. Matthew Oakley, a senior researcher at the Social Market Foundation, recently published a report entitled Closing the gap: creating a framework for tackling the disability employment gap in the UK, in which he proposes abolishing the ESA Support Group. To meet extra living costs because of disability, Oakley says that existing spending on PIP and the Support Group element of ESA should be brought together to finance a new extra costs benefit. Eligibility for this benefit should be determined on the basis of need, with an assessment replacing the WCA and PIP assessment.

Both ESA and PIP were introduced with the same claim: that eligibility should be determined on the basis of need. The category of disabled people that the government regard as “most in need” is shrinking as the political goalposts constantly shift. I think the word “need” is being conflated with politically defined neoliberal outcomes.

Oakley also suggests considering a “role that a form of privately run social insurance could play in both increasing benefit generosity and improving the support that individuals get to manage their conditions and move back to work.”

A toxic article from the Conservative and neoliberal Reform think tank suggests that “treatments” for some ESA claimants are made mandatory, subject to sanctions and so on.

And I can see that coming down the pipeline to the tune of an insane political mantra: “work is a health outcome.” 

In Working welfare: a radically new approach to sickness and disability benefits, Reform have this to say:

“Those with mild or moderate health conditions that, with support, could be managed should be expected to take reasonable rehabilitative steps – some level of conditionality should therefore be applied. Employment advisers must be appropriately trained to support those claimants, and given a high degree of discretion in how they apply that conditionality.”

“Could be managed” by work coaches and state sponsored occupational therapists? That comment implies that sick and disabled people and our health service are somehow “failing” to “manage” sickness and disability. Seriously? The inference we are supposed to make is that people are sick and disabled because they can’t be bothered helping themselves. I think that tells you all you need to know about the attitude that informs what kind of “rehabilitation” will be on offer. It won’t be tailored to your medical condition, it will be tailored to you simply getting a job. 

Another Reform articleReforming ESA: the final frontier? says: “There is a risk, though, with making health support mandatory and asking health professionals to police this.”

Compulsory medical treatment is against the law. There are also human rights implications. That’s regardless of the government’s narrow aim of coercing people into work by using “health” interventions as a prop. A medical intervention without valid informed consent is a criminal offence and the offending health care professional can be charged with assault or battery. Examples of such situations include treatment against the patient’s will, different treatment than the one consented for and treatment after consenting when a person has been deliberately provided with wrong information.

There are very few exceptions, which include: patients with acute or permanent incapacity (i.e loss of consciousness after an accident or patients on mechanical ventilation) or chronic illness (i.e dementia), patients suffering from severe mental illness, (but if a patient has clearly given an advance directive while still competent, the treating physician is legally bound to respect this) and patients suffering from communicable diseases, such as tuberculosis (TB).

The four main principles of medical ethics are justice, non-malificence, autonomy and beneficence. Autonomy is the main ethical consideration underlying informed consent. The patients’ right to determine what investigations and treatment to undergo must be respected by all doctors.

For consent to be valid it must be informed consent. For this to be the case it must be:

  • Given voluntarily with no coercion or deceit. Sanctioning and the threat of sanctioning would constitute coercion.
  • Given by an individual who has capacity
  • Given by an individual who has been fully informed about the issue.

There are further implications regarding job coaches accessing medical records for patient confidentiality:

  • Breaching confidentiality fails to respect patient autonomy.
  • Violation of patient confidentiality is a form of betrayal.
  • Patients have a right to confidentiality that has frequently been demonstrated in common law and in some specific areas outlined in statute law.

The Reform think tank has also recently proposed entirely scrapping what is left of the disability benefit support system, in their report Working welfare: a radically new approach to sickness and disability benefits and has called for the government to set a single rate for all out of work benefits and reform the way sick and disabled people are assessed.

You see dangerous, circular and irrational justifications such as: “Nonetheless, international evidence does show that the rate at which sickness benefits are set can have behavioural effects – particularly on claim duration. ”  

Well no. Those on the higher rates are assessed as unlikely to be able to work in the long term and thus the “behavioural effects” are simply that this group are too ill to work. That means they will be claiming for long periods. Yet this blunt, dangerous and backwards logic is being used to claim that higher disability rates serve as a “disincentive”for work. 

The Reform think tank proposes that the government should cut the weekly support paid to 1.3 million sick and disabled people in the ESA Support Group from £131 to £73. This is the same amount that Jobseeker’s Allowance claimants receive. However, those people placed in the Support Group after assessment have been deemed by the state as unlikely to be able to work again. It would therefore be very difficult to justify this proposed cut, given the additional needs that disabled people have, which is historically recognised, and empirically verified by research.

Reform had also promoted the idea that the ESA WRAG should be paid the same as those claiming job seeker’s allowance. That happened of course. Now they are arguing that there should be NO disability premium at all for the Support Group, on the grounds that it serves as a “disincentive” to work. The government’s recent green paper clearly shows the idea has been taken on board in principle, given the discussion for introducing conditionality, work related activity and sanctions for the previously exempt group of very ill and disabled people, placed in that group originally because doctors and government contracted “independent” assessors deemed them too ill to work.

Yet the authors of the report doggedly insist that having a higher rate of weekly benefit for extremely sick and disabled people encourages them“to stay on sickness benefits rather than move into work.” People on sickness benefits don’t move into work because they are sick. Forcing them to work is outrageous. “Too ill to work” is simply that. It has nothing to do with “incentives”, and that patronising and dangerous claim is simply a politically expedient reinterpretation.

The government’s aim is to manage sickness and disability in the short term sufficiently enough to meet narrow neoliberal outcomes including fueling the supply side of the “labour market”.

But it’s a well known historical fact that a large reserve army of labour drives wages down. The other trend, over this last decade, has been the unprecedented growth of “flexible” or insecure contracts, which are considerably attractive to employers, who dispute many of the downsides that unions, workers and analysts have highlighted. (See: More than 7m Britons now in precarious employment). In this highly competitive context, it is highly unlikely that employers who have increasingly come to regard their employees as a disposable means of making profit are going to be “disability confident.” The fact that the government are proposing offering temporary financial “incentives” to employers that recruit disabled people tells us there is a major barrier there. 

Further comment from Reform: “Reform call for a single rate of ‘income replacement’ for out of work claimants, whether disabled or not. This would mean a reduction for many ESA claimants. However, Reform ask why ESA is paid at a higher rate. If it is because there are extra costs associated with disability, then isn’t this what Personal Independence Payment (PIP) is for? If it is because ESA claimants are expected to take longer to find work, then doesn’t this also apply to some Jobseeker’s Allowance claimants and other groups?” From Reforming ESA: the final frontier?

PIP covers very only highly specific additional costs: those related to mobility and personal assistance, as I outlined earlier, and it is very difficult to fulfil the eligibility criteria, since this was another re-branded benefit designed to cut cost. Being sick and disabled does mean that at the very least, people may need recovery time, and meanwhile cannot meet even basic signing on conditionality, such as being available for work seven days a week. However, many in both ESA groups cannot work because they are chronically ill, or have degenerative conditions. Some people in the Support Group are terminally ill. This is very worryingly something that Reform have chosen to ignore. 

The title of Reform’s paper – Reforming ESA: the final frontier? provides a glimpse of a wider political intention – ESA is the “last unexplored area” for welfare “reform.”  “Thinking the unthinkable” is one of those trite things that ministers say when they expect something of a public backlash, but have nonetheless already made up their minds about cutting some public service or essential social support provision. Beforehand, think tanks and ministers periodically “kite fly” their proposals to test out public responses, using justification narratives: techniques of persuasion, usually reserved for the dodgy end of the advertising industry, and techniques of neutralisation to soothe and to sell their ideas about how things ought to be. And where our money should not be spent. The “public purse” is being “protected” from more and more of the public – ordinary citizens – and is now regarded as disposable income for the very wealthy and powerful. Austerity for us, tax gifts for the 1%

Six years ago it would have been unthinkable for a government to take away financial support from sick and disabled people, and to coerce them into work. It would have been unthinkable for a government to propose making any kind of medical treatment mandatory for a protected social group – sick and disabled people who need support to meet their basic needs. It would have been unthinkable that a UK government would systematically violate the human rights of disabled people. Yet they have. 

That we have progressed to become a society that permits a so-called democratic government to do this indicates that the public’s moral and rational boundaries have been pushed, this has been an incremental process, permeated by a wide variety of deliberative practices which have added to the problem of recognising it for what it is.

There has been a process of gradual habituation of the public, to being governed by shock and surprise; to receiving decisions and policies deliberated and passed in secret; to being persuaded that the justification for such deeds and controversial policy was based on real evidence that the government parades as slogans propped up by glittering generalities and techniques of persuasion. It happens in stages. Many don’t notice the calculated step-by-step changes, but those that do  – usually those affected – are often overwhelmed with the sheer volume of them.

 “The final frontier” is the political garnering of sufficient levels of public indifference and complicity with state cruelty, coercion and the uncivilised systematic sanctioning and removal of support for those sick and disabled citizens that doctors and state assessors have already said are not able to work. This is a government that likes to get its own way. 

Once the public’s rational and moral boundaries have been pushed sufficiently to accommodate this atrocity, it won’t be very difficult at all to argue a case for the complete dismantling of the welfare state.

That has always been the ultimate aim of the Conservatives.

If you think that’s okay, then perhaps it’s worth contemplating that illness can happen to anyone, and so can an accident. We have all paid into our social security system, as have our parents. It is ours; it’s there for if or when we need support. It reflects the collective best of us as a society, yet somehow this government have managed to attach shame and stigma to it. And as a society, we’ve allowed them to do that.

Disability can happen to any of us at any time. And when it does, you soon realise that it isn’t a “lifestyle choice” that you would ever have chosen to make.

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 Related

What you need to know about Atos assessments

G4S are employing Cognitive Behavioural Therapists to deliver “get to work therapy”

The power of positive thinking is really political gaslighting

Nudging conformity and benefit sanctions: a state experiment in behaviour modification

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

Research finds strong correlation between Work Capability Assessment and suicide


 

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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


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