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.”
- 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
- 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.
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.
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
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.
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:
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.
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.
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
Cauda equina syndrome
Cervical nerve root compression
Nerve entrapment syndrome
Carpal tunnel syndrome
Brachial plexus injury
List of conditions judged by the DWP and Atos Healthcare as suitable only for assessment by doctors:
Head injury with neuro sequelae
Sub Arachnoid Haemorrhage
Motor Neurone Disease
Amyotrophic lateral sclerosis
Fits (secondary to brain tumour)
Learning difficulties (with physical problems)
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
Clause 99, Catch 22 – The ESA Mandatory Second Revision and Appeals
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
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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