Dear Ms XXXXXXXXXX,
I have today received a copy of the ESA85 resulting from my WCA on XX Sept 2011. Although I have not yet been advised of DWP’s decision, it is obvious what it will be given Ms XXXXXXXX concluded that none of the descriptors apply and I that I have no restrictions at all to my capabilities. There is no point therefore in delaying raising this complaint – disappointing, but entirely predictable. In part, I asked my wife to accompany me on this occasion because based on past experience I simply could not trust your HCP to accurately record the interview so I felt I needed a witness and it was just as well I had one.
The inaccuracies within the report are deliberate and subtle, but clearly intended to slant the overall picture in one particular direction and generally understate or dilute the consequences of my condition. For example, the personalised summary uses the word “mostly” which is a complete misrepresentation of what I said. It also states that I had no observed difficulty which is simply a lie – getting on and off the couch was very painful, despite the help from my wife. Ms XXXXXXXX could not possibly have mis-read this.
1. The Interview
Although Ms XXXXXXXX was polite, she was somewhat offhand and clearly keen to complete as soon as she could. I very much felt like I was being “processed”. Her questions were direct and phrased to prompt a simple yes/no answer, so I continually had to interrupt her to elaborate where necessary.
Although Ms XXXXXXXX claimed to have seen it, she did not have a copy of my ESA50 with her and could not therefore make any reference to it during the interview. From the discussion that took place, it was evident that she had not read it thoroughly as she could remember little of its content.
To demonstrate the extent of my treatment in relation to my impairments, I took along a copy of an X-ray showing the metal frame that now supports my lower spine, but she gave it no attention, asked no questions nor made any reference to it in her report.
She has not therefore fulfilled the requirements described in paragraph 3.1.2 of the WCA Handbook which states:
“Particular attention must be paid to the current claimant questionnaire [ESA50] and all areas where the claimant indicates that there may be a problem must be fully explored. At times the claimant may also bring additional evidence to the assessment. Any evidence bought by the claimant must be read and the report should make reference to the evidence that has been considered and justification provided if there is a conflict between the opinion of the HCP and the other medical evidence.”
From the outset, she gave a clear impression that the outcome was pretty much a foregone conclusion. I do not believe she had an “open mind”.
2. The ESA85
For the third time, my date of birth is wrongly shown, despite the fact that this is supposedly checked by the HCP – perhaps representative of the general standards and rigour applied.
I do not believe the timings recorded as I left the interview at XX.XX, commenting to my wife that it was the shortest yet.
Paracetamol dosage is wrongly recorded (see ESA50).
There are some clear requirements of the medical report as described in paragraph 184.108.40.206.2. of the WCA Handbook:
· List all the current diagnoses: The information recorded is neither accurate nor complete (see below).
· Ensure that all conditions entered in the ESA50, or other medical reports are included. Not included.
· The HCP should . . enquire into any improvement or deterioration in each condition since they completed the ESA50. Ms XXXXXXXX did not raise this question at any stage, despite the fact that I had completed the ESA50 five weeks earlier. I explained that my overall condition had deteriorated over the past month or so, but this does not appear in the report.
It also makes clear the importance of accurate information as follows:
“If you write "Lumbar disc protrusion" rather than "Low back pain" and it transpires at a Tribunal that investigations revealed spondylolisthesis then the whole value of the evidence you have provided for the Decision Maker is undermined.”
It is therefore very surprising (particularly given the relevance of this example) that Ms XXXXXXXX did not record either the diagnosis or surgical remedy accurately. She was also not conversant with the range of outcomes that result from such surgery.
The main issue however is that for both Activities 1 & 2 Ms XXXXXXXX’s conclusions are completely inconsistent with her own observations and my ESA50. The choice of descriptors must be supported by appropriate medical evidence and detail, but that is not the case here.
For Activity 1, she has no grounds for dismissing Descriptor W(a). Quoting from the WCA Handbook:
“If they are unable to walk or move on level ground to the degree stated, it would not be considered reasonable to expect the claimant to participate in work related activity, because of their severe mobility restriction.”
The handbook encourages quantification (e.g. paragraph 220.127.116.11), but there is none here, in contrast to my ESA50, which is quite specific. P65 specifically states, “Include details of distances walked/mobilised”.
There is a reference to me walking 20m to the examination room, but not to the fact that I was the last to arrive by a long way and as Ms XXXXXXXX walked well ahead of me she was in no position to assess any difficulty I was having.
Similarly, for Activity 2, she has no grounds for dismissing Descriptor S(b).
The WCA Handbook contains many other references for the need to provide conclusive, indisputable supporting evidence for conclusions that differ from the ESA50:
“If your opinion on level of function in any area differs from that of the claimants you must provide full justification for your opinion. You must comprehensively justify and support your choice of descriptor”
“Any conflicting evidence in the report must be fully addressed”
“It is also imperative to address all the information obtained during the assessment and in the ESA50.”
“If the claimant has indicated, variable or inconsistent levels of function in the ESA50, you should consider that this indicates a problem and justify your opinion appropriately.”
As I am sure you are aware, consistency is a vital element of this report and it is essential that the comments really do bear out the choice of descriptor, especially when the opinion differs from the customer's own assessment. By the same token, a definite distinction has to be made between fact and opinion and while an opinion on its own may have persuasive value it can never take precedence over an opinion which is based on clear and concise evidence. This report does not fulfil either requirement.
I was very careful to describe to Ms XXXXXXXX the variability in my condition and the difficulty creates in adhering to any kind of timetable of schedule, the importance of which is recognised in the handbook:
“For conditions which vary through the day the choice of descriptor should reflect that level of activity that can be performed for a reasonable continuous period within the day. Again it should be made clear in the report to the DM how the practitioner arrived at their advice.”
“Taking all of this into account, if a claimant cannot repeat an activity with a reasonable degree of regularity, and certainly if they can perform the activity only once, then they should be considered unable to perform that activity.”
Although there is passing reference in the ESA85, Ms XXXXXXXX made no real attempt to explore this area thoroughly and understand the consequences. In doing so she should have complied with the following instruction:
“If you decide not to accept the degree of variability, etc, you should document justification, such as: "In my view, the claimed (variability etc) is unlikely, given the following findings:" and provide one or two specific examples to support your opinion.”
“So that the assessment is not a snapshot on the day”
but has failed to do so.
Over the question of pain, the handbook is quite clear:
“If a person can complete a task but suffers significant pain or distress in doing so, they should be considered incapable of the activity.”
Nowhere in the report has Ms XXXXXXXX taken this into account.
In view of the overall quality and accuracy of this report, in any comparable situation the repercussions would be that the fee for the service would be withheld and the HCP would not be used ever again, but this decision is of course yours.
The sad reality of this incompetence is that a huge amount of unnecessary work will now be created within DWP and the Tribunals Service, not to mention the stress and upset I will suffer. For Atos and the HCP by contrast there are no repercussions whatsoever.
cc DWP Wellingborough BDC