Dodgy Decision Making (it is not just Atos) - a long and detailed complaint

Mr XXXXXXXX

Job Centre Plus

Wellingborough BDC

St Stephens Street

Birmingham

B99 1AB

Dear XXXXXXXX

Re: Complaint

I have received your unnecessarily terse letter dated 22nd November today.  Although it does not say so, I am assuming that you have seen my letter dated 12^th November, but not the one dated 22^nd November - the 10 or so day delay with your post system makes it difficult to judge.  The post system here by contrast allows letters to be dealt with the day they arrive.  I will cover all of the outstanding matters within this letter and what I expect to happen subsequently.  I will make no apology for my impatient tone, which as you will see, is more than justifiable. I will try to avoid repeating the matters that are more part of the appeal.

I will first tell you that I have just received a letter from Atos accepting that my WCA on xx September was inappropriately conducted and its conclusions unfounded, but I will come back to this later.  They have apparently notified DWP, but I don’t know how, when or to whom.  I do understand that this may not cause you to change your decision and I will await the outcome of your deliberations with interest in view of what you have told me in our conversations.

Firstly I would remind you that I asked for written confirmation when we first spoke on 27^th October and to have to wait 4 weeks and issue 3 reminders is in itself unacceptable, a word I suspect I will be using repeatedly here.

1.    Dates

In your letter of 22/11 you say the decision was made on 5^th October.  It was not. Your notification letter was dated 25^th Oct (I received it 27^th Oct) and you made a WRAG level payment on 26^th Oct.  This delay was your fault not mine and I do not therefore believe you have any justification for even thinking about changing the ESA rate before 25^th October. Regardless of what your rules say, this is exactly the right thing to do in the circumstances and I know someone has the discretion to act accordingly if they so wish..

2.    Content

Your letter does not cover the whole of our conversation on 27^th October.  The notable omissions are:

·      Your admission that although a copy was available, your DM did not use my complaint letter to Atos dated 8^th October in making the decision.  I would remind you that it is the job of a DM to consider ALL of the information available.

·      Your statement that “on reflection” I should have been given 9 points for standing/sitting, but it was irrelevant as the total was still less than 15.  DMs are required to assess capability fully and attribute points accurately.  They do not have the discretion to “round” scores so crudely in this way.

A significant issue you are missing here is that a claimant’s response to a WCA will be very different depending on whether the points total is 12 or zero – the former indicates that some incapacity has been acknowledged, whereas the latter says “there is nothing wrong with you”.  Also, accurate scores are invaluable for data analysis and falsifying them to either 15 or zero distorts the conclusions.  I have heard the proportion of zero point scores quoted on many occasions (including in the House of Commons), which of course influences perceptions.  Accurate scores also allow changes in a condition to be tracked over time. 

·      The correlation you use between being able to self-propel a wheelchair 200m with being able to drive a car for 10 minutes.  There is no reference to this in any WCA/ESA/DWP handbook and you have no evidence to support the proposition – it is just something you have dreamt up for yourself that you regard as reasonable.  You admitted to me in our first conversation that not all DMs would necessarily agree.  You told me that the decision making process is subjective and different DMs could come to different conclusions presented with the same information.  You saw this luck-of-the-draw as inevitable and certainly not a problem for claimants.

3.    Decision Making Diligence

Even you have made contradictory statements, so it is impossible for me to work out who is doing what and where accountabilities lie.

On the one hand you have told me that the descriptor coding completed by the Atos HCP is converted to points essentially via a look-up table – Activity 1(e) = 0 points = no ESA, so phrase it how you wish, the HCP has really made the decision and what has the DM added – nothing that I can see.  There are however several things they could and should have done, all of which are in their job spec:

·      Validate the ESA85 against the ESA50.  An HCP has to make sure that any areas where there is a contradiction are thoroughly investigated so their decision can be seen to be evidence based.  Examples of how a failure to do this exposes the HCP are included in the WCA Handbook.  Mine did not do this as Atos have now acknowledged.  It is the job of a DM to make sure the ESA85 is properly completed and if it is not, reject it.  The errors Atos have found are about process failure which do not require medical expertise to spot.  If the DM had done their job properly, they would have seen the gaps too.  Likewise, in your review you should have spotted them, but no, which can only mean the problem in DWP is endemic.

·      Looked at my complaint letter to Atos.  Any reasonable person with the aim of being objective and impartial would read through it and quickly conclude “Mr. Newman has a point here”.  My letter was quite specific and clear as to where the problems were in line with the paragraph immediately above.  If the DM or you had taken the trouble to read it first, it would have saved you a lot of time validating ESA50/85 as I had actually done it for you.

·      Recognised at very least a degree of ambiguity and the need for additional research and deliberation.  After all, the consequences of making a wrong decision can be dire, so important to get it right first time.  This clearly however does not feature in your thinking as you are undoubtedly a member of the “benefit scroungers” school – this was apparent when you refused to give me even your initial when I asked in our first phone call – perhaps within the letter of the rules, but most certainly not in the spirit of it as described by CMMS.

·      One of your DM colleagues has previously told me that DMs routinely scour the internet for help with decision making,  but no sign of such rigour here with me, although I have to say I do not believe what he told me.

4.    Responsibilities to Claimants

Professor Harrington has consistently highlighted the shortcomings with decision making in simply “rubber stamping” Atos reports.  Chris Grayling has equally consistently accepted the criticism and not only vowed to put it right, but is already claiming huge strides forward, but clearly he is mistaken.  If my DM had done all of the things he has promised, the decision would have been different and I would not have been put through the stress of having to initiate an appeal.

Chris Grayling also says that communication with claimants has greatly improved to the point where if a decision will affect a claimant, they will receive a call to discuss the situation BEFORE the final decision is made.  His overriding aim is to be fair and reasonable, so let me just run you through how honestly and considerately the communication with me was handled:

·      The HCP was questioning me with wheelchair use in mind, but gave me no indication that this was the case.

She seems to have concluded I’d be better off with one, but does not make a clear statement that this was the case – saying there is no reason why I could not use a wheelchair is NOT saying that I should.  So unclear is this, that on reading the ESA85, I thought nothing of it.  Clearly she was hedging her bets and ducking responsibility, perhaps realising the devastating nature of the suggestion.

·      A DM (and you), viewing this as a recommendation decided that I would be more able to work in a wheelchair.  You did this knowing that I had never used one before and that none of the medical experts involved with my recovery had ever recommended one.  This was your decision, nobody else’s.

o  You did not consider any adverse effects there might be on my health, nor take the trouble to ask.

o  You did not consider the broader impact it would have on my life.

You did however consider this approach to be a legitimate way of attributing no points.

·      You then (because you think the rules allow it) decide to ignore this completely and judge my ability to negotiate two steps WITHOUT a wheelchair.  You justify this view on the basis of what I said on the ESA50.  You did not think it appropriate or necessary to ask me the question again based on my new circumstances as you regard them as “irrelevant” – highly relevant on flat ground, but irrelevant when it comes to steps.  The common theme of course is that this approach allows you (you think) to again attribute zero points.

So job done: another claimant with no points so cancel the ESA payments!

·      So what we have here is a decision to consign someone to a wheelchair for the first time in their life made by an administrator sitting behind a desk with two reports, one of which they choose to disregard completely, without any firm basis for doing so.

It is perfectly clear that like HCPs, DMs must be able to provide evidence to support why they have accepted one of two differing views and that is most certainly NOT the case here.   You CANNOT just choose the one you like.

·      Despite the obvious scale of this and the consequences to me, you decided it was adequate to notify me by post, firstly with an ESA65 that tells me I have no points and a standard letter that tells be my ESA has been stopped from three weeks previously.  Neither  of these make any specific reference to me now being expected to use a wheelchair – no phone call to me (or my GP), no invitation to have a discussion at my local job centre – absolutely nothing.

So I am already 3 weeks behind: no ESA and with no wheelchair, no chance of a job.  I have no idea how to obtain a wheelchair, nor how long it will take – neither have you, but this is no longer your concern – you have dumped me off the ESA register.

The fact that there is an appeals process that reinstates a level of ESA is irrelevant and does not in any way diminish the responsibility on you to get decisions right first time.

Finally and probably most perversely of all, I have had a letter from one of your colleagues following my request for help pursuing a long-outstanding earlier complaint with Atos where the extent of the assistance he offered is referring it back to Atos – brilliant!

You are no doubt familiar with your department’s intention to “improve the customer experience” (Touchbase Nov 2011).  As Chris Grayling himself puts it, ”We want the assessment to be as fair and consistent as possible. This is the first step on a journey back to work for many people and we want it to be positive.”

You can reflect on whether this is the case here, remembering of course that the only perspective that matters is the customer’s.

5.    General standards an ethics

You are bound not just by JC+ and DWP requirements but also by the code of ethics that applies to all civil servants – I assume you are conversant with all three.  I will just pick out a few phrases that are relevant here:

·      “Providing additional support for ESA claimants, by explaining decisions and discussing options” [I take this to mean voluntarily rather than under duress].

·      “We will be friendly, fair & helpful”.

·      “You (i.e. the claimant) can chose how we contact you”. [My repeated requests to use email have been totally ignored].

·      “You can still talk to us if you’re unhappy with the service you get from any provider working on our behalf”

·      “We will treat you with respect” [I have found your tone on the telephone aggressive and intimidating and at times, tantamount to bullying.  Also in your letter you refuse to reply to anymore correspondence with no explanation as to why – so you can add discrimination to the list.]

·      “’honesty’ is being truthful and open”.

·      “‘objectivity’ is basing your advice and decisions on rigorous analysis of the evidence [HIGHLY RELEVANT].

·      “’impartiality’ is acting solely according to the merits of a case [requires ALL the information to be considered.  Knowing a complaint had been raised, you still chose to give benefit of the doubt to Atos rather than me].

·      “carry out your fiduciary obligations responsibly” [which I take to mean generally not just parochially.  You created a situation where a TS hearing is inevitable when it could have been avoided].

·      “deal with the public and their affairs sensitively”.

·      “handle information as openly as possible”

·      “correct any errors as soon as possible”.  [On 27/10 when we first spoke, you could have accepted it was wrong to have ignored my Atos complaint letter and put it right, but chose not to].

·      “you must not be influenced by improper pressures from others”. [Given the lack of objectivity and rigour, one can only assume that this has been the case – I don’t really think this is just a case of incompetence].

·      “you must not ignore inconvenient facts and relevant considerations” {HIGHLY RELEVANT]

There is more, but I think this is enough to make the point.

In summary, neither you nor the actual DM have

·         done their job properly in relation to the WCA process itself nor the general public service standards that apply.

·         communicated as dictated by government policy.

It seems to have escaped your notice that I have now had 3 WCAs that have declared me fit for work and all 3 have been wrong – doesn’t this in itself paint a very clear picture?  It would to anyone who is genuinely impartial.

Prof Harrington’s latest report has just been published and it will be interesting to see how much of this he has detected or whether yet again he has allowed the wool to be pulled over his eyes.

.

Finally, whilst I do not particularly want or expect a reply to this letter, I did write to JC+ on 10^th November regarding my appeal but with other questions that you simply cannot refuse to answer, so I would like this information soon and I repeat my request that you use email.  I have spoken to your call centre about your refusal to communicate and they have advised me to complain to my MP.

Yours sincerely