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Wednesday, 30 November 2011


FoI Act requests can be useful to establish an official view, particularly if you have hard evidence to the contrary - all part of exposing the flaws in the system.
It will be interesting to see what DWP comes up with in reply

Decision Making Accuracy
Dear Department for Work and Pensions,
The main principle of a WCA is that it concentrates on a claimant’s ability to work. It regards clinical condition/history as largely irrelevant and the WCA handbook instructs Atos HCPs to use drop-down menus and simplify condition/diagnosis wherever possible for the benefit of DWP Decision Makers (DMs) who are not medically trained. As part of the final assessment process, DMs consider a range of available information including information they might have researched on the internet.
How can a DM make an informed, accurate and robust decision if the condition they are researching has not been precisely recorded?  For example, a brain tumour may be recorded as "occasional headaches" and a serious spinal injury might be recorded as simply "back pain".
DWP Reply
Decision makers have to consider all the available evidence, not just the name of the condition. Healthcare professionals are required to take all information into account when providing advice to the decision maker. This includes the diagnosis, medication and history of the disabling conditions including relevant investigations, social and occupational history, a typical day history and relevant clinical findings. Healthcare professionals are required to list the medical conditions as accurately as possible. In addition, they are not restricted to the use of “drop down” menus and can enter the diagnosis as “free text”. It is therefore unlikely that a claimant with a brain tumour would have their condition recorded as "occasional headaches" and equally unlikely that a claimant with a serious spinal injury would have their condition recorded as "back pain".
I am afraid you are very wrong.  The WCA manual produced for Atos HCPs instructs them to simplify conditions for (non-medically trained) DMs.  My own WCA recorded a condition that required extensive surgery as “back pain” 3 times over.  Also the same manual positively discourages HCPs from using free form text in favour of the drop-down menus due to the diagnostic algorithm within Lima.
As quite clearly you laid down procedures are not being followed, what action will you be taking?
Given they are not medically trained, how can DMs interpret and understand information with which they are presented if it uses highly technical medical terminology?
DWP Reply
Atos Healthcare professionals are required to provide information in a non-technical manner, and explain any technical terms for the decision maker. This requirement was reinforced by the implementation of a recommendation contained within the first Independent Review of the WCA. Following this, all reports from Atos Healthcare now contain a personalised summary statement in plain English. In addition, if the decision maker does not understand any technical information within the report they are able to obtain clarification from a healthcare professional.
There is a contradiction here – providing information in a “non-technical “manner may well introduce inaccuracy.  See comments above, particularly regarding my own WCAs.
What is clear is that compliance is poor.
Would they be expected to interpret the following, which relates to a very well known condition: “The estimated rates of this complication are 0.3-4% after total knee arthroplasty and 3-13% after proximal tibial osteotomy.  Ischemia, mechanical irritation, traction, crush injury, and laceration can cause intraoperative injury to the peroneal nerve.”
DWP Reply
Decision makers would not be expected or required to interpret such information. They are able to obtain advice from a healthcare professional in order to interpret technical medical terminology.
Who & where are these HCP’s that DM use?  When a DM consults a HCP, where is the record of the conversation kept?  What records do you keep of this referral frequency?
Not all information on the internet has been fully authenticated and therefore cannot be regarded as reliable. To which websites are DMs therefore restricted and where is this "safe" list documented?
DWP Reply
Decision makers are instructed to use evidence-based guidance known as customer case management which has been developed in conjunction with relevant clinical experts. The guidance is intranet-based but a copy is available on the internet. They are able to obtain advice from a healthcare professional on individual cases.
I have in writing that DMs use websites on the internet liberally without any controls other than their supposed experience.  The risks are obvious.  What corrective action will you be taking?
In many cases medical opinion on a particular condition and its short/long term effects can be divided and revolve around some very complicated features of the complaint. How does a DM resolve such dilemmas?
DWP Reply
Decision makers are able to obtain advice from an Atos Healthcare professional for interpretation of medical evidence.
Atos HCPs vary widely in relation to medical experience.  How can a DM be sure the advice they receive is correct, particularly if medical opinion is divided?  Why in this area would a DM not use expertise within the NHS?

WCA - "Acceptable" error rates - c.f. MOTs

Matthew Sinclair of the Taxpayers’ Alliance has extolled the virtues of the WCA and accepted a 30+% error rate on the basis that it will slowly get better and there is after all an appeals procedure albeit there is a long queue.

I wonder if the same misclassification rate with the same open-ended commitment to improvement and a long appeal process would be acceptable for say car MOTs.  The analogy would be that 30% of cars on the road had failed the MoT and the safety authorities had appealed the decision, but would not know the outcome for another 9 months. 

I think the MoT test would quickly be written off as useless.

There is no corresponding analogy  for the fact that for  9 months one’s income is cut by 30% currently, 100% soon and then the right to appeal would be removed altogether.

Tuesday, 29 November 2011

DWP/ESA/WCA Appeals - Welfare Reform Act

From DWP under FoI Act:  Interestingly in their response, they did not challenge the 40% or 70%.

The proportion of ESA decisions "fit for work" that are reversed on appeal is generally quoted as 40% overall, 70% for claimants with representation.  Whilst there could be several reasons why this is the case, how low would this % have to be (approximately) before
1.       DWP would stop ESA payments during the appeal period and
“there have not been any final decisions for removal of the ESA ‘pending appeal’ awards.”
2.        consider dropping the appeals process in its current form altogether?
“there are no plans whatsoever to remove the right of appeal.”
3.       What are the targeted reductions in these percentages over the 6 and 12 months that would cause the Government to regard its planned improvements as successful - clearly without targets success will be impossible to judge? .
“We do not have a target in the sense you suggest. All the Secretary of State can do is ensure that his decisions makers can make the best possible decision they can. One that can be defended at a tribunal hearing with confidence. As you say above a tribunal may disagree for all manner of reasons. “

Welfare reform Act Clause 99 concern

To quote:
Subsections (2) and (3) of clause 99 amend section 12 of the Social Security Act  to enable the Secretary of State to make regulations setting out the cases or circumstances in which an appeal can be made only when the Secretary of State has considered whether to revise the decision.
The concern with this is that it grants DWP powers to decide which WCAs can be taken to appeal and which cannot - kind of poacher & gamekeeper combined and it is only ever the poor prey that suffers.  There is a partial debate on this link, but it seems Chris Grayling talked his way around the question, so the proposed amendment was withdrawn.

Every concern CG expresses is valid but their combined significance is dependent upon two assumptions he is making, but not declaring – I’m not even sure he realises himself.

Firstly, that everyone is on the fiddle and will exploit whatever loopholes exist.

Secondly, that the appeal rate will be high, so the cost could be high, but this is a reflection on the quality of the WCA.

He cannot see the straightjacket he has created for himself through the “model” he insists on sticking with.  He has positioned the WCA responsibility in a place where our democratic standards demand a formal appeals process through the judiciary system.  Position it somewhere and this need can be largely removed. 

When my doctor tells me something, I do not generally argue or take his decision/advice to appeal.  I basically trust him and his judgement – I might just on odd occasions ask for a second opinion.  This is the framework on which WCAs should be arranged.

The worrying thing about clause 99 is that Grayling and DWP cannot be trusted not to exploit and abuse the powers it gives them.  They have already demonstrated this year that seemingly innocuous phrases in the WCA specification can be twisted into results with huge consequences and they will undoubtedly  do the same here.

To have a situation where DWP itself decides what goes to appeal and what doesn’t is untenable within a democracy and one step closer to totalitarianism.  The odd frivolous referral is the price you have to pay for maintaining civil liberty.

One of the oddities in Prof Harrington’s earliest work is that he took the Atos model for granted without any explanation as to why.  He produced something akin to a PID (project initiation document) where a project’s framework is normally described, but oddly it contained no comprehensive list of inclusions/exclusions or assumptions, which is normally de rigueur for such a document.

If this goes through, we will all be for a far tougher time – declared fit for work with a very limited right to appeal at best.

There is also an interesting question over responsibilities – if DWP says I am fit for work against my wishes and my GP’s advice and my health suffers badly, who is accountable?

PS:   I really do believe that forcing home the issue of accountabilities at a personal level is one of the best way of prompting a reconsideration – the fact that I personally could be in the firing line is a very sobering realisation.

Monday, 28 November 2011

Articulate & Almost plausible, but based on nothing at all

Probably the best TV report I have seen, as it at least gets a bit closer to the true issues.  However, Chris Grayling is still well off the mark,

His main argument was that the report was out of date and did not reflect the the changes implemented in May/June 2011.  I have had WCAs in Dec 2009, Feb 2011 & Sept 2009 and tha last one was the worst, not the best.

He also majored on the fact that Tribunals have more information than his Decision Makers, so it is not so surprising that they are often wrong.  The truth is that the DMs choose to ignore some of the information they do have available - this is certainly true in my case and has been confirmed through the TS's own reporting systems - DMs are simply not doing their jobs.

He clearly wants GPs out of the picture altogether - wrong on every level and a recipe for massive additional cost.  It does however place another task in the hands of the private sector, so is in line with the NHS privatisation policy.

But the real problem, in case it has escaped Mr Grayling's notice, is that THERE ARE NO JOBS, let alone "modified" jobs for those that cannot cope with the normal rigours of conventional employment.

As Del-Boy would say, "What a plonker" 

Saturday, 26 November 2011

WCA Philosophy - ID-S mantra

Thought I'd give this a go through FoI Act, but to no avail.  Perhaps I'll try through my MP . . .

Thank you for your Freedom of Information request on 15th November. You asked:
Germany is regarded as the only European nation that can solve the EU’s economic problems and its economic model is held in high regard. The German expression “Arbeit Macht Frei“means "work sets you free" or "work liberates”. Mr. Duncan-Smith in particular has been promoting an identical philosophy based on work being both
physically and mentally beneficial. Do you/does he feel that the sentiments contained in this expression could be applied to his current objectives and policies?

The Freedom of Information Act 2000 was introduced to bring about more openness and accountability within public authorities.
The Act gives two related rights which came into force from 1 January 2005
·         The right to be told whether information exists
·         The right to receive that information

As your request does not ask for any recorded information, we are unable to answer your request.
The Freedom of Information Act 2000 was not introduced to give opinions or views.

If you would like more information on any specific Government matter, please contact your local MP.
If you have any queries about this letter please contact me quoting the reference number above.
Yours sincerely,
DWP Central FoI Team

Atos feedback through their website

Again, no need to be rude.
Tia Junior says:
Your comment is awaiting moderation.
You cannot expect to have any credibility when the third stage of your complaints process is shrouded in secrecy. As the Government itself has said “Anonymity breeds complacency”.
If the so-called Independent Tier is truly impartial it has nothing to fear from being open to public scrutiny – just like the Tribunals Service.
The suggestion that impartiality can only be achieved through secrecy is the exactly opposite principle to the one on which the entire UK legal system is based.
This is straight off the Atos website:  DWP has been very evasive about this project, but this at least confirms where the publication hold up is
Recording of Assessments

Piloted, following the Harrington Report 2010
Professor Harrington also asked us to pilot the audio recording of assessments to see if it might be helpful to customers and whether it would have any positive effect on quality.
A team was set up to look at the process for:

Getting consent
Recording assessments,
Ensuring recordings were appropriately used
Meeting data storage and data protection requirements as set out by the DWP
A pilot was then set up inviting 500 ESA customers to have their assessment recorded. The findings of the pilot have been shared with DWP, including the feedback from a cross section of customers who were surveyed about their experience.

Feedback to Atos

This link is to the Atos Website and it invites comment: mine is below, but has not yet been moderated, so may soon disappear.  No need to be rude, just ask the right questions
Tia Junior says: Your comment is awaiting moderation.
If a HCP concluded that an individual’s mobility would be improved if they were in a wheelchair when they do not normally use one, should the HCP discuss this directly with the individual at the time?
If a HCP holds the view that a trip to the supermarket means being able to walk, say 400m, should they make that clear to the individual, rather than run the risk of a misunderstanding? Supermarkets vary in size enormously.

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

Job Centre Plus
Wellingborough BDC
St Stephens Street
B99 1AB

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 12th November, but not the one dated 22nd 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 27th 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 5th October.  It was not. Your notification letter was dated 25th Oct (I received it 27th Oct) and you made a WRAG level payment on 26th 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 25th 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 27th October.  The notable omissions are:

·      Your admission that although a copy was available, your DM did not use my complaint letter to Atos dated 8th 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 10th 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