ESA Decision - Appeal
This letter is intended both as an appeal and a complaint about the way the decision was handled.
The comments below are largely a result of a telephone conversation with your Mr Wrong on 27th October 2011.
1. ESA214 states “To be entitled to Employment and Support Allowance, claimants must be found to have limited capability for work which means that their current health condition or disability restricts their ability to work”.
You scored me zero points, which is the lowest score possible and a score that would be given to, for example, a professional athlete. You therefore think that my ability to work is completely unrestricted, which is simply not the case.
2. ESA214 states Decision Makers (DMs) must consider ALL of the information available and mine did not, having completely ignored my letter of complaint to Atos dated 8th October. The only reason for the delay from my WCA on 23rd September was the time it took to get a copy of the ESA85 to confirm my suspicions. Note that it was so poorly conducted that I raised the complaint before knowing the ESA decision. The complaint explains that some information I provided was omitted from the ESA85, so that could not have been considered by the DWP decision maker either.
ESA214 confirms that information from a doctor is relevant, but Mr Wrong said it is irrelevant and was not considered. The Atos HCP also brushed it aside on the same basis.
3. A DWP DM is charged with validating the quality of the ESA85 and referring it back to Atos if it is in any way unsatisfactory. Mine was and even with my letter of complaint to assist no action was taken. My belief is that the DM looked at the Atos summary and did no more than convert it to points, which is a serious dereliction of duty.
4. Mr Wrong said that he agreed with no points for Activity 1 on the basis that I could mobilise over 200m in a self-propelled wheelchair, even though none of the NHS team involved with my condition has ever suggested a wheelchair would be beneficial to my recovery. In fact, my orthopaedic surgeon has advised precisely the opposite.
This was not mentioned during my WCA although the Atos HCP included a statement on the ESA85. The only discussion about my upper body capability was in the context of light domestic activities. I did not raise this matter in my complaint to Atos as I did not at the time appreciate its relevance.
I am still considered to be recovering from the major surgery I had in 2010 and have yet to reach the point where no further improvement is likely. It would be fundamentally wrong and inhibit my recovery to rely on a wheelchair at this point. I have attached a copy of an X-ray to demonstrate the point.
I do not believe or accept that this is the correct or intended interpretation of this activity and it is therefore a completely spurious basis on which to make a decision. You are effectively saying that my capability to work is improved by being in a wheelchair over not being in a wheelchair. The decision is clearly unsound.
5. Mr Wrong said that the conclusion that if in a wheelchair I could self-propel at least 200m was based on the fact that I can drive a car for 10 minutes. He admitted that this “assumption” is not based on any evidence or included in any of the WCA/ESA manuals and guides, but something him and some, but not all, DMs would use. When I pointed out the problems subjectivity and inconsistency cause to claimants, Mr Wrong indicated that both are inevitable as the decision making process is very subjective.
The assessment must consider repeatability (within reasonable timescales), discomfort and exhaustion. When I asked where these featured, Mr Wrong was unable to answer – because they had not been.
In the absence of any foundation for any of these assumptions, they can only be treated as irrelevant and any decision relying on them must be wrong.
6. Mr Wrong was unable to explain the obvious inconsistency in basing my potential mobility on being in a wheelchair and then ignoring it when it came to negotiating 2 steps.
7. In other correspondence from DWP I have been assured that DMs assemble all the relevant information they can to ensure their decision is objective, informed and balanced. This specifically includes routine research on the worldwide web. Mr Wrong confirmed that in this case no information other than that on the ESA50 & ESA85 was considered, including the fit-note from my GP. Contrary to what I have been told previously, Mr Wrong did not regard any of this additional information as relevant. The missing/inaccurate information included in my complaint to Atos obviously has a bearing here.
The DM has clearly NOT fulfilled their responsibilities to consider all the information available.
8. When discussing Activity 2, Mr Wrong acknowledged that just from the information that was available, 9 points would be more accurate than zero, but it was academic as the total would still be less than 15 and the ESA decision would remain the same. DMs are required to calculate points accurately and have no authority to wrongly assign them regardless of totals or any other circumstances.
9. ESA214 states that DMs and Atos HCPs are required to explain fully any conclusions they draw and decisions they make that are contradictory to the information on the ESA50. Both the HCP & DM have failed to do this.
10. Neither the Atos HCP nor the DM considered the variability I described with my condition. How this should have been dealt with is covered by my letter to Atos. I emphasised to the HCP that this is the most significant aspect of my condition, but she has failed to convey the relevance in her report.
11. Neither the Atos HCP nor the DM considered the levels of pain and stress I described at the WCA. I explained to the Atos HCP that I take the highest dosage possible to the point where the side effects become more serious than the pain itself.
12. Your letter informing me of the decision to stop paying ESA from 5th October arrived on 27th October, so the decision was retrospective by 3 weeks. This is your fault not mine and I do not believe you should attempt to claim any payments back.
Finally, I have shown below an extract from your “Our Service Standards “booklet with further details of my complaint inserted in blue.
OUR SERVICE STANDARDS
Our responsibilities to you
We want to give you the best service we can. When you contact us, we want you to be happy with the advice we give you and the way we treat you.
Right treatment
We aim to treat all our customers in the same way. We will:
• be friendly, fair and helpful
• treat you with respect
• behave professionally
I do not believe you have done any of this – certainly when you first told me my ESA had been stopped 3 weeks retrospectively. Clearly such a decision was going to have a marked impact on my life, but all you saw fit to do was send me a rather bland letter with no explanation whatsoever. II had to call you to find out what was going on.
When we contact you
You can choose how we contact you – by phone or in writing. But to keep your personal details secure, we don’t include your personal details in replies we send by e-mail.
You have ALWAYS refused to use email despite my requests.
When we write to you
We aim for all letters to:
• be typed, clear and easy to read
• tell you if there is anything you need to do, and
• give you contact details, like a person’s name and direct phone number.
When I asked for a name for correspondence, I was reluctantly provided with just a surname, not even an initial on the basis it is not mandatory. Whether it is or not, this attitude is hardly compatible with a commitment to openness, honesty, help, support and customer service.
Right result
We aim to give you accurate information and the right advice to help you:
• find a suitable job
• get each of the benefits you’re entitled to
• understand the conditions of receiving your benefit, such as attending interviews or looking for work
• understand our decisions
• decide what to do, and
• access other support you may need, such as help to develop new skills or help with childcare or travel costs.
The way you informed me of the decision may have been “accurate”, but it was hardly considerate or complete. At no stage did you indicate that consigning me to a wheelchair was a potential outcome or that this formed the basis of your decision – no straightforward and honest person would read this possibility into the descriptor definition, which I am sure is meant to be interpreted in relation to what is normal for an individual.
Being confined to a wheelchair is not only contrary to my medical advice, it obviously represents a massive change to my lifestyle, beginning with how I get one. I have had no help from you over the other support I will now inevitably need.
So all in all, a pretty poor performance against the standards you say you are committed to. It has never once felt like DWP has been trying to help me – totally the opposite in treating me as if I have not been honest and not once offering any benefit of the doubt.
Yours faithfully
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