Important ESA payment decision

An important ESA tribunal service decision to note acheived by someone far cleverer than me.

"I have just won at the First Tier Tribunal in Norwich on the 15th March 2012 with regards a decision about ESA that may have consequences on a national level. I argued that applicants who have not had an ATOS medical assessment within the 13 week assessment period are entitled to the work related activity component (“WRAC”) from the end of week 13 up until a Decision Maker finally finds the applicant fit for work (if this being the case) as a result of finally attending an ATOS medical. The conditions for payment of the WRAC are in Section 4(5) of the Welfare Reform Act 2007. Firstly my client had not been deemed to have limited capability for work related activity under Reg 30 ESA Regs as he merely supplied a GP’s sick note in order to claim ESA.The assessment phase is described in Reg 4(1)&(2) of the ESA Regs. The DWP argued the assessment phase continues indefinately (past 13 weeks) until an ATOS medical is carried out and a decision is made. I argued Reg 4(1) needed to be followed (13 weeks only) as reg. 4(2) was not engaged as my client had not attended an ATOS medical within the 13 weeks and was deemed to have limited capability for work under Reg 30 ESA, therefore 4(2)(a)&(b) were not engaged! The Tribunal found in my favour and instructed the DWP to make the WRAC payment from week 13 onwards even though my client had not attended an ATOS medical. Quite simply the DWP cannot keep clients waiting month after month for an ATOS medical and therefore be financialy penalized through no fault of their own. Obviously we await the posibility that the Sec of State will wish to appeal this decision"

Ongoing DWP Deception & Misrepresentation with WCA (1)

Not a surprise to many that this takes place, but I will continue to highlight examples as best I can to help you avoid the pitfalls and add to the fast growing body of data that exposes the underlying political dogma that lends itself to legal challenge at some point.

This post relates to the March 2011 decision to remove the bending and kneeling test/descriptor from the WCA, the reason given being that these movements are no longer a significant feature of the modern workplace.  Who says?

DWP’s response was that disability equality legislation has been in place for a number of years and this was enough to indicate that the descriptor changes were justified.  They directed me to a couple of reports that would apparently explain the detail and provide the corresponding evidence.

They did nothing of the kind and one even pointed out that overall, there had been deterioration in compliance with the law since 2005!  More ironic was the fact that in the first few pages, DWP has printed is standard disclaimer saying that the view expressed in the report are not necessarily supported by DWP.
If this is the best “evidence” they have, God forbid, but they have been unable to provide anything better to justify the descriptor change.  All this proves of course is that the REAL motivation is coming from political dogma NOT sound scientific evidence – something many know or suspected already.

Sooner or later, this continual drip, drip, drip of undermining and disproving the propositions on which policies have supposedly been based will expose the sham for what it is and bring about the obvious and simple change of direction needed.

THE ATOS “INDEPENDENT” (Ho ho) TIER

For anyone who is progressing a WCA complaint through Atos and reached level 3 and the so-called “Independent Tier”, you might find the following notes helpful.

You will get the impression that rather like the Tribunals Service, there is a panel of experts who adjudicate in some form of hearing.  Apparently not so – it just involves two individuals: one who looks just at the way the complaint has be handled by Atos, the other looks just at the medical exactitude of the WCA.  They work independently and never meet.  Any suggestion that the hearings can be observed is therefore fallacious and gives the impression of a much more substantial arrangement than really exists.

It is absurd to insist on the fact that they are independent when, on Atos’s own admission:

1)      AH know who they are and I do not.  I am not even sure DWP knows.

2)      “AH will determine whether a referral to the Independent Tier is appropriate” (a quote from the Atos complaints manual).

3)      “The (AH) Team Leader will determine the nature of any corrective action appropriate”  from IT conclusions. (ditto).

4)      “The Independent Tier will not provide views or judgements to any person outside AH” (ditto).

5)      “IT results will be published in an approved format”, but nowhere does it say approved by whom or what this format is.

6)      Only the AH convenor can communicate with IT and arrange any contact or obtain additional guidance (paraphrased).

7)      DWP says it has no idea what (if any) contractual or commercial arrangements exist between AH and the IT.  Any costs associated with use of the IT are not directly charged to DWP so must affect Atos profit margins – undoubtedly an incentive to use it as little as possible.

8)      There is no competitive tendering process for selection of the IT – Atos appoint who they like.

9)      DWP will not even disclose the nature of the IT’s business and so cannot demonstrate they have any qualifications, experience or credentials to adjudicate in this area.

10)   Because of the secrecy, DWP cannot conclusively prove that any of the processes it describes actually exist.

11)   There are no detailed documents listing the exact criteria the IT assesses so it is impossible to judge what job they are doing let alone how effectively they do it.  The Atos Complaints manual refers to the IT checking against “agreed processes”, but NOT what they are.  There is a very detailed WCA manual giving guidance to HCPs, but there is no confirmation in anything you have sent me that even this forms part of the IT’s ToR when investigating a complaint.   There must be some form of template to ensure consistency.

12)   Following on from 11), the only reference to service levels requires AH to acknowledge complaints within 2 working days and fully answer complaints within 4 weeks, but the latter is only a “hope” rather than a firm commitment.  What does the IT judge against?  What about the fact that for me they took well over 4 weeks and even then did not address all of the points I had raised?  What about all of the correspondence with Atos since – what response times must they adhere to with these?

13)   Although DWP says claimants receive copies of everything Atos provides to the IT, nobody can independently prove this is the case.

14)   Likewise, nobody can prove that IT adjudications are not edited prior to publication.

15)   Informal contact between Atos and the IT is perfectly possible.

The second disgrace is over the secrecy which is a far bigger issue than many might imagine.  CMMS has indicated two reasons:

1)      The Atos/DWP contract apparently requires the identity of the IT to be kept secret and DWP claims there will be commercial implications (unspecified) if they breach this clause.  Obviously very stupid to allow this to be in the contract and it should be renegotiated to allow disclosure.  Carefully done there is no reason why it should have any financial consequences, so this is just a smoke-screen.  

2)      DWP continues to insist that in principle that the IT’s impartiality is only secure through anonymity, which is hugely worrying in a democratic society, supposedly built on transparency and the principle of public accountability.  The Tribunal & legal systems work OK in the open, so why not the IT too? I’m sure they can see the contradictions and outright hypocrisy, but will not budge.

For 2), I can accept the contractual constraint as a short term barrier, but nothing else.  CMMS will hide behind the FoI Act for ever so this needs something more direct.  Personally, I’m not convinced there is any deliberately established bias going on here and it is more a case that DWP is embarrassed by how flaky the whole IT arrangement is – a couple of blokes sifting through piles of papers whilst watching telly over the weekend??????

This secrecy nevertheless should be a great worry to all political parties except perhaps any hard line communists and fascists.

Atos HCP or DWP DM - who decides what????

I will not have been the first person to attend a WCA with difficulty walking only to find that the Atos HCP decides, contrary to my medical advice, that I'd be better off and therefore more able to work if I had a wheelchair.  My HCP's wording on the ESA85 was a little ambiguous, but not enough for the DWP Decision Maker to question it, so I was deemed fit for work etc.

Although I was aware that descriptor wording had changed, I did not for one minute imagine the references to wheelchairs was for anyone other than those people who regretably use one all of the time.  I was of course very "uncomfortable" about the principle of a DWP administrator contradicting expert medical advice.  I was also staggered at the suggestion that my life would be better in a wheelchair rather than not!!!!!!

The DWP DM had claimed just to have followed the Atos "recommendation", but as the HCP's statement was not a clear recommendation, I decided to first pursue this through Atos to clarify quite what it was the HCP was saying.  This is all part of being crystal clear about who is deciding what and therefore finally who is ACCOUNTABLE for what.  My question was:

"Could you please confirm that Ms XXXXXXX (the HCP) felt that my work capability would be enhanced being in a wheelchair, so it in fact amounted to a recommendation?"

The answer from the Atos Customer Relations Medical Adviser was:  

"The health care professional (HCP) merely advises the DWP Decision Makers of their opinion as to which of the mobilising descriptors might apply according to the descriptor definitions as laid down in the legislation and as summarised in the ESA handbook. This advice to the DMs is not in any way a suggestion or a recommendation to the claimant as to which aids, appliances or adaptations he may or may not benefit from, or may or may not consider using.

The HCP cannot provide advice to claimants about treatment or aids they may wish to deploy to help their specific medical condition, and it is not within their remit to provide advice about adaptations for possible employment.  That is for other health care professional who are involved with the customer's medical care."

Have you ever seen such an absurb contradiction? - watch this space, it will be interesting to see how DWP squirms around this one!.

 

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.

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.

http://www.theyworkforyou.com/pbc/2010-11/Welfare_Reform_Bill/22-0_2011-05-17a.6.0

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

THE REAL BENEFIT FRAUDSTERS

We certainly have some, not on the streets as the Government would have us believe, but within their own ranks and in office running DWP. 

The purpose of this blog is to warn you about a couple of particularly dishonest facets of a WCA that you will have to face.  There is no point bellyaching at Atos or DWP Decision Makers (DM), because they will rightly tell you that they are just following the rules laid out in the legislation and they are right.  So target the legislators!!!!  It goes like this:

In around March 2011, the test relating to bending and kneeling was completely removed from the WCA.  This has been in the pipeline for the best part of two years.  For most people with a muscular-skeletal problem, this is usually the most difficult manoeuvre and so would attract most WCA points.  What better way therefore to reduce points totals than to remove the test altogether.

The “justification” is that years of H & S legislation has meant that bending and kneeling is no longer a significant feature of the modern workplace.  You can argue this until you are blue in the face, but this is what the law now says.  It is supposedly the view of the occupational health experts, but I have yet to find any research or empirical evidence that suggests this might be true, nor anything from the Government that measures the level of compliance.

A rough analogy is with the 70 mph limit on the motorways – in place for years and despite fairly proactive policing, on the Government’s own admission, 50% motorists ignore it.  I do not know why they think compliance here would be any better and with less active policing, probably much worse.

Then there is the question of mobility.

The first test used to be about walking, now referred to as “mobilisation” (slightly odd as the word is more to do with preparing to move than actually moving).  This in itself is ok and better accommodates anyone in a wheelchair who can get about just as well as anyone walking.  However, the Government (not Atos and not the DWP civil servants) have placed an interesting twist on this.

You will now be judged not just on the distance you can walk (without exhaustion & pain free etc) on level ground, but whether you could cover the distance in a wheelchair WHETHER YOU ALREADY USE ONE OR NOT.  Atos HCPs are told in the WCA Manual (sanctioned by DWP) that they must make this consideration and that self-propelled wheelchairs are in ample supply.  So be very careful how you answer questions about upper body strength, as this is what they have in mind.  State quite clearly that you could not manage to propel a wheelchair, or they will assume you can. 

In my WCA, we talked about making a cup of tea and in the absence of any indication to the contrary, the HCP concluded that there was no reason I should not be able to self-propel a wheelchair more than 200m = zero points.  There was absolutely no specific discussion about the possibility – how dishonest can you be???

If this was not deceitful enough, it gets worse.  The next test is about getting up and down two steps and (like me) you may have said on your ESA50 questionnaire that this is something you could manage, so zero points.  However, the situation has changed, because I have now been consigned to a wheelchair as described above, so would accrue some points here you would think – but no, on the basis of what I said on the ESA50. 

So the full scenario that goes alongside zero points for both is that you cover the flat surfaces in your wheelchair, but when you reach the two steps, you hop out and walk down them and get back in the wheelchair.  But hang on, the wheelchair is still at the top of the steps . . . . . . . . .

Decision Makers have been told to ignore this broken logic, so little point in shouting at them.  Nor is it worth asking for an opinion, as they will not give one.

I am sure there will be other equally dishonest and unfair clauses in the legislation that I have just not come across and the only answer lies with parliament, so lobby your MP as loudly as you can as often as you can.

Muddled Government Thinking

It repeatedly tries to tell us that GPs are rubbish at assessing fitness to work – they have an axe to grind, so cannot be regarded as independent, impartial or objective.  What this means is that they disregard the Hippocratic Oath and will actively work against government policy and the best interests of the national economy for no good reason other than presumably subversion and self interest.  This is of course based on nothing other than the fact that the Government does not like the outcomes from GP health assessments and so feels the need to undermine their credibility.  If I was a GP, I would be incandescent over this slight on my integrity.

It is very important to separate out the different elements of the WCA and address them separately.  The simple fact is that GPs make their judgement based on different criteria, so a direct, simplistic comparison in any way with Atos HCPs is automatically invalid.  So the first step is to segregate the 3 main elements of the WCA:

1.    The parameters within the WCA – what tests should it contain to make a sensible and realistic assessment of one’s ability to work?  This includes the consistency needed (same times every day) as well as the ability to get about etc.  I have worked for 40 years and none of my 3 WCAs tested anything like what it takes to survive a typical day.

2.    Who could and who should perform it (and probably where)?  For debate another time.  Actually this hardly matters if the assessment itself is correctly constructed and performed well – as long as the HCPs are suitably qualified/experienced.

3.    Compliance with the WCA specification – how well do the people doing it actually do it?

Despite the Government’s protestations that the content of the WCA has been designed by experts, there is still a widespread and justified belief that is not fit for purpose.  As I’ve said above, it bears little resemblance to any job I have ever done, so no surprise its outcomes are so regularly challenged successfully.

In an attempt to fix this problem the Government has progressively and dishonestly changed the assessment parameters simply to manipulate the results and in so doing has lost all credibility for itself as well as the WCA.  These changes have been based on some wholly spurious but convenient assumptions about the effect of legislation that cannot be supported with hard evidence or empirically.   In addition it has turned a blind eye to the non-compliance that is endemic both within Atos and its own Decision Making ranks.  I have never seen such a transparent deception and the fact that so many chronically disabled people have been so badly mis-assessed should cause it to hang its head in shame.  A justification based on not being able to make an omelette without breaking eggs is both inappropriate and pathetic – the ends do not justify the means nor vice versa.

A muddled approach to solving quite seperate issues is guaranteed to produce a muddled solution doomede to failure.

Saddest of all, approached logically, none of this is necessary, so I am left wondering whether the Government is stupid or evil?  Answers on a postcard please . . . . . .

ESA Decision Appeals heard by Tribunal Service (2)

Following on from my previous blog, the same report states that about 2/3rds of TS reversals are because the TS was presented with additional information.  DWP will of course use this in an attempt to explain that the high reversal rate is not down to poor decision making.  However, they will not so readily admit that the report also states:

“The 65% figure for the production of additional evidence suggests that an important source of information is being overlooked in the decision-making process. There continues to be a tendency on the part of decision-makers to discount oral evidence received from the appellant in the process of evidence gathering prior to the decision and then in the preparation of the appeal, and not to seek out new evidence to verify the facts where the decision has been challenged. Where a decision is challenged it is the duty of the decision-maker to review the initial decision, satisfy themselves that the facts are correct, ensure that there is no further evidence that might lead to a review and where they do not accept evidence or doubt it explain why, making this explicit in the submission to the tribunal.”

One would imagine that in the interests of effective staff performance management, DWP collates TS outcomes by Decision Maker as the basis for re-training etc. but NOT SO.  The strong and clear recommendation above has just been ignored for the past 2 years!!!

I have also asked DWP what disciplinary action would be taken against an experienced DM who ignored an important, relevant and readily available piece of information when making their decision and the answer is none, but based on the obviously false premise that the training is so good and instructions are so rigorously followed that this could not really happen – purely hypothetical therefore.  If you then refer to the TS reversal rate, DWP does not consider that it reflects poorly on DM’s – talk about burying your head in the sand!!!

The management here is so demonstrably poor it amounts to a dereliction of duty. 

Teresa May has demonstrated this week (albeit over zealously and therefore to our cost) that the Government can take swift action with poor performers on the payroll, so why not here too?

The DMs do not appreciate (and probably don’t care) about the devastating effect their decisions can have on people’s lives.  No one would begrudge them the odd mistake, but the wholesale, overt bias in what they are doing is unforgivable and they should be brought to account accordingly.