FoI Act Request - ESA paid to mass murderers

27 October 2011

Dear Department for Work and Pensions,

I have read that some convicted criminals serving long term prison sentences for very serious crimes (including mass murder) have successfully claimed ESA payments on the basis that they are being held under the Mental Health Act and it is their "illness" that is preventing them from working.

a) Is this true?
b) What is the current average weekly cost of ESA and any other benefit payments to these people?
c) What is the current average weekly cost of all benefits payments to all prisoners, excluding those unconvicted and held on remand?
d) What legislation allows these payments to be made?
e) Does DWP regard these payments are equitable?
f) If not, are there specific plans in hand to amend the legislation and by when do you aim to have them implemented?

Yours faithfully,

The Atos Complaints Procedure and the Invisible Independent Tier - what is the point?

As anyone who has used it will know, the internal Atos WCA complaints process is pretty poor.  The second level doesn’t stick to the laid down process and the third and final level, the so-called Independent Tier (IT), is a complete misnomer being shrouded in so much secrecy it is impossible to find out anything about it – so much for the principles of transparency & public scrutiny that the Government claims to be so keen on!!! You will get more hits on Google by searching on Opus Dei!!

Worse still, being appointed, controlled and paid by Atos itself it can hardly be described as independent as DWP continues to insist, unless there is a meaning of the word I have not yet come across.  We are still however expected to trust its integrity and believe that whatever changes it recommends within Atos are enthusiastically embraced, faithfully implemented and sustained.  Who knows?

Many people have tried to break through this absurd, undemocratic barrier to no avail.  The practical problem is that DWP has foolishly allowed the anonymity of the IT to be included in its contract with Atos, so releasing its identity would place them in breach of contract, which probably has financial consequences.  This may be a problem in the short run, but the terms of any contract can be renegotiated, so hopefully DWP has recognised its naivety and already has this in hand (???).

But my purpose in writing this is simply to ask from a claimant’s point of view “What is the point of using the Atos complaints procedure at all?”

Most commonly DWP has received the WCA results (the ESA85) from Atos and acted upon it before a claimant has received a copy and has decided whether or not they want to complain to Atos.  [Note that claimants have to request a copy of their ESA85 if they want one and can only request it  from DWP, not Atos as contractually DWP owns it.  They are not issued automatically and DWP can of course control the sequence of who sees what & when].  The claimant’s first notification is therefore normally a letter from DWP say whether or not ESA will continue to be paid – by which time of course the damage may well have been done.

There is (at least for the time being) an appeals procedure through firstly DWP itself and then on to the Tribunals Service, but it can be many months before the appeal is heard by the TS.  This process takes its course whether or not you have raised a complaint with Atos and the TS will take its decision regardless of an ongoing or finalised complaint with Atos – it has no bearing whatsoever on the appeal process or its outcome. 

In fact a DWP decision maker will happily use an ESA85 they know has been contested, meaning it is Atos that receives benefit of the doubt, not the claimant.  So much for the “support” Chris Grayling has promised.

So as far as I can see, there is absolutely nothing to be gained from complaining to Atos, other than perhaps to let off some steam!  If Atos does accept your complaint is valid, they will not automatically admit an error to DWP and DWP will be continuing with its procedures anyway.  DWP claims to maintain an interest in complaints made to Atos, but only from a distance, NOT sadly on a case by case basis, which is where the Atos errors have the greatest impact.

Hansard 24/10/2011 - Grayling on no ESA during appeal period

Unfortunately, Mr Grayling does not indicate the level of WCA accuracy needed before even thinking about this proposal nor how he would deal with the error rate no matter how small it might be.  Of course if it is extremely small allowing appeals to be heard quickly, maintaining payments is far less of an issue.

Hansard  24^th October 2011

Gemma Doyle (West Dunbartonshire) (Lab/Co-op): What the average length of time was for an appeal in respect of a decision on a claim for employment and support allowance in the latest period for which figures are available. [76004]

The Minister of State, Department for Work and Pensions (Chris Grayling): In the current year, the average actual clearance time between the Department’s receiving an appeal and its being lodged with Her Majesty’s Courts and Tribunals Service was 35.2 days. That, of course, includes the time allowed for individuals to produce new evidence about their circumstances. The average time taken from receipt of an appeal at HMCTS to the date of the first appeal hearing was 23.2 weeks. That information covers 1 April to 31 August 2011, the latest period for which figures are available.

Gemma Doyle: I thank the Minister for his detailed answer. Will he take this opportunity to refute press reports that he will cut the ESA of people who appeal against assessment decisions, especially in the light of the information that 40% of cases are being won on appeal?

Chris Grayling: What I expect to see as a result of the changes following Professor Harrington’s review in the summer is a significant reduction in the number of cases that go to appeal when the Department’s initial review and the reconsideration are upheld. In order to ease pressure on individuals, we have tried to ensure that there is a proper reconsideration service in Jobcentre Plus, so that they can produce new evidence at that stage and need not use the Courts Service at all.

Is this the key to the Government's intransigence and denial over the WCA????

http://www.dwp.gov.uk/docs/work-capability-assessment-review.pdfCall me dim, but it has taken me a long while to unearth this report, published in October 2009.  It claims:

·         That a detailed analysis of WCA decisions by experts confirms them to be extremely accurate in identifying who can and cannot work.  This is of course completely at odds with the turnover rate at Tribunal appeal hearings (40%).

·         That substantial changes to descriptors can be justified by corresponding improvements to workplace design, although there is no data to support this.  These changes are disguised under the banners of “removing unnecessary complexities” and “simplification” with the aim of “transparency”.

·         Crucially, to have the support of a number of well respected representative organisations and experts in the field, all listed in Appendix B.

Admittedly it has been superseded by Professor Harrington’s work in 2010, but despite assurances to the contrary, DWP is still blindly following the theme and recommendations here.

I will add to this post once I have looked through the report in more detail.

12m limit to contribution-based ESA - a reply to Lord Freud

If Lord Freud would like this change in legislation to be seen as anything other than an undeserved and unjustified attack on the disabled, I am afraid he has to reason his case better than this.  This policy has not been thought through very well and looks like a knee-jerk reaction to cut benefits payments regardless of consequences.

1.  The clue to the purpose of NI contributions is in its name.  It was conceived and always has been an insurance against certain unfortunate events that might arise in one’s working life, so the Minister cannot now change the terms on a whim.  If the same were to happen in the private sector it would be classed as mis-selling and require financial compensation, so what is the Minister offering as an equivalent here?

2. I can understand his concern about people who may have made few contributions over a short period but claim substantial benefits over a long period, but if legitimate, this is what a compassionate society does.  There is however no reason to effectively penalise their counterparts who have made contributions over most of their working life.  If this was a genuine concern, he would have geared the input and outputs accordingly. 

3.  Providing the necessary support to the people who are worst affected is clearly important, but it is inconsistent to do this through the contribution-based benefit, particularly as the Minister claims to have concerns about the correlation between NI contributions and contribution-based payments.  This rather undermines his logic and casts doubt over his motives.

4.  There appear to be only two classifications of illness – permanent and temporary and the dividing line falls at 12 months – a totally arbitrary time limit based on no data or evidence whatsoever.   With some conditions, recovery within 12 months may be perfectly reasonable in the normal course of events, but clearly not with others.  The fact that recovery might take longer than 12 months obviously does not necessarily make the illness permanent. 

5.  This policy discriminates against the elderly where recovery times are generally longer.  Ironically, this is also the group that have probably paid most NI contributions.

6.  Yes, income based ESA is still there, but the qualification bar particular as regards savings is extremely low.  The Minister well knows the pressure the Government is placing on pensions and is encouraging us to save for retirement, but then expects us to use those saving prematurely when it suits.

7.  The Minister refers to the right help and support.  I have been to my local JC+ and they had no idea what this means.  Previously I had been pointed towards Working Links who likewise were no help whatsoever.

8.  The notice offered for this change in itself is inadequate and effectively retrospective.  At the very least, the clock should not start running until the proposal becomes law.

This might not be so bad if the Government was adopting the same aggressive approach to high earners, but this is not the case.  Rather the reverse, where for them the Government is following a policy of lower taxation.

If the Minister is so keen on leaning more heavily on means testing as the basis of benefits payments, where on his agenda do the other non-means tested benefits fall, including of course the state pension?  I think I am right in saying that Sir Richard Branson and I both have the same state pension entitlement?

Also, where on his list of priorities are dealing with the ESA payments made to convicted mass murders and the benefits paid to families of migrant workers only one of whom might have spent as little as 6 months working in the UK?

I am afraid that there is no way to interpret this policy other than the Government has picked out a relatively defenceless group that it regards as an easy target. 

12m limit to contribution-based ESA - an explanation from Lord Freud

It may be helpful if I first explain that ESA is structured into both contribution-based and income-related elements. lf a person does not satisfy the National Insurance contribution conditions for ESA, they can claim income-related FSA provided they satisfy the eligibility criteria. Once a claim for ESA has been made, people are then expected to undergo a Work

Capability Assessment {WCA) which will make a functional assessment as to whether they are capable of work, taking into account their health condition or disability.

Claimants who are assessed as having limited capability for work will be placed either in the Support Group or the work Related Activity Group.  Those who are placed in the Work Related Activity Group are expected to undertake some work-related activity with a view to moving into employment in the short to medium term.

Those with the most severe health conditions or disabilities for whom work is not viable, are placed in the Support Group. These claimants are not expected to undertake work-related activity, although they can do so if they wish.

As part of his Spending Review announcement on 20 October 2010, the Chancellor set cut his intention to introduce a time limit of one year far those claiming contributory ESA who are placed the Work Related Activity Group only. ESA for those in the Work Related Activity Group has always been intended to be a temporary benefit for people in this group who are expected to move towards the work place with the right help and support.

However this will not affect all ESA claimants. People in the Support Group who we do not expect to work or prepare for work will not have their contribution-based benefit time limited

Nor will people claiming income-related ESA have their income-related benefit time limited even if they are assessed as able to participate in work-related activity. This is in line with our commitment to support and protect the most vulnerable and disabled people in our society.

Currently people can qualify far many years of benefit on the basis of National insurance contributions made over a relatively short period of time.  This is no longer acceptable in the current fiscal climate where we need to review the balance between contributions paid and indefinite entitlement to support. We do not think that it is right in principle that those who are assessed as able to undertake work-related activity should be able to remain on contributory ESA for an unlimited period.  We have therefore decided to introduce a one year time limit on entitlement to contributory ESA.  By rebalancing the benefit system in this way we believe we are being fair to recipients as well as making the support provided affordable to the taxpayer.

Yours sincerely

Lord Freud

Minister for Welfare Reform

FoI Act Request - The reality of ESA Decision Making

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.

1. 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".

2. 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?

3. 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.”

4. 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?

5. 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?

Yours faithfully,