ESA Appeal to DWP - from a poor WCA by Atos

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 27^th 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 8^th October.  The only reason for the delay from my WCA on 23^rd 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 5^th October arrived on 27^th 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

Addendum to Atos Complaint

Re:  Complaint - Update

Dear Ms Smith

My main purpose for writing is in connection with my WCA on__________.  Since raising a complaint on 8^th October having seen the ESA85, I have been given further information by the DWP, so I have had to revisit the ESA85 from a slightly different perspective.  I do not think it alters the basis of my complaint and should not delay progress, but it raises questions over trickery and deceit on which I would like your comments and/or help – some of the points are specific to my WCA, some are more general and I have made them as clear as possible so you can answer precisely.  Your response could add to the appeal  and complaint I have already raised with DWP, based on where it transpires  responsibilities for certain issues lie, which is the main issue I am trying to resolve.

a)      The declared intention of a WCA is to concentrate on what a claimant can do rather than can’t do.  Why then do you use negative, imprecise rather than positive phraseology?  For example:

ESA 85	Positive Alternative
“Observed behaviour did not indicate a significant difficult”	Observed behaviour indicates that XXXXX can comfortably cope with . . . . . . .
“Significant disability regarding mental function is unlikely”	XXXXX has no disability regarding mental functions
“He has no upper limb problems which would prevent him propelling a wheelchair.”	XXXXX can comfortably propel a wheelchair

Leaving an element of uncertainty (likely/unlikely) you place a decision maker who is not medically trained in the impossible position of having to make a judgement without any quantification or the benefit of have the claimant in front of them to test the possibilities.

b)      My upper body capability in relation to self-propelling a wheelchair has become particularly significant as it forms the main element in the DWP decision. I had noticed Ms Jones’s comments on the ESA85 and had wondered what prompted them, but did not give it a second thought.

Firstly, in the WCA there was no discussion at all about my upper body strength.  The only “data” Ms Jones therefore had was her observations which were no more extensive that seeing me stand and sit plus a brief conversation about my ability to make a cup of coffee.  If Ms Jones needed information that would have a material bearing on my assessment, she should have asked more questions, but she did not.  How on earth could she accurately assess something she neither discussed nor examined?

Secondly, there was no discussion about my ability to self-propel a wheelchair.  There was no need for there to be (I thought), as none of the medical team associated with my condition over the past 2 years has ever suggested that one would in any way be in my interests – in fact the orthopaedic surgeon has said exactly the opposite.  The fact that I have a long history of arthritis in the hands in my family and might have developed symptoms myself and quite recently have suffered carpal tunnel syndrome in both hands did not of course come up, so Ms Jones’s assertion is hardly based on an intention on her part to ensure she captures all relevant information.

Thirdly as you are well aware, there is a very specific meaning behind “none of the above apply” for Activity 1 –   i.e. that I can self-propel a wheelchair at least 200m.  Where in Ms Jones’s report has she recorded evidence that this could be the case, again in the absence of any discussion?

Fourthly, again as you will be well aware, DWP takes the view that if a HCP summarises Activity 1 as Ms Jones did, my mobility will be judged as if in a wheelchair even though I do not have one and nobody has ever suggested I should have one.  What she has therefore indicated is that she believes my capability to work is enhanced by being in a wheelchair over not being in a wheelchair.  Do you honestly believe that she has the experience and authority to draw such a conclusion without a much more extensive assessment and much broader consultation?   I wonder how many people confined to a wheelchair given the choice to relinquish it would agree?

Please do not try to split hairs over precisely who has responsibility for which parts of this process.  Atos works very closely with DWP and each of you knows exactly what influence you have on the other.  There can therefore be no doubt that Ms Jones knew precisely what the consequences of her recommendation would be.  Consigning someone to a wheelchair for the first time is literally life changing, so do you think that Ms Jones had any duty of care at all to discuss the matter with me in relation to professional best-practice and moral responsibility?

c)       Finally, there is the question of logic and consistency.  Surely if Ms Jones took the view that my mobility would improve in a wheelchair, she would have to accept that my ability to negotiate steps disappears?

As this all stands, she and therefore Atos looks deceitful and dishonest.

There are just a few things finally that I would like to clear up:

a)      Your customer charter promises to treat all claimants fairly and equally.  Why then have you refused to use email?  I am of course assuming that you have not applied this decision across all of the complaints you have.  For the record, I would specifically ask you to reinstate it.

b)      In a WCA, is your overriding priority the physical and mental well-being of the claimant? If not, what is it?

c)       Do you feel that honesty and openness with claimants is vital in establishing the level of trust and confidence in Atos that is a prerequisite to ensuring we do not suffer any undue stress?

If you think that any of these question or for that matter any of my previous questions are unreasonable or irrelevant please do say – I am sure we can work something out.  Likewise, if you feel any of my assumptions (explicit or implicit) are wrong please do tell me. 

Remember what the Government told us over their plan to implement ID cards – if you have nothing to hide; you have nothing to worry about.

Yours sincerely

(another) Complaint to Atos about my latest WCA

Re: Work Capability Assessment - Complaint

Dear Ms Smith,

I have today received a copy of the ESA85 resulting from my WCA on ­­­­­__________.  Although I have not yet been advised of DWP’s decision, it is obvious what it will be given Ms Jones (HCP) concluded that none of the descriptors apply and I that I have no restrictions at all to my capabilities.  There is no point therefore in delaying raising this complaint – disappointing, but entirely predictable.  In part, I asked my wife to accompany me on this occasion because based on past experience I simply could not trust your HCP to accurately record the interview so I felt I needed a witness and it was just as well I had one.

The inaccuracies within the report are deliberate and subtle, but clearly intended to slant the overall picture in one particular direction and generally understate or dilute the consequences of my condition.  For example, the personalised summary uses the word “mostly” which is a complete misrepresentation of what I said.  It also states that I had no observed difficulty which is simply a lie – getting on and off the couch was very painful, despite the help from my wife.  Ms Jones could not possibly have mis-read this.

1.    The Interview

Although Ms Jones was polite, she was somewhat offhand and clearly keen to complete as soon as she could.  I very much felt like I was being “processed”.  Her questions were direct and phrased to prompt a simple yes/no answer, so I continually had to interrupt her to elaborate where necessary.

Although Ms Jones claimed to have seen it, she did not have a copy of my ESA50 with her and could not therefore make any reference to it during the interview.  From the discussion that took place, it was evident that she had not read it thoroughly as she could remember little of its content.

To demonstrate the extent of my treatment in relation to my impairments, I took along a copy of an X-ray showing the metal frame that now supports my lower spine, but she gave it no attention, asked no questions nor made any reference to it in her report. 

She has not therefore fulfilled the requirements described in paragraph 3.1.2 of the WCA Handbook which states:

“Particular attention must be paid to the current claimant questionnaire [ESA50] and all areas where the claimant indicates that there may be a problem must be fully explored. At times the claimant may also bring additional evidence to the assessment. Any evidence bought by the claimant must be read and the report should make reference to the evidence that has been considered and justification provided if there is a conflict between the opinion of the HCP and the other medical evidence.”

From the outset, she gave a clear impression that the outcome was pretty much a foregone conclusion.  I do not believe she had an “open mind”.

2.         The ESA85

For the third time, my date of birth is wrongly shown, despite the fact that this is supposedly checked by the HCP – perhaps representative of the general standards and rigour applied.

I do not believe the timings recorded as I left the interview at 13:45, commenting to my wife that it was the shortest yet.

Paracetamol dosage is wrongly recorded (see ESA50).

There are some clear requirements of the medical report as described in paragraph 3.1.3.6.2. of the WCA Handbook:

·      List all the current diagnoses:  The information recorded is neither accurate nor complete (see below).

·      Ensure that all conditions entered in the ESA50, or other medical reports are included. Not included.

·      The HCP should  . . enquire into any improvement or deterioration in each condition since they completed the ESA50.  Ms Jones did not raise this question at any stage, despite the fact that I had completed the ESA50 five weeks earlier.  I explained that my overall condition had deteriorated over the past month or so, but this does not appear in the report.

It also makes clear the importance of accurate information as follows:

“If you write "Lumbar disc protrusion" rather than "Low back pain" and it transpires at a Tribunal that investigations revealed spondylolisthesis then the whole value of the evidence you have provided for the Decision Maker is undermined.”

It is therefore very surprising (particularly given the relevance of this example) that Ms Jones did not record either the diagnosis or surgical remedy accurately.  She was also not conversant with the range of outcomes that result from such surgery.

The main issue however is that for both Activities 1 & 2 Ms Jones’s conclusions are completely inconsistent with her own observations and my ESA50.  The choice of descriptors must be supported by appropriate medical evidence and detail, but that is not the case here.

For Activity 1, she has no grounds for dismissing Descriptor W(a).  Quoting from the WCA Handbook:

“If they are unable to walk or move on level ground to the degree stated, it would not be considered reasonable to expect the claimant to participate in work related activity, because of their severe mobility restriction.”

The handbook encourages quantification (e.g. paragraph 3.1.3.10), but there is none here, in contrast to my ESA50, which is quite specific.  P65 specifically states, “Include details of distances walked/mobilised”.

There is a reference to me walking 20m to the examination room, but not to the fact that I was the last to arrive by a long way and as Ms Jones walked well ahead of me she was in no position to assess any difficulty I was having.

Similarly, for Activity 2, she has no grounds for dismissing Descriptor S(b).

The WCA Handbook contains many other references for the need to provide conclusive, indisputable supporting evidence for conclusions that differ from the ESA50:

“If your opinion on level of function in any area differs from that of the claimants you must provide full justification for your opinion. You must comprehensively justify and support your choice of descriptor”

“Any conflicting evidence in the report must be fully addressed”

“It is also imperative to address all the information obtained during the assessment and in the ESA50.”

“If the claimant has indicated, variable or inconsistent levels of function in the ESA50, you should consider that this indicates a problem and justify your opinion appropriately.”

As I am sure you are aware, consistency is a vital element of this report and it is essential that the comments really do bear out the choice of descriptor, especially when the opinion differs from the customer's own assessment.  By the same token, a definite distinction has to be made between fact and opinion and while an opinion on its own may have persuasive value it can never take precedence over an opinion which is based on clear and concise evidence.  This report does not fulfil either requirement.

I was very careful to describe to Ms Jones the variability in my condition and the difficulty creates in adhering to any kind of timetable of schedule, the importance of which is recognised in the handbook:

“For conditions which vary through the day the choice of descriptor should reflect that level of activity that can be performed for a reasonable continuous period within the day. Again it should be made clear in the report to the DM how the practitioner arrived at their advice.”

“Taking all of this into account, if a claimant cannot repeat an activity with a reasonable degree of regularity, and certainly if they can perform the activity only once, then they should be considered unable to perform that activity.”

Although there is passing reference in the ESA85, Ms Jones made no real attempt to explore this area thoroughly and understand the consequences.  In doing so she should have complied with the following instruction:

“If you decide not to accept the degree of variability, etc, you should document justification, such as: "In my view, the claimed (variability etc) is unlikely, given the following findings:" and provide one or two specific examples to support your opinion.”

“So that the assessment is not a snapshot on the day”

but has failed to do so.

Over the question of pain, the handbook is quite clear:

“If a person can complete a task but suffers significant pain or distress in doing so, they should be considered incapable of the activity.”

Nowhere in the report has Ms Jones taken this into account.

In view of the overall quality and accuracy of this report, in any comparable situation the repercussions would be that the fee for the service would be withheld and the HCP would not be used ever again, but this decision is of course yours.

The sad reality of this incompetence is that a huge amount of unnecessary work will now be created within DWP and the Tribunals Service, not to mention the stress and upset I will suffer.  For Atos and the HCP by contrast there are no repercussions whatsoever.

Yours sincerely

cc DWP Wellingborough BDC

A note to Jenny Willott MP

Dear Ms Willott,

I am not a constituent of your but have picked up your question to Chris Grayling below.

Given Atos Healthcare’s past performance, no one has faith in the ability of the current work capability assessment or Atos fairly to assess fluctuating conditions in particular. Will the Minister work with Atos to ensure that the new descriptors are implemented as soon as possible and that Atos staff receive additional training to improve their performance and restore the faith of claimants and the general public in the assessment process?

In pressing for the implementation of the new descriptors there are a few things you need to appreciate, as the devil is as usual in the detail.  I can only talk about the physical elements of a WCA as the debacle has not yet substantially affected my mental capabilities.

Significant changes have already been implemented:

1.       Bending and kneeling has evidently been eliminated from the modern workplace so no longer features in an assessment.  Please read more about this at http://tia-junior.blogspot.com/2011/10/wca-descriptors-no-need-to-bend-or.html

2.       Even though one has never been suggested by a medical expert or indeed an Atos HCP, there are certain muscular-skeletal conditions where one’s “mobilisation” improves when in a wheelchair and allows one to work when without the wheelchair work would not be possible.  This is dictated by DWP decision makers – see http://tia-junior.blogspot.com/2011/10/foi-act-request-interpretation-of-new.html

3.       There is a great deal more going on in the background than you could possibly imagine unless you are unfortunate enough to be disabled and have seen it for yourself – a potted summary is at http://tia-junior.blogspot.com/2011/10/wca-mess-view-in-1000-words.html

4.       A whole load of other outrageous stuff I have come across is at http://tia-junior.blogspot.com/ which now seems to be growing daily and http://twitter.com/Tiajunior

The Atos WCA manual is far from perfect but in many ways is not a bad reference document.  Their HCPs drift well away from it, but the worrying thing is that nobody cares – Atos or DWP – as by fair means or foul, it is producing the desired result.  The real evil here is in DWP as they have the power to straighten this out.  Atos will do whatever they are told, so you might like to reset your sights accordingly.

The damage that the Tories are slipping through now will take years to unravel and some will be irreparable, so they have to be stopped now. 

I will happily provide you with whatever I can to help this cause – in fact I would be overjoyed.

Regards

The Government really needs to think about where it is heading

Faced with the prospect of a WCA, just the worry of what might be ahead can have a devastating effect on some disabled people, let alone the experience itself and on top of this there is an increasing amount of pressure being (not too subtly) applied in the background as in the article below from the DT.

It is not in my nature to be dramatic, but it is hard to read the article below without comparing its philosophy with the  expression “Arbeit Macht Frei”, which I’m sure the Tories would not like drawn to their attention and would attempt to dismiss it as insulting and offensive.  The expression is accurate enough, it is just its awful association that resonates.

Indisputably the Government and sections of the media are deliberately or otherwise slowly turning public opinion into wrongly believing that the vast majority of the sick and disabled are perfectly capable of working and are little more than benefit scroungers.  If they successfully create this atmosphere of mistrust, it will slowly permeate through the whole of society and affect day to day attitudes and life.  This will make a difficult situation very much worse for people that are already highly vulnerable and as always there will be sections of society that go too far and we will inevitably see an increase in hate attacks on the disabled as the idiot perpetrators will think they have at least some popular support.

Whether we like it or not, society (at least for the time being) runs on the capitalist principle and work is the means through which value is added to create wealth (admittedly some more than others).  If the balance has shifted such that by the old “rules” it is no longer possible for the numbers able to “input” to support the numbers who can only draw “output”, something obviously has to change and it is the Government’s job to bring this about in the most palatable, sensitive way possible, at times setting an example and taking the moral high ground where we ourselves do not.  If one of the outcomes is that a few lines have to be redrawn, so be it, but the Government has to implement the changes in the right bloody sequence.

If some people on the fringes (and there are always some that are) who in the past have not needed to work now do and can, the first step is to make sure that there is something suitable available for them.   It is stupid to dump people who are already very aware of their limitations from one disadvantaged group to an even worse one – their limitations are no different, but now they have an even lower income and are tainted with being "unemployed", which still carries a stigma at least amongst the employed.  They are of course competing in a job market where they are also disadvantaged and run the risk of eventually loosing financial help altogether. 

The Government will obviously point to the raft of discrimination legislation to show there is no problem, but as always it cannot tell the difference between theory and practice.  To Quote Chris Grayling “For those that need additional help our new Work programme is up and running and will tailor support to people’s needs so that they can overcome whatever barriers they face." apart from the barrier of there being no jobs of any kind let alone those appropriately adapted.  In a job market that is patently and undeniably still rife with the less emotive issue of age discrimination (illegally of course), on what ground does he believe that disability discrimination legislation has been any more effective?

Anyway, this article represents a VERY worrying trend and should prompt a few moments thought about where it could lead..

http://www.telegraph.co.uk/health/healthnews/8861475/GPs-to-tell-long-term-jobless-to-find-work.html

Atos - the LiMA software

See link - An important question from Tom Greatrex and very good to know it is under review!! 

What Grayling says here is true, but he does not explain that the Atos WCA manual actively discourages HCPs from deviating away from the drop down menus and tick boxes.  The reason is that a background algorithm gradually formulates a summary and prognosis that the HCP can then just sign off.  Of course the drop-down lists cannot include every condition which is why they often appear simplified on an ESA85 report.

During a WCA, do make sure you expalin your condition fully and in depth - do not give the Atos HCP any excuse to misrepresent or understate.

http://www.theyworkforyou.com/wrans/?id=2011-10-31a.77570.h&s=speaker%3A10920#g77570.r0

JC Plus Service standards

It may not be worth the paper it is printed on, but can be useful to quote from at times.

http://www.dwp.gov.uk/docs/dwp1018.pdf