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Memorandum submitted by RSI Action (DM 07)
Brief
introduction to RSI Action
RSI
Action was formed in February 2006, and is the only charity focused on RSI
(repetitive strain injury) conditions in the UK.
Repetitive strain injury conditions (also called upper limb disorders)
result in approximately 10% of lost working days in the UK due to ill-health (HSE figures).
In
the experience of RSI Action and local RSI support groups, well over 90% of RSI
conditions are caused by intense computer use at work. The incidence of RSI disability is increasing
with the increased level of computer use both at work and at home, however HSE
figures show that the DSE regulations which came into force in January 1993
have never been used by the HSE to prosecute noncompliant employers. Consequently compliance with these health and
safety regulations is patchy and often inadequate or non-existent. Furthermore the Department of Health and the
NHS provide no effective treatment for these conditions.
RSI
Action is engaging with government, parliament, and with the medical profession
to establish more research on the effective treatment of RSI conditions, and
effective methods of prevention of RSI injuries.
RSI
Action participated in the International Commission Occupational Health PREMUS
2007 Conference (prevention of musculoskeletal disorders) in Boston,
and is planning to contribute to the next PREMUS Conference in France
in August 2010.
RSI
Action has also forged strong links with other RSI charities in Australia, the Netherlands India and the United States. There are also strong links with the two
worldwide centres of excellence on RSI treatment, in Allentown,
USA, and Bangalore, India.
RSI
Action also provides individual help and support to individuals with RSI
throughout the UK.
Stephen
Fisher was a founder trustee of RSI Action, and has been the chairman of
trustees since its formation in 2006.
Stephen was a professional aerospace engineer, and responsible for the
development flight trials of the new generation Meteor air to air missile
system being developed for the Eurofighter, Rafale and Grippen, until his RSI
injury in 2002 resulted in his early retirement. Since that time Stephen has used both his
professional experience and the experience of his RSI injury to help others,
and to campaign for better prevention treatment and support of RSI conditions.
RSI
Action has organised three major RSI Conferences in London, and is planning a fourth conference
in March 2010.
1 Summary
Decision making
The decision-making process has poor compliance with the primary
legislation
The DWP have no model of what work consists of the 21st century
The descriptors do not consider the real working environment
The process takes no account of the impact of work on vulnerable medical
conditions and disabilities
The ESA50 form relates to everyday domestic situations not to work
The ESA50 does not provide guidance on taking account of reliably,
repeatedly and safely.
The ESA50 questions are not directly linked to the WCA descriptors as
published in the Regulations.
The ESA85 medical report form compiled by the HCP is withheld
There is evidence that subcontractors of WFIs harassing vulnerable ESA
claimants
The recent DWP review of WCA descriptors appears to be recommending
descriptors changes to the Secretary of State, to reduce the number of benefit
claimants.
Concern at poor training for decision makers and health care
professionals.
DWP have only provided copies of 42 out of their 252 evidence-based
protocols for the disability analyst
There is no evidence that these DWP protocols have been assessed and
agreed by relevant disability charities and medical experts.
No action on training needs recognized by the Minister in March 2009
There is no evidence that DWP have addressed this significant and increasing
benefit losses (1.5% and doubling year-on-year) due to official error
Small and decreasing benefit fraud (0.63%) attracts significant
ministerial and departmental focus, resulting in victimisation of genuine and
vulnerable claimants.
Appeals
DWP do not appear to have any system to
review the decision making process when there is significant number of appeals
which are upheld.
Recommendations
that RSI Action would like the committee to consider.
· That the WCA should reflect the intent of
the primary legislation, and focus on work-based activities.
· That DWP should seriously consider
developing a model to provide objective links between 21st-century working
activities and the WCA.
· Improved guidance for the claimant should
be developed, identifying the work-based nature of the WCA and the need to
consider reliability repeatability and safety.
· The medical report form (ESA85) should be
provided to the claimant as a matter of course at the assessment, to ensure
that the claimant's information has not been misrepresented.
· Health care professionals and
decision-makers should be trained and provided with suitable information on all
relevant medical conditions. The
training material and information should be publicly available, and DWP should
seek agreement with relevant charities and relevant medical experts.
· Healthcare professionals in decision-makers
should recognize the expertise that disabled claimants have in their own
medical conditions, when considering the impact of the claimants disability.
· The DWP and ministers should focus on
reducing departmental error rather than fraud.
· The intense focus on benefit fraud should
be reduced as it is causing victimisation of the most vulnerable in society.
2 Decision making
2.1 How effective is the decision making process?
Could it be improved, if so how?
2.1.1 Poor compliance of the ESA WCA process with
primary legislation.
2.1.1.1 The basis of ESA decision-making is the
work capability assessment (WCA), which is set out in secondary
regulations. The WCA consists of a
number of activity descriptors which are intended to assess the ability of the
claimant to work. The descriptors are
intended to assess a range of physical and mental functions, and their impact
on the ability to work. RSI Action is
concerned that the WCA descriptors do not adequately relate to work activities
and difficulties that those with medical conditions and disabilities will
encounter if required to undertake "work".
2.1.1.2 The primary legislation is:
Welfare Reform Act 2007
1 Employment and support allowance
(4) For the purposes of this Part, a person
has limited capability for work if-
(a) his capability for work is limited by
his physical or mental condition,
and
(b) the limitation is such that it is not
reasonable to require him to work.
2.1.1.3 The secondary legislation is:
STATUTORY INSTRUMENTS 2008 No. 794
SOCIAL SECURITY
The Employment and Support Allowance
Regulations 2008
PART 5 - LIMITED CAPABILITY FOR WORK
19. Determination of limited capability for
work
1) For the purposes of Part 1 of the Act,
whether a claimant's capability for work
is limited by the claimant's physical or mental condition and, if it is,
whether the limitation is such that it is not reasonable to require the
claimant to work is to be determined on the basis of a limited capability for
work assessment of the claimant in accordance with this Part.
(2) The limited
capability for work assessment is an assessment of the extent to which a claimant
who has some specific disease or bodily or mental disablement is capable of
performing the activities prescribed in Schedule 2 or is incapable by reason of
such disease or bodily or mental disablement of performing those activities.
SCHEDULE 2 Regulation 19(2) and (3)
ASSESSMENT OF WHETHER A
CLAIMANT HAS LIMITED CAPABILITY FOR WORK
(this is the schedule of WCA descriptors)
2.1.1.4 The DWP have no model of what work is in
the 21st century, and what activities workers are expected to carry out, or how
frequently these work activities would be repeated. Consequently there is no traceability between
the WCA descriptors and work in the 21st century.
2.1.1.5 It appears that the WCA descriptors have
been compiled on the basis of assessing physical and mental functional
capability, without any consideration of the relevance to workplace environment
or workplace activity, and without any consideration of the rate at which work
activities are expected to be undertaken and the ability to carry out
activities in a reasonable time scale.
The WCA also does not consider that workers are required to repeat
activities during the working day and working week, in many cases repetition
rates are high. For example most jobs
require significant handwriting and or computer use, or other manual dexterity
operations. However the WCA only
considers a single isolated activities.
2.1.1.6 Sufferers of disabling conditions such as
diffuse Repetitive Strain Injury (RSI) can attempt most activities once,
repeated activities may quickly result in significant pain and increased
disability. Carrying out activities
repeatedly as required in a job could result in increased injury and further
chronic disabilities. The WCA does not
consider the real working environment.
The DWP advice and guidance to the ESA claimant does not consider the real
working environment.
2.1.1.7 Some of the WCA descriptors have no
relevance to the workplace. For example
descriptor 5C (cannot pick up and move light bulky objects such as a cardboard
box, requiring the use of both hands together) is not relevant to the
workplace. During the DWP review of the
WCA in March this year, a medical adviser to the DWP claimed that this
descriptor described the requirements for a shelf stacker in Sainsbury's,
moving goods from a trolley onto the shelf.
However the descriptor is for moving from one side to another a large
but light object, such as an empty cardboard box. Such a claim is unsupportable: supermarkets
do not sell empty cardboard boxes, most goods are of a significant weight
(single jars or cans 400g upwards, bottle of coke 2kg, bottle of wine 1.3kg,
can of beer 475g) with multiple packs of 4x 6x or 24x multiplying the
individual weight of such a retail item to between 4 to 10 kg. Even in an office environment objects have
real weight (the governments Green Paper on Shaping the Future of Care Together
weighs 485g, a ream of office paper weighs 2.3kg), and office workers
(particularly low paid workers) are often expected to move multiple items as
part of their normal work.
2.1.1.8 The WCA descriptors and the process to
evaluate an ESA claim should:
· Be directly linked and
accountable to the components of work in the UK in the 21st century.
· Take account of the
repeated nature of work activities required of workers by employers in
21st-century.
· Take account of the
vulnerable medical conditions and disabilities of claimants, and the risk of
further injury and disability if they are required to engage in the workplace.
2.1.2 ESA50 - Limited capability for work
questionnaire
2.1.2.1 The ESA50 is the DWP application form for
the ESA benefit, and is called "Limited capability for work
questionnaire". The limited guidance on
the form, talks about the day-to-day activities, and does not discuss the
context of work. The first seven pages
are entitled "about you", and ask for information about illness,
disability, care, treatment etc. Part 1
asks questions related to the physical descriptors of the WCA, and part 2 asks
questions related to the mental descriptors of the WCA. Again these sections make no reference to a
working environment, and ask questions relating to every day domestic situations.
2.1.2.2 The ESA50 gives no guidance to the benefit
applicant that the WCA assessment is to consider activities in a work setting,
where activities would be expected to be undertaken reliably, repeatedly and
safely. That is to say to be undertaken
on a bad day as well as a good day, to be repeated a number of times as part of
the working day, and to be undertaken safely without injury, pain or further
injury. For example, the fact that an
applicant can fill in a form over a number of hours or days, does not constitute
an ability to write within working environment.
2.1.2.3 Furthermore, the ESA50 in parts 1 and 2 are
not directly related to the WCA descriptors as set out in regulations. This is particularly the case in section 6
(manual dexterity). In this section the
WCA has 9 descriptors with points ranging from 6 to 15, however section 6 of
ESA50 Part 1 condenses these descriptors into a choice of one of three tick
boxes against a single statement referring to seven activities, with the
question "Can you use your hands to do things like?". This form of questioning
is very unhelpful to the claimant, and it is likely that he will not properly
consider each descriptors, and increases the likelihood of the claimant and his
disability being misunderstood. It
increases the reliance on the claimant to enter text on the form, and the
reliance of the medical adviser and decision-making to understand and take
account of the text. In our experience
of Incapacity Benefit decision-making, the decision maker and the medical adviser
do not appear to take any notice of text on the IB50 (further details provided
in section 2.2.3).
2.1.2.4 The ESA50 should be redrafted, it should
include guidance to the claimant that the physical and mental assessment is
based on a work setting and not a domestic setting, and that the ability to
undertake the descriptors should take into account reliability repeatability
and safety, and are not intended to be simply a measure of being able to
undertake the activity once in isolation.
2.1.2.5 The ESA50 should also be redrafted to
ensure that its questions are compliant with the descriptors set out in the
relevant regulations.
2.1.3 ESA85 Medical Report Form
2.1.3.1 The ESA85 is the form used by ATOS Medical
Services to report to the decision maker his assessment of the claimants
suitability for work. It has sections
addressing the history of the case and background, medication, and also
assesses the WCA physical and mental descriptors (as set out in regulations,
rather than as set out in the ESA50).
2.1.3.2 In most cases was the ATOS Health Care Professional
(HCP) will use the ATOS LIMA software application to generate the ESA85, there
is also provision for a paper-based ESA85.
In both cases the report is compiled by the HCP during the assessment,
the claimant is not provided with sight of the content of the report, and any
requests by the applicant for a copy of the report at the assessment are
refused.
2.1.3.3 We have requested further information from
DWP on LIMA,
but these requests have been refused.
From the Training and Development ESA Handbook (MED-ESAHB-001) we
understand that the LIMA
application includes preset text that the HCP can select and drop in to the
ESA85 report at the click of a button, rather than specifically compile an
appropriate set of comments for each claimant.
2.1.3.4 From our experience of the IB85 (for
incapacity benefit) which also used LIMA,
claimants have found that the IB85 has often misrepresented what they have told
the HCP.
2.1.3.5 The claimant is refused requests for sight
of, or a copy of the ESA85 (or IB85) at the assessment. A copy is only provided after several weeks
or months if it is requested. In the
case of an ESA claimant I accompanied to the Ealing Broadway JCP Medical Centre
in mid July for ESA assessment, the HCP refused to provide a copy of the ESA85
at the time. The claimant subsequently
made multiple telephone and written requests to the JCP for a copy of the
report, and had not been provided with a copy by the WFHRA in mid August, which
I again attended. In fact the JCP had
advised the claimant that JCP had not received the report from ATOS. This was clearly not the case since the
Decision Maker had provided the claimant with his decision.
2.1.3.6 This lack of transparency and
accountability is not helpful, and is not acceptable. It adds significantly to the frustration and
lack of confidence in the benefit claiming system for a vulnerable claimant.
The ESA85 should always be provided to the claimant at the assessment, and an
opportunity should be provided for the claimant to raise concerns over the
accuracy of the information that the HCP has reported that the claimant has
provided.
2.1.4 Work Focused Interviews (WFI)
2.1.4.1 We understand that the JCP subcontract to
suppliers of work focused interviews services who are paid by results,
dependant on the number of claimants they place into work.
2.1.4.2 In the case of an ESA claimant that I have
recently helped, the JCP advisers have agreed that she is in no condition to
consider going back into the working environment at the moment due to her
multiple medical conditions. In fact she
was asked to take early retirement by the government department that she worked
for earlier this year due to her incapacity caused by her medical
conditions.
2.1.4.3 However the private provider has been
"chasing" this vulnerable claimant, and telling her that she must attend
the interviews. This is causing
significant distress to the claimant.
2.1.4.4 We understand that the incentive for the
private providers is approximately £4000 per claimant that they place into
work.
2.1.4.5 Surely parliament did not intend private
providers to make profit out of harassing vulnerable and disabled citizens?
2.1.5 DWP review of WCA descriptors.
2.1.5.1 Earlier this year and RSI Action and other
charities were invited to attend internal DWP review meetings to consider the
newly implemented WCA descriptors. The
charities were concerned at the limited time over which the WCA had been
operating, and the limited opportunity to see how the new system affected
claimants. However several charities
including ourselves agreed to take part.
2.1.5.2 The DWP invited a small panel of their
expert advisers. DWP members and their
advisers were provided with a number of specific cases to be considered,
whereas charity representatives were denied access to such information. RSI Action and other charities have been
concerned at the limited experience within the DWP representatives and experts
on the workplace and social impact of disabilities, that should be taken into
account in assessing the ability of a disabled person to work. RSI Action has written two letters to DWP
raising its concerns on this process, and is concerned that the issues raised
have not been adequately considered by DWP.
Having seen the DWP proposed changes to the WCA that we understand will
be presented to the Secretary of State for approval, we are very concerned that
the WCA will migrate even further from the intent of primary legislation, to
provide benefit for those who have limited capability for work.
2.1.5.3 A particularly alarming change that we
understand will be proposed to the Secretary of State, is to replace using a
pen or pencil, with "making a purposeful mark"! Such a descriptor takes no account of the
ability of the claimant to use a pen or pencil for the purpose for which it was
designed, to write legible text in a reasonable time so that others can understand
what has been written. This is just one
example of where the DWP appear to be changing the WCA to reduce the number of
ESA claimants, rather than to ensure that the vulnerable in society who
parliament intended to provide benefit for, receive that benefit.
2.1.5.4 In the case of RSI sufferers, the
Department of Health and DWP appear to be doing very little to prevent healthy
workers getting RSI conditions, they are not providing the necessary treatment
to enable recovery from RSI conditions, and are not providing any effective
assistance to find work which will does not cause further deterioration of
their conditions.
2.2 Are there sufficient numbers of decision
makers and is the training they receive adequate?
2.2.1 Concern at poor training for DMs and HCPs.
2.2.1.1 RSI Action is very concerned at the
inadequate training of medical advisers to the decision-makers and
decision-makers. RSI Action is not alone
in this concern, discussions with other disability charities, and the delegates
of workshop 8 at the DWP Welfare Reform Bill Consultation in London on 15 September 2008, show that many
charities share our concern.
2.2.2 Absence of formal training for HCPs on
disability conditions.
2.2.2.1 The Training and Development ESA Handbook
(MED-ESAHB-001) has been published to provide HCPs (health care professionals)
who undertake the ESA medical assessments with information on how the
assessments should be undertaken. In
section 3.5 the manual provide guidance on specific physical conditions, and
refers to a CD-ROM (evidence-based protocols for the disability analyst) which
the HCP is advised to obtain from their local unit. RSI Action requested a copy of the CD from
the DWP Deputy Chief Medical Adviser.
DWP provided us with the CD entitled "252 Evidence Based Protocols for
the Disability Analyst V1". The CD
included four sections each containing a number of protocols (Cardiorespiratory
- 14 protocols; Mental Health - 12 protocols; Musculoskeletal - 10 protocols,
and; Neurological & Infections - 6 protocols). In total there were 42 protocols rather than
the 252 in the title of the CD. Requests
for clarity from DWP and ATOS on this issue have failed to identify how many
protocols they should be, and whether we have been provided with all of them. However what is very clear is that we have
not been provided with any protocol relating to RSI conditions.
2.2.2.2 This underlines and supports the concern of
RSI Action that HCPs and DMs are not adequately trained in RSI conditions to
undertake assessments as to whether individual RSI sufferers have limited capability
for work due to their physical condition.
2.2.2.3 Similarly there may be other disability
conditions for which decision-makers and their advisers are not adequately
trained.
2.2.2.4 DWP have advised that HCPs do not need to
be trained in specific disability conditions, however this is not substantiated
by the frequent references to specific conditions in the ESA Handbook,
including detailed information on Tinnitus and Meniere's disease on page 76 of
the Handbook. Without specific
information on different disability conditions, it is very likely that HCPs and
DMs will be unable to make the right decision for vulnerable disabled
claimants, resulting in refusal of benefit, and risking further injury and
disability.
2.2.2.5 Information and training on disability
conditions for decision makers and their advisers should be placed in the
public domain, to ensure that charities and other experts on these conditions
have an opportunity to review such information and training, and ensure that
DWP staff, their advisers and subcontractors are adequately trained to meet the
requirements of primary legislation.
2.2.3.1 On 9 March 2009, RSI Action had a meeting
with the Minister for Welfare Reform (Tony McNulty) at Caxton House. One of the concerns that we raised with the
Minister was the failure of the ATOS Health Care Professional (HCP) and the JCP
Decision Maker (DM) to recognize the limited capacity for work due to RSI
conditions. We provided four cases in
which RSI sufferers had claimed incapacity benefit (IB), and in all cases the
claimant scores on the IB50 were in region of 60 to 90 points, whereas the HCP
scored only 0 or 1 point on the medical report (IB85), which was apparently
rubberstamped by the DM. In each case the
claimant appealed and went to tribunal, which RSI Action attended. In each case the tribunal quickly came to the
view that at least 15 points should be awarded, and in each case the appeal was
allowed. In two cases there were medical
reports from the previous employer or the insurance company that clearly stated
that the claimant was unfit for work which involves repetitive use of the upper
limbs to any extent.
2.2.3.2 RSI Action provided written details on
these cases to the Minister, details have also been provided to the DWP Deputy
Chief Medical Adviser. RSI Action is not
aware of any action taken by DWP following provision of this data.
2.2.3.3 The minister agreed that it was clear that
there was a significant training problem that should be addressed.
2.2.3.4 Copies of the information provided to DWP
on these cases is attached to this submission (see annex).
2.3 Is the decision making process clear to
claimants?
2.3.1.1 No comment.
2.4 How effective is the review stage of the
decision making process?
2.4.1.1 No comment.
2.5 Is DWP effectively addressing official
error?
2.5.1 Benefit fraud and official error.
2.5.1.1 The Guardian reported on 8 July 2008, that
the DWP Permanent Secretary (Sir Leigh Lewis) reported to the Commons public
accounts committee a loss of £1.9 billion (1.51%) from errors and £800 million (0.63%)
loss due to fraud in the previous year.
The report further identified that whilst the amount of benefit fraud
was falling, the loss due to error had almost doubled year on year.
2.5.1.2 Despite the official recognition by DWP and
the public accounts committee, of the low and falling level of benefit fraud,
and the ever increasing level of official error, government ministers, DWP
information and press reports continue to focus on benefit fraud, to the extent
that bone fide and vulnerable benefit claimants are being persecuted and are
living in fear of being branded a benefit fraud. Whilst RSI Action certainly does not condone
any form of benefit fraud, it is very concerned that the constant focus on
benefit fraud is disproportionate to the very small levels of actual fraud, and
is resulting in victimisation of the most vulnerable in society.
2.5.1.3 Over the last year or so there have been a
number of high-profile green papers and White papers and other DWP
publications, that make frequent reference to benefit fraud, and no mention of
any provisions to address official error.
As the evidence shows above, the losses due to internal errors are
increasing significantly year on year, and in 2008 were two and half times
losses due to benefit fraud. If the
trends identified in July 2008 continued, benefit lost due to error will now be
over five times that due to benefit fraud.
2.5.1.4 DWP should be more concerned about giving
the right to benefits to vulnerable claimants, rather than focusing so intently
on benefit fraud, and in the process denying genuine vulnerable claimants from
the benefit intended by Parliament.
2.6 How well does the decision making process
operate for different benefits (e.g. ESA, DLA and Housing Benefit)?
2.6.1.1 No comment.
2.7 How effective has DWP's Decision Making Standards
Committee been in monitoring front-line decision making?
2.7.1.1 No comment.
2.8 Is decision making taking account of the
October 2007 European Court of Justice ruling on exporting DLA, AA and carer's
allowance?
2.8.1.1 No comment.
3 Appeals
3.1 How does the appeals system work from the
claimant's perspective?
3.1.1 Appeal process from the claimant's perspective.
3.1.1.1 The appeal process is very important, as it
does provide an independent to challenge a DWP decision. However the appeal process is very daunting,
challenging and stressful for a genuine claimant.
3.1.1.2 The latest report (2007-08) by the
President of Appeal Tribunal's, states that 54% of incapacity benefit claims
that had been turned down by DWP have gone to appeal, and have been overturned by
tribunal's. Rather than DWP reviewing
its decision-making process, DWP has advised that it would make the new ESA
process more robust. Does this mean that
the ESA process is designed to remove any potential basis for legitimate
benefit claims to be successful at tribunal?
3.1.1.3 The
conclusions of the above report, highlight the same problems with the DWP
decision making process that have been experienced by RSI Action and those
disabled with RSI conditions, i.e.
· Underestimating
the severity of appellant's disability reliant on the ATOS healthcare reports
to the exclusion of other evidence.
· Quality and use of
medical evidence.
· Absence of contact by
the decision maker with the appellant to seek additional evidence, to discuss the grounds of appeal, or to seek
resolution prior to a tribunal hearing.
· Decision maker
"trumping" the appellant's account by a medical report, without any
reasoned attempt to weigh or reconcile what is variously said.
3.1.1.4 The reports later shows that incapacity
benefit tribunal's concluded that in 30% of cases the medical report
underestimated the severity of disability, and in 44% of cases the tribunal
formed a different view of the same evidence.
3.1.1.5 From the claimant's perspective much more
should be done to provide the right decision in the first place without the
need to go to appeal. As tribunals are overturning
a significant number of DWP decisions, DWP should review their decision making
process to identify why the decision-makers have failed to identify genuine
claims.
3.2 How has the
introduction of the Administrative Justice and Tribunals Council (AJTC)
impacted upon claimants' experience of the appeals process?
3.2.1.1 No
comment.
3.3 Is the
timeframe of appeals reasonable?
3.3.1.1 No
comment.
3.4 Is
sufficient support available to appellants during the appeals process?
3.4.1.1 No
comment.
September
2009
Annex
Attachment 1 to RSI Action submission (dated 7-9-09)
to the Select Committee inquiry into "Decision making
and appeals in the benefits system"
This
information is referred to in Section 2.2.3 of the above submission.
Case 1 - Ms B. DWP/ATOS failed to recognize limited capacity
for work due to RSI condition.
Ms B was a computer user for a US computer company until
2003. She was a hard worker, worked long
hours as required by the company, but the company was not compliant with DSE
regulations.
In 2003 she had an RSI injury, saw a rheumatologist. She had to leave her job because of her
disability.
Ms B applied for IB in May 2005, which resulted in a PCA score of
90. Medical services assessed her in
August 2005, with a PCA score of 0. The
decision maker followed the advice from medical services and refused IB.
An appeal in September 2005 upheld the decision maker.
Despite the appeal decision maker stating that ...
"I have reconsidered the decision, taking account of all the
evidence and information available",
... it is clear that the decision-makers did not taken into account
the GP and consultant medical information, and decided to completely disregard
evidence from the claimant.
Following the appeal decision to refuse IB, Ms B had no alternative
than to seek work. She took a job, and
after less than 3 days, found that RSI condition was worse than it had ever
been. She could not complete the first
weeks work, and her job was lost. She
took the case to a tribunal in February 2006.
Stephen Fisher (RSI Action chairman) accompanied her to the tribunal,
and also took advice from Dr Moira Henderson (who was responsible for the PCA
within DWP's Corporate Medical Group).
Moira had explained that examining doctors should take into account
repeatability, reliability and safety in making assessments.
The tribunal very quickly came to a conclusion that Ms B could not
use a pen or pencil, and therefore qualified for at least 15 points, and was
granted IB.
I have been in contact with Ms B since February 2006, and have also
accompanied her to see specialists at University
College Hospital,
London. Her condition is still extremely vulnerable,
she is unable to use public transport, and reliant upon others for basic
support of living. She is undoubtedly
suffered further injury and disability following the incorrect decisions of DWP
in 2005.
physical
descriptors mental descriptors total
IB50 (claimant) 90 points 0 points 90
IB85 (ATOS) 0 points 0 point 0
decision maker 0 points 0 point 0
tribunal (Feb 06) > 15 points not considered > 15 points
Case 2 - Mr P. DWP/ATOS failed to recognize limited capacity
for work due to RSI condition.
Mr P was employed as a
billing officer for his local council from 1988 to 2006 when he was dismissed
on the grounds of incapacity due to his work-related upper limb disorder.
As his computer work
became more intense and involved more mouse work, Mr P's condition developed to
the extent that he had a shoulder operation and a carpal tunnel release
operation. However the operations were
not successful and his condition became more disabling.
In April 2006, a
specialist registrar in occupational medicine was asked by his employer to
report on Mr P's condition, his capability and future employment
prospects.
The employers
consultant stated:
"In the
circumstances it seems clear that Mr P is currently unfit for work which
involves repetitive use of his upper limbs to any extent."
There was a
significant amount of medical evidence from Mr P's GP, consultants, his
employers occupational health advisers, and their specialists. It was clear that Mr P was no longer able to
undertake his work (which was computer-based), and his condition was unlikely
improve in the foreseeable future.
Mr P's application for
incapacity benefit in August 2006 was refused, in November 2006, giving a PCA
score of 0. He appealed and attended a
tribunal in April 2007. Stephen Fisher
(chairman of RSI Action) accompanied Mr P.
The tribunal upheld
the appeal, and found that the appellant satisfied the personal capability test
in that he cannot reliably and repeatedly undertake a range of tasks involving
use of his hands and forearms.
physical
descriptors mental descriptors total
IB50 (claimant) TBA points 0 points TBA
IB85 (ATOS) 0 points 0 point 0
decision maker 0 points 0 point 0
tribunal (April 07) > 15 points not considered > 15 points
Case 3 - Mr N. DWP/ATOS failed to recognize limited capacity
for work due to RSI condition.
Mr N suffered
significant RSI disabilities, resulting in being unable to use a computer or
write, and resulted in him losing his job.
He also had complications with stomach pains, and the loss of 10 kg in
weight. He was undergoing investigations
at leading London
hospitals for nerve injuries.
Mr N applied for
incapacity benefit, his IB50 form PCA points were 59. He was assessed by medical services in July
2007 and was awarded zero points. The
decision maker followed the advice of medical services, awarded zero points and
refused incapacity benefit. Mr N
appealed and in August 2007 the appeal upheld the decision-makers decision.
Mr N appealed for a
tribunal which were as heard in November 2007.
The DWP decision
maker submitted an 8 page submission to the tribunal, with 19 references to
commissioner decisions, and 26 references to Acts and Statutory
Regulations. The submission appears to
have lost any rational consideration of the facts that would be expected of a
government department. The submission
was wholly inappropriate, and clearly intended to intimidate a vulnerable and
disabled claimant.
This commitment and
blind faith in ATOS medical advisers is astonishing. How can the opinion of a doctor who has never
seen before, and has no specialism or understanding of the medical condition of
the claimant, be considered over and above medical opinion of the claimant's GP
and specialists?
The tribunal decision
considered two of the prescriptions within the PCA could not be undertaken by
Mr N, and consequently awarded 16 points, and overturned the decision-makers
decision. Stephen Fisher (chairman of
RSI Action) accompanied Mr N to this tribunal.
physical
descriptors mental descriptors total
IB50 (claimant) 59 points 0 points 59
IB85 (ATOS) 0 points 0 point 0
decision maker 0 points 0 point 0
tribunal (Nov 07) > 16 points not considered > 16 points
Case 4 - Ms
M. DWP/ATOS failed to recognize limited
capacity for work due to RSI condition.
Ms M had worked for
12 years as a tax manager in her last employment, which involved significant
computer work.
The financial systems
in the office were changed to a paperless system resulting in a higher
intensity of computer work. Shortly
after this change in the summer of 2003 Ms M encountered pain and discomfort in
her hand and arms which were then diagnosed as diffuse RSI. This resulted in increasing disability, and
loss of her job on 31 March
2006.
Ms M had an
employment insurance policy that would make a payment to her in the event of a
health problem preventing her from working.
Her insurers arranged an independent medical examination to establish
her eligibility for payment under the policy.
Ms M was examined for
11/2 hours in August 2007, and the consultant occupational physician wrote his
report. He stated in his opinion Ms M
had seen the right kind of specialists and received very good advice. He could not suggest any further effective
treatment. He stated it was his opinion
that "Ms M is totally and permanently
disabled from following any occupation.
He stated "The reason for this is that she has been
suffering from these complaints since 2003 and treatment has not really make
any difference. Only refraining from
activity has made a difference. Whilst
some people might argue that the recovery is not impossible, I would say that,
four years after the initial and onset of the problems in her hands, and after
extensive treatments including refraining from work, little progress has been
made. It therefore appears unlikely that
a significant recovery can be achieved so that Ms M could return to work on a
regular and effective manner, as virtually any form of work needs the use of
hands, even with significant adjustments to the job."
Ms M completed the
IB50 on 17 January 2008. The IB50 response resulted in a PCA score of
66 points. On 21 April 2008 medical services
undertook a medical examination and awarded one single point. Despite medical evidence provided by the
claimant, in particular the letter from the independent consultant occupational
physician, the examining doctor considered that the claimant had no physical
limitations that would prevent any of the PCA activities being carried out
reliably, repeatedly and safely. In June
2008 the decision maker accepted all recommendations from medical services and
consequently decided not to provide IB.
The decision was appealed, still resulting in no IB.
The decision was
taken to a tribunal in February 2009, and the tribunal fully accepted the
genuine nature of the claimants disabilities, and the independent nature of the
medical report provided to the insurance company. The tribunal upheld the appeal, and awarded
15 points for being unable to write.
(The tribunal do not judge all of the descriptors, they only judge
sufficient descriptors to decide if incapacity benefit should be awarded). Stephen Fisher (RSI Action chairman)
accompanied Ms M to the tribunal.
Scrutiny of the IB85
shows that the medical assessor had failed to understand the disabilities
associated with RSI, had made many unfounded statements, and had not taken
reliability, repeatability and safety to consideration. It appears to be a matter of policy within
DWP and ATOS not to show the claimant AB85 form at the time of the
assessment. This is only made available
some months later if specifically requested by the claimant. The claimant has no opportunity to question
or challenge any statement made by the medical examiner, or any option selected
by the medical examiner.
physical
descriptors mental descriptors total
IB50 (claimant) 66 points 0 points 66
IB85 (ATOS) 0 points 1 point 1
decision maker 0 points 1 point 1
tribunal (Feb 06) > 15 points not considered > 15 points
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