Written evidence submitted by David Gillon
SUMMARY
1. This submission to the inquiry into the migration
from Incapacity Benefit to ESA is based on my personal experience
of the ESA and WCA processes having been asked by Jobcentre Plus
to migrate my claim from JSA. The submission takes the form of
a narrative account of my direct experiences, an analysis of failures
within the system and a brief conclusion.
NARRATIVE ACCOUNT
2. As an ESA claimant I "passed" the
Work Capability Assessment and was placed into the Work Related
Activity Group, which I believe to be completely appropriate.
However the process I experienced fell so far short of an acceptable
level of competence that I think it is essential I pass on my
experience of the system and how it is failing those who are exposed
to it.
3. After 22 years working as a software engineer
on prominent projects in the aerospace industry, the last four
fighting to preserve my career against my employer's attempts
to force me out, I was made redundant at the end of 2008. With
an Employment Tribunal claim against a multinational to manage
I did not have the energy available to fight for ESA, JSA was
simpler to claim. However Jobcentre Plus proved to be utterly
incapable of working with someone who was not only disabled, but
highly qualified, and tried to deal with me by ignoring both.
That ultimately escalated into a complaint to ministerial level,
a written apology from JCP, and a request from them, in early
2010, that I transfer onto ESA.
4. As an ESA claimant I was first expected to
fill in the 28 page ESA50 form. The unavailability of an electronic
version of this form over a period of years speaks to an utter
institutional contempt for disabled people and their needs, similarly
so for the requirements of the DDA and now the Equality Act. The
paper form is not simply inaccessible to people with visual impairments,
but also to anyone, like me, who is unable to write comfortably
or legibly as a result of their disability. Equally the space
provided in the form is utterly inadequate for anyone, again like
me, who needs to discuss several decades of experience of a complex
disability. The sheer size and nature of the form render it inaccessible
across a wide range of disabilities.
5. My first WCA assessment was scheduled for
early May, 2010 at the Chatham Assessment Centre of Atos. The
building is located in the centre of Chatham and has no on-site
disabled parking, so is utterly unfit for purpose before you even
get to the door. There is a public disabled car park some 150
meters away, but it regularly requires a wait of over 30 minutes
to find a space and like many disabled people I cannot walk even
50 meters without experiencing significant pain. The next nearest
disabled parking is 350 meters away. Access at the door is via
intercom, so how someone deaf and/or without speech is supposed
to manage is a mystery. The DDA and the Equality Act both require
service providers to make provisions based on the likely needs
of their clientele, so a building whose entire clientele is disabled
should make a significantly greater degree of access provision
than most, yet Atos continue to operate centres, and even open
new ones, that fail to meet even the most basic standards of accessibility.
6. I had informed Atos in advance via the ESA50
form that I would require adjustable seating because of the difficulty
in sitting which results from my disability, which is in fact
the core of my problems regarding working and therefore fundamental
to the whole assessment process. None had been provided. The tattily-dressed
individual who checked my ID led me into a waiting room filled
with cheap, non-adjustable seating completely inappropriate to
the needs of a client population containing a high proportion
of people with musculo-skeletal and pain and fatigue based disorders.
Within seconds of trying the seating I had realised that I was
completely unable to sit on it in any comfort, only by rolling
sideways onto my hip was I able to tolerate it at all. When I
was called through, something over 10 minutes later (despite apparently
being the only client in the building), I was in considerable
distress, which only deepened when I reached the examination room
and found that the seating there was actually worse. It was at
this point that I discovered the tattily-dressed individual was
actually the doctor who was supposed to assess me, not the caretaker
as I had assumed. I pointed out that I had told Atos I needed
an adjustable seat and his reaction was "Oh, you'll just
have to book another appointment". He then admitted that
this was not the first time this problem had occurred, that they
had asked for adjustable seating to be supplied and that they
had been told by their regional management to "make do with
what you have". In my opinion this is a clear indication
of an active contempt by Atos management for both their client
population and for the reasonable adjustment provisions of the
DDA and now the Equality Act.
7. I returned home having wasted my time and
experienced major amounts of pain as a direct result. This pain
then served to trigger a massive flare-up in my condition and
I spent the following week on the floor of my bathroom as I was
wracked by one muscle-spasm after another, not knowing even what
day it was. I eventually managed to get to my GP, who doubled
the strength of my opiate painkillers, which brought the flare-up
under control, but at the cost of my wandering around in a daze
for several months with no energy or volition. The loss of control
in this kind of flare-up is extremely distressing both physically
and mentally and I was completely unable to deal with mail during
this period, simply the thought of a letter from Atos or DWP being
sufficient to send my pain levels sky-rocketing. Ultimately it
took me six months to completely catch up with my mail, at which
point I discovered a letter from Atos dated a week after my initial
WCA date and calling me for another WCA a few days later, which
needless to say I had not attended, being barely functional at
the time.
8. So, knowing that I had a major problem with
their centre environment, having failed to provide a requested
reasonable adjustment, and having visibly caused me considerable
distress, Atos did not even think it was worth ringing me to ensure
that my appointment was rearranged for a convenient time and to
assure me that the needed reasonable adjustment would be there
this time. Their response was actually worse than this, but it
would be several months before I realised how bad.
9. In late-August I received a letter from DWP
stating that my ESA payments had been stopped, from the week before
my initial appointment, owing to my failure to attend the WCA.
I called the office the letter had originated with and the person
I spoke to immediately accepted my inability to attend a WCA I
was not aware of and noted that Atos had made no mention of their
failure to provide a required reasonable adjustment, but had simply
stated that I had not completed the initial WCA. When Atos set
out to deliberately portray their own error as a failing by the
victim of that error, and a failing with fiscal consequences,
then there is no way to interpret their actions as anything less
than actively and deliberately dishonest.
10. My claim was eventually reinstated in late-September
and a further WCA was arranged for mid-October, again at Chatham.
This time I was met at the door with an adjustable chair. Unfortunately
I could not raise the seat of the chair to an appropriate height
and at five feet eight I am not exactly tall. Again I was reduced
to rolling sideways onto my hip. This time the delay was not 10
minutes, it was something over 45 minutes. By the time I was called
into the assessment room (with the receptionist bringing the useless
seat through after me) I was physically shaking. It was a different
doctor to my first appointment, but again he was scruffily dressed
in a tatty anorak. It is impossible to conclude that this attitude
towards dress reflects anything other than a profound lack of
respect for their clientele on the part of Atos medical staff.
11. My pain management consultant has told me
that is almost impossible to get doctors who are not specialists
in pain management to comprehend just how disabling pain is, and
I was therefore extremely concerned about how much of a background
the assessor had in chronic-pain based disabilities, unfortunately
his manner instantly convinced me that any such question would
be interpreted negatively. As the session started I rapidly became
aware that I was in so much pain that I was not answering effectively
and was making a case for myself that was significantly weaker
than it should have been. It also became rapidly apparent that
the doctor was profoundly irritated by my refusal to give yes
or no answers. He may have found it irritating, but the questions
were not ones that could be adequately answered with yes or no
and, for him to gain any meaningful understanding of my disability,
required that he listen to the details. Despite his disapproval
I would not be swayed on the need to answer the questions fully,
though undoubtedly many people who are less able to express themselves
will have been browbeaten into less than complete answers by his
manner. It was also extremely apparent that he was reading from
a computer-based script, his eyes fixed on the screen, and that
his annoyance correlated with answers that did not fit the format
his script mandated. As a result of this there was an almost complete
refusal to make eye contact, destroying any sense that he was
truly listening to me.
12. More disturbingly, he chose to take umbrage
at certain of my points. I do not expect automatic complete agreement,
but I do not expect to be told that I am wrong to have tried to
search out information on the assessment process, particularly
when his subsequent conduct proved the correctness of that information,
nor do I expect to be criticised for the way I have described
the effects of my disability on my walking, particularly when
later events demonstrated that I was being absolutely accurate.
13. Some 20-odd minutes into the assessment I
reached my limits on my pain tolerance, either I had to stand,
or vomit. I spent the rest of the assessment balanced on one leg
and crutches and it was only at this point, a cynic would say
at the point he started to fear being found negligent in my treatment,
that the doctor finally broke script and started to interact with
me. He asked whether I was able to continue, but by that point
I just wanted the WCA over with, I certainly wasn't about to put
myself through the process for a third time. We proceeded into
the physical part of the assessment, but even then he criticised
me for being unable to bend my leg so he could tap my knee with
his hammer. My leg locks when my pain levels are high, it is a
feature of my disability I have no conscious control of, and I
do not expect anyone, certainly not a doctor acting in a medical
capacity, to criticise me for it.
14. WCA thankfully over, I barely managed to
drive myself home, pain levels so high that I spent the rest of
the day in bed, the first hour physically shaking.
15. In late-November I finally received the notification
that I had been placed into the WRAG, together with back-payment
of all the ESA payments I had been due since May, but the process
had taken 10 months and caused me a considerable amount of pain
and physical distress, actually significantly worsening my situation.
The treatment I received has convinced me that Atos have a complete
and utter contempt for the needs of their clients that amounts
to institutional disability discrimination and that their medical
assessors are happily compliant in this. Sadly DWP is little better,
my experience has been that the system only works when you complain.
16. So my experience of WCA and Atos is one of
contempt for disabled people that amounts to deliberate abuse.
Despite the fact that I have been assessed as belonging in the
WRAG, the system nearly managed to turned me into one of those
statistics for withdrawn or failed claims that the tabloids love
to claim are evidence of fraudulent intent, rather than what they
really are, evidence of a system that is failing those who need
it most. I got through the system because I am too bloody-minded
to give in when people erect barriers in front of me and because
I am too articulate and persistent to easily dismiss; but many
people are not as bloody-minded, are not as articulate, are not
as persistent and the system will be far more of a nightmare for
them than it was for me. The system should assess everyone fairly,
whoever they are, whatever their disability, at the moment it
isn't even doing that for the people it passes and I believe that
those who are less articulate, or whose disability renders them
less able to challenge authority figures, will be significantly
disadvantaged.
ANALYSIS
17. My own experiences, and those of other disabled
people discussed within the disability community, point to the
following failings in the ESA WCA system:
18. A complete breakdown in trust between the
client population and DWP. Even the most articulate disabled people
live in fear of be summoned for WCA, not because of any weakness
in their case, but because they do not believe the system is capable
of assessing them fairly.
19. The conspicuous failure of the DWP to take
the lead in dispelling the campaign of demonization of disabled
benefit claimants being conducted in the tabloid press, as is
mandated by their Public Sector Equality Duty, leading to the
widespread perception that DWP are actually orchestrating the
campaign and worsening the breakdown in trust.
20. Dreadful communications practices within
DWP, with letters to clients almost universally opening with a
threat, further alienating the client population.
21. The ESA50 form is over-long, over-complex,
and physically too constrained to allow the questions to be easily
answered for any but the most straightforward of disabilities.
No consideration has been given to the physical and mental costs
to filling out a form of this size and nature. Disabled claimants
regularly report taking anything up to a month to complete the
form, and that is assuming they do not have a disability that
renders it impossible. The documentation accompanying the form
signally fails to mention that supporting medical reports may
be attached.
22. The failure to meet basic standards of access
at Assessment Centres in the form of on-site disabled parking,
acceptable seating, in some cases even to have a wheelchair accessible
building, tells disabled clients that their access needs are being
treated with contempt. If access is treated with contempt, then
the presumption must be that their disabilities, and ultimately
they themselves, are viewed with the same contempt.
23. The 40-odd minutes allowed per assessment
is clearly inadequate to conduct an assessment on a patient the
assessor has never met, potentially with a disability they have
never encountered before, and to then write a considered report
for the DWP decision maker. This is particularly so where the
disability is complex, or where supporting medical evidence has
been provided.
24. A client with complex mental health issues
faced with being assessed by a physiotherapist with less than
two weeks of training in assessing all areas of disability has
every right to be concerned as to whether they will be assessed
competently. Similar concerns exist for every client with a less
well known, or widely misunderstood, disability.
25. Clients are entitled to be treated with due
respect by Atos assessors, reports suggest that utter contempt
is rather more likely. No assessment should be conducted with
the assessor staring at a computer screen, no client should be
criticised for their choice of words, certainly no client should
find themselves being criticised for the reality of their disability.
26. The 12% error rate represented by the rate
of successful appeals of WCA decisions at tribunal would be considered
disastrous in any other industry. The question arises as to whether
the WCA contract contains required levels of performance and penalty
clauses to enforce them. And if not, why not?
CONCLUSION
27. The idea of a Work-Related Activity Group
and a Support Group is a reasonably sound one, but the WCA system
as currently implemented fails to meet any reasonable standard
of performance. Even if WCA can be fixed, my personal experience
of being a disabled employee leads me to believe that the hopes
of massively reducing unemployment amongst disabled people will
only be met when the Government turns its attention away from
disabled benefit claimants and towards pro-active enforcement
of the Equality Act in the area of private sector recruitment.
April 2011
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