Written evidence submitted by Stockton
CAB
1. SUMMARY
1.1 We understand that though the Committee's
focus is on the migration the committee is interested in examining
all aspects of the Limited Capability for Work (LCW) assessment
process.
Stockton-on-Tees and District Advice and Information
Service (Stockton CAB) has seen a substantial increase in the
numbers of claimants who have experienced problems with entitlement
to benefit in respect of incapacity. We are concerned that these
problems will worsen with migration.
1.2 This report concentrates on the following
areas of concern:
— Claimants
who do not attend medicals are refused entitlement to benefit,
subject to just cause provisions.
— We
have seen a increasing number of clients who are refused benefit
on these grounds.
— The
claimants that we deal with who are refused benefit following
non-attendance are often those with severe mental health problems.
— It
is possible that part of the problem might lie with a more inflexible
approach which may, in turn, be due to the nature of the decreased
level administrative decision making undertaken in house.
— It
is considered disproportionate that benefit is stopped completely
in these instances.
1.3 The following conclusions are drawn:
— The
process of assessment should be retained in house.
— Consideration
should be given to sourcing information from other places such
as GPs, CPNs.
— Consideration
should be given to a fast track to a medical for vulnerable claimants
who have failed to attend a previous medical.
— Consideration
should be given to not simply stopping benefit.
— Consideration
be given to clarifying guidance that claimants can re-qualify
for the assessment rate of ESA.
— That
measures are put in place to assist claimants who have greater
difficulty managing to get to medicals to attend (eg text messaging,
phone calls, e-mails etc).
— That
the assessment of the time by which claimants are expected to
be work ready be put on a statutory footing and communicated to
claimants.
2. DETAILS
2.1 In connection with this investigation we wish
to ask the Committee to consider the matter of disallowance due
to non attendance at medicals. This may prove to be a particular
problem with many claimants who have traditionally been exempt
(eg severe mental illness/disability) who may have to attend their
first medical in many years. We are concerned that there is already
an estimated threefold increase in the numbers of clients we have
seen who are seeking our assistance in connection with problems
associated with being disallowed benefit following non attendance
at medicals:
A client of our youth advice service, had a broken
leg at the time of completing his ESA50 questionnaire. Since then
he had started to suffer from depression had failed to attend
a medical. He had slept in after having been up all night following
the birth of his first child.
He was told that he did not have good cause for
not attending.
2.2 Though the Current legislation (Appendix
2) does not appear to differ greatly from its predecessor under
Incapacity for Work legislation (Appendix 1) it is our experience
that the number of clients seeking help in connection with refusal
has increased.
2.3 We are unclear whether this arises due to
an increased reliance on Atos medical services increased evaluation
role, which does not allow for the level of nuanced decision that
might be made where the process is internal. It is noted that,
with the introduction of ESA, Atos appear to have assumed a far
greater role in determining the procedure to follow in assessing
a claimant's LCW and in the process administrative decision making
associated with this. It is suggested that it is the nature of
a contractual relationship that this arrangement makes it harder
to approach individual cases innovatively (in comparison to such
decisions made in house).
2.4 All the clients we have seen who have suspended
for not attending medicals have had some degree of mental health
problems. In many cases the degree of mental health problems are
severe and are often a significant contributory factor in the
non-attendance. consequence of her mental health problems. She
was told that if she failed to turn up on time again she would
be sanctioned:
One client who had been refused benefit following
non attendance at a medical, was told she had to sign on. She
indicated that she had missed two appointments through her poor
memory as a consequence of her mental health problems. She was
told that if she failed to turn up on time again she would be
sanctioned.
2.5 In these circumstances, the difficulties
faced by claimants with mental health problems are exacerbated
by the fact that the benefit options for claimants are limited.
We have seen a worrying number of clients who have not claimed
benefit at all or who are having considerable difficulties coping
with claiming alternative benefits.
2.6 It is currently the case that most claimants
who appeal a decision refusing benefit are entitled to claim Employment
and Support Allowance pending the determination of their appeal
(see Appendix 3):
Another client, with learning difficulties, was
terrified at the thought of having to use the new touch screen
on being told she had to sign on due to her illiteracy.
2.7 Unfortunately, this is not an option in the
case of claimants who are treated as not having limited capability
for work because of non attendance. In these circumstances, unless
claimants can show that their condition has significantly worsened
or they have a new condition they can only, initially, claim Jobseekers
Allowance.
2.8 Vulnerable claimants often have difficulty
expressing themselves and may have "fallen out" of the
system through non-engagement with mental health services, due
to motivational problems associated with their condition.
A client with such severe agoraphobia such that
she could not even leave the house when her house was on fire.
She is lacking is self confidence and unable to articulate her
difficulties. She failed to take action for five months therefore
had been without any income for six months until a late appeal
from CAB was successful on revision.
2.9 It is recommended that more use of alternative
sources of evidence are used there being no requirement in law
that a formal medical assessment is undertaken. At the moment
a medical assessment by Atos Medical Services appears to be seen
as the default position and it is suggested that medical assessment
is frequently seen as an accurate assessment of entitlement. Unfortunately
(in our experience), this is often not the case. It is found that
medical assessments are often inaccurate, based on misconceptions
due to erroneous assumptions and especially poor at assessing
the circumstances with claimants with mental health problems/mental
disability. The approach taken in reports has been criticised
by the Upper Tribunal[70]
for not properly assessing the claimant's condition in terms of
the statutory test.
2.10 Though an appeal can be made against a decision
that a claimant has good cause and the vast majority of cases
we appeal are overturned, tribunals can currently take five to
nine months to be heard due to the demand on HM Courts and Tribunal
Service[71].
To give the credit to the local decision making and appeals team
a number of cases are revised before cases get to appeal but many
cases still go ahead to appeal and, again, the vast majority of
these are overturned. It is noted that, though most of the cases
are overturned on the basis that Medical Services have provided
inadequate details that letters have been sent, there are often
underlying additional problems that have complicated the situation
for the claimant:
A client who comes under a different Benefit Delivery
Centre failed to attend a medical due in the most part to considerable
mental health problems. He had made a new claim and was in danger
of losing his house when he called in to see us as mortgage interest
had ceased. The new claim was refused following a medical, probably
because the claimant was in denial about his mental health problems.
Benefit was paid but subsequently withdrawn following a review,
which the claimant was not advised of. The BDC maintain that benefit
should not have been paid as their guidance states otherwise.
The decision is being challenged.
2.11 We note that new claims can be made but
this will inevitably lead to a long wait for the claimant which
experience would suggest is at least two months. It remains our
view and that of the local office that if a decision is, subsequently,
made that a claimant does not have LCW that this can be appealed
and that the claimant can qualify for the assessment rate of ESA
pending a decision under regulation 30 (Appendix 3). It is of
concern that this does not appear to be the guidance universally,
as a different BDC has told us that their internal guidance is
that such a claim cannot be made. It is suggested that this is
a disproportionate response and appears to discriminate against
this group of claimants compared with their counterparts who have
not failed to attend a previous medical:
A client of our youth advice service did not attend
a medical because, due to mental health problems she had not been
able to remember an appointment that had been arranged over the
telephone. The confirmatory notice was sent three days after the
medical took place. Her physical health was also very poor - to
the extent that on the date when the decision was sent out she
was in hospital. Her mental and physical health significantly
deteriorated after this time but no member of staff at the department
appears to have suggested a new claim.
2.12 We also note that, under new rules, there
is a mandatory referral to work programme activities where the
claimant is expected to return to work in three months. The length
of time until a claimant might be work ready is currently determined
by decision makers in local offices and does not have any implications
on the claimant (other than when they may be called for a new
medical, which admittedly does cause distress in many of our clients)—nor
are claimants advised of the date as a matter of course. We suggest
that, it would be appropriate to put, what is in effect a period
of award, on a statutory footing and communicate this to the claimant
so that the claimant is able to challenge the decision.
3. CONCLUSIONS
3.1 The process of assessment should be retained
in house except in the case of medical assessment which should
not be used as the default source of information.
3.2 Consideration should be given to sourcing
information from other places such as GPs, CPNs, etc. This approach
works well in Disability Living Allowance cases and can lead to
an approach which better takes account of the claimants normal
circumstances and variation in conditions. Alternatively the examination
is often reduced to yes/no answers to questions which do not,
in the eyes of claimants, have yes/no answers.
3.3 Consideration should be given to a fast track
to a medical for vulnerable claimants who have failed to attend
a previous medical.
3.4 Consideration should be given to undertaking
sanctions of ESA rather than completely ending benefit or, preferably,
extending provisions that allow receipt of benefit pending appeal
to be extended to claimants appealing a good cause decisions.
3.5 Consideration be given to clarifying guidance
that claimants can re-qualify for the assessment rate of ESA.
3.6 That measures are put in place to help claimants
who have greater difficulty managing to get to medicals to attend
(eg text messaging, phone calls, e-mails etc).
3.7 That assessment of the time by which claimants
are expected to be work ready be put on a statutory footing and
communicated to claimants.
April 2011
APPENDIX 1
PROVISIONS IN
SOCIAL SECURITY
(INCAPACITY FOR
WORK) REGULATIONS
1995 REGARDING ATTENDANCE
AT MEDICALS
Person may be CALLED
for a medical examination
8.—(1) Where it
falls to be determined whether a person is capable of work, he
may be called by or on behalf of a health care professional
approved by the Secretary of State to attend for a medical examination.
(2)Subject to paragraph (3) where a person fails
without good cause to attend for or submit himself to such an
examination, he shall be treated as capable of work.
(3)A person shall not be treated as capable of work
under paragraph (2) unless written notice of the time and place
for the examination was sent to him at least 7 days beforehand,
or unless he agreed to accept a shorter period of notice.
Matters to be taken into account in determining
good cause
9. The matters which
are to be taken into account in determining whether a person has
good cause under regulation 7 or 8 (failure to provide information
or attend a medical examination) shall include-
— (a) whether
he was outside Great Britain at the relevant time;
— (b) his
state of health at the relevant time; and
— (c) the
nature of any disability from which he suffers.
APPENDIX 2
PROVISIONS REGARDING
ATTENDANCE AT
MEDICALS IN
THE EMPLOYMENT
AND SUPPORT
ALLOWANCE REGULATIONS
2008
Claimant may be called for a medical examination
to determine whether the claimant has limited capability for work
23.—(1) Where it
falls to be determined whether a claimant has limited capability
for work, that claimant may be called by or on behalf of a health
care professional approved by the Secretary of State to attend
for a medical examination.
(2) Subject to paragraph (3), where a claimant fails
without good cause to attend for or to submit to an examination
listed in paragraph (1), the claimant is to be treated as not
having limited capability for work.
(3) Paragraph (2) does not apply unless written notice
of the time and place for the examination was sent to the claimant
at least 7 days in advance, or unless that claimant agreed to
accept a shorter period of notice whether given in writing or
otherwise.
24. The matters to
be taken into account in determining whether a claimant has good
cause under regulations 22 (failure to provide information in
relation to limited capability for work) or 23 (failure to attend
a medical examination to determine limited capability for work)
include:
— (a) whether
the claimant was outside Great Britain at the relevant time;
— (b) the
claimant's state of health at the relevant time; and
— (c) the
nature of any disability the claimant has.
APPENDIX 3
PROVISIONS REGARDING
ATTENDANCE AT
MEDICALS IN
THE EMPLOYMENT
AND SUPPORT
ALLOWANCE REGULATIONS
2008
30.—(1) A claimant
is, if the conditions set out in paragraph (2) are met, to be
treated as having limited capability for work until such time
as it is determined:
— (a) whether
or not the claimant has limited capability for work;
— (b) whether
or not the claimant is to be treated as having limited capability
for work otherwise than in accordance with this regulation; or
— (c) whether
the claimant falls to be treated as not having limited capability
for work in accordance with regulation 22 (failure to provide
information in relation to limited capability for work) or 23
(failure to attend a medical examination to determine limited
capability for work).
(2) The conditions are:
— (a) that
the claimant provides evidence of limited capability for work
in accordance with the Medical Evidence Regulations; and
— (b) that
it has not, within the 6 months preceding the date of claim, been
determined, in relation to the claimant's entitlement to any bene?t,
allowance or advantage which is dependent on the claimant having
limited capability for work, that the claimant does not have limited
capability for work or is to be treated as not having limited
capability for work under regulation 22 or 23 unless:
— (i) the
claimant is suffering from some specific disease or bodily or
mental disablement from which the claimant was not suffering at
the time of that determination;
— (ii) a
disease or bodily or mental disablement from which the claimant
was suffering at the time of that determination has significantly
worsened; or
— (iii) in
the case of a claimant who was treated as not having limited capability
for work under regulation 22 (failure to provide information),
the claimant has since provided the information requested under
that regulation ; or
— (c) that
it has not, within the 6 months preceding the date of claim, been
determined, in relation to the claimant's entitlement to any benefit,
allowance or advantage, which is dependent upon the claimant being
incapable of work, that the claimant is capable of work, or is
to be treated as capable of work under regulation 7 or 8 of the
Social Security (Incapacity for Work) (General) Regulations 1995
(the 1995 Regulations), unless:
— (i) the
claimant is suffering from some specific disease or bodily or
mental disablement from which the claimant was not suffering at
the time of that determination;
— (ii) a
disease or bodily or mental disablement from which the claimant
was suffering at the time of that determination has significantly
worsened; or
— (iii) in
the case of a claimant who was treated as capable of work under
regulation 7 of the 1995 Regulations (failure to provide information),
the claimant has since provided the information requested by the
Secretary of State under that regulation.
(3) Paragraph (2)(b) does not apply where a claimant
has made and is pursuing an appeal against a decision that embodies
a determination that the claimant does not have limited capability
for work and that appeal has not yet been determined by an appeal
tribunal constituted under Chapter 1 of Part 1 of the Social Security
Act 1998.
70 2010 UKUT 50 AAC. Back
71
In spite of the fact that the throughput by tribunals in our area
has increased substantially. Back
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