Written evidence submitted by RSI Action
SUMMARY
RSI Action has a number of concerns relating to ESA,
and submitted evidence to the Work and Pensions Select Committee
in September 2009. Since then we have been further concerned at
the WCA changes proposed by DWP, and by further experiences of
working with disabled benefit claimants.
The evidence and recommendations below relate to
the specific issues which the committee are investigating, and
include recommendations to improve both processes within DWP and
their sub-contractors, and also within the tribunal system.
RSI ACTION
RSI Action is a national charity (Registered Charity
No 1114977) focused on Repetitive Strain Injury conditions (RSI),
which are frequently caused by work activities, and can result
in a significant degradation in the capacity for work. RSI Action
is a member of the Disability Benefit Consortium.
EVIDENCE
The Department's communications
to customers going through the assessment and whether the information,
guidance and advice provided by the Department and Jobcentre Plus
is effective in supporting customers through the process
1. No specific comment on this issue, although
some of the points raised in other sections may have an impact
on the Department's communication and guidance (eg with respect
to reliability repeatability and safety, and the details of WCA
descriptors).
The Work Capability Assessment (WCA)
including: the assessment criteria; the service provided by Atos
staff; the suitability of assessment centres; and customers' overall
experience of the process
2. RSI Action and other disability charities
have repeatedly asked ministers and officials to include the consideration
of reliability, repeatability and safety within the wording of
the WCA Regulations, and within the wording of the WCA application
form (ESA50). DWP Minister Lord Freud stated in the House of Lords
debate to annul the WCA Regs (SI 228 2011) on 16 March 2011: "It
must be possible for all the descriptors to be completed reliably,
repeatedly and safely, otherwise the individual is considered
unable to complete the activity." Although similar statements
have been made by both ministers and officials from both the present
government and the previous government, claimants and their advisers
find that in reality this is often not the case.
3. Since the wording of most descriptors is for
a single action or activity, and there is no guidance to the claimant
that their ability to undertake the descriptor "reliably,
repeatedly and safely" should be taken into account, claimants
feel obliged to complete the WCA application form (ESA50) just
considering a single action, without the consequences of pain
or further disability.
4. We recommend that both the WCA Regulations
and the WCA application form (ESA50) should specifically include
the requirement to consider reliability, repeatability and safety
when considering if the descriptors can be undertaken.
5. Some of the descriptors are completely absent
from the WCA application form (ESA50), and others are missing
important parts of the descriptor criteria. For example in the
2008 WCA regulations, scheduled 2 part 1, manual dexterity descriptor
6(a) "cannot turn a star-headed sink tap with either hand"
is not included in the ESA 50. There are over 40 descriptors which
are either missing completely from the ESA50, or where key aspects
of the criteria are missing.
6. We recommend that all ESA applicants are provided
with complete information on the WCA descriptors.
The decision-making process
and how it could be improved to ensure that customers are confident
that the outcome of their assessment is a fair and transparent
reflection of their capacity for work
7. DWP have no mechanism for capturing the claimants
view of his/her capacity to undertake the WCA descriptors. In
fact as mentioned above many of the descriptors are not included
in the questions within the ESA 50 (WCA application form). DWP
does record the Atos HCP recommendation on each descriptor, and
also the decision-makers (DM) view on each descriptor. Consequently
lacks the ability to check for descriptors where the HCP and DM
decisions are frequently at variance with the applicant, and consequently
investigate if there is a systematic problem or misunderstanding
caused the variance.
8. We recommend that DWP should record the ESA
applicant's view on capacity to undertake WCA descriptors, and
to identify any systematic differences between the Atos and the
applicant's assessment.
The appeals process,
including the time taken for the appeals process to be completed;
and whether customers who decide to appeal the outcome of their
assessment have all the necessary guidance, information and advice
to support them through the process
9. We have encountered tribunals where the tribunal
member has assessed the ability to walk 100 metres by asking the
applicant if he could walk to a building visible from the tribunal
room. However the tribunal room was five floors up, there was
no ground, roads, or trees visible, just parts of large high rise
buildings. The applicant had no means of assessing how far away
the building was, or the scale of the landscape.
10. We recommend that tribunal's should only
ask questions where it is reasonable to expect the applicant to
have the information or knowledge to provide an accurate response.
11. We have found significant delays involved
in ESA tribunals which appear to result from some of the procedures
adopted by tribunals. In one case, the First Tier Tribunal heard
and disallowed the ESA case in mid September 2010, but over 30
weeks later we are still awaiting the necessary paperwork from
the first tier tribunal to appeal to the upper tribunal. Two-days
after the hearing we received the decision notice, advising that
the first step for permission to appeal was to apply to the first
tier tribunal for a statement of reasons (no mention in th tribunal
bundle of a record of proceedings). We immediately applied, and
received statement of reasons in mid-January 2011. However it
referred to 20 pages of the case bundle which neither the applicant
or the representative had been provided with, which we now know
to be the record of proceedings. We immediately applied for the
record of proceedings, which arrived at the end of February, however
it was 20 pages of handwritten manuscript most of which was illegible.
We immediately asked for a typed copy, which has not yet been
received. Consequently in this case, more than six months after
the first tier tribunal, the applicant is still unable the submit
to grounds for appeal to the upper tribunal, furthermore the Tribunal
Service have not advised when they will be able to comply with
our request for a legible record of proceedings, and the applicant
has been denied ESA benefit since November 2009.
12. We recommend that tribunal's should be required
to make the statement of reasons, and the record of proceedings
available to the claimant within one month of the request, and
that the information provided to the claimant with the decision
notice, should advise the claimant (and representative) that there
are two documents they may wish to request (statement of reasons
and record proceedings), so that both can be requested at the
same time and both be provided within a single one month period.
A one-month time limit would be compatible with the time limit
which is allowed for the claimant to provide a case for appeal
to the tribunal.
13. We understand that medical members of tribunal's
are not required by the Ministry of Justice to hold a GMC licence
(although they are required to be registered by the GMC). Licensing
for doctors was introduced in 2005 to ensure that doctors are
up to date with their practice and knowledge, and are still suitable
to continue their work as a doctor. The GMC are required to establish
a system for relicensing (known as revalidation), but the responsibility
of legislation determining which doctors must be licensed is delegated
to primary or secondary legislation applicable to the work that
the doctor is undertaking. In the case of medical members of tribunal's,
this is the responsibility of the Ministry of Justice. We understand
that the Ministry of Justice has decided that medical members
of tribunal's are not required to be licensed. Whilst they will
be registered, in many cases this will be a record of their academic
achievements several decades earlier, and provide little if any
confidence of their current medical experience and capability.
Since medical members of tribunals have significant influence
on determining disability benefits, it is reasonable that society
and the individual claimants expect medical members to medically
competence and up to date with their knowledge.
14. We recommend that medical members of tribunal's
should be required to be licensed by the GMC and therefore subject
to medical revalidation.
The outcome of the migration process
and the different paths taken by the various client groups: those
moved to Jobseeker's Allowance, including the support provided
to find work and the impact of the labour market on employment
prospects; those found fit for work who may be entitled to no
further benefits; those placed in the Work Related Activity Group
of the ESA, including the likely impact of the Department's decision
to time-limit contribution-based ESA to a year; and those placed
in the Support Group
15. We believe that time limiting contribution-based
ESA to one year is both unfair and unnecessary. Some disabilities
may be overcome, and enable some form of return to work after
12 months, but others may take much longer. Particularly where
a worker has had 20 or 30 years contributing to society and the
world of work, and then becomes disabled (possibly through illness
or a work-related accident), it is unfair to limit his ESA to
12 months, if his incapacity is such that medically qualifies.
16. We recommend that if the provision in the
Welfare Reform Bill 2011 to time-limit contribution based ESA
becomes legislation, then provision should be made to monitor
those cases which are time-limited, to determine the impact of
this measure.
17. The DWP have no mechanism of identifying
if ESA applicants who have been refused ESA benefit and found
fit for work, have indeed been able to find and sustain work.
Feedback from cases that have been moved from ESA to JSA should
help to validate the current ESA criteria or identify corrective
action.
18. We recommend that DWP monitor cases that
are refused ESA and found fit for work, to either validate current
ESA criteria or identify corrective action.
The time-scale for the national roll-out
for the migration process, including the Department's capacity
to introduce changes identified as necessary in the Aberdeen and
Burnley trials
19. No specific comment on this issue.
RECOMMENDATIONS
— We
recommend that both the WCA Regulations and the WCA application
form (ESA50) should specifically include the requirement to consider
reliability, repeatability and safety when considering if the
descriptors can be undertaken.
— We
recommend that all ESA applicants are provided with complete information
on the WCA descriptors.
— We
recommend that DWP should record the ESA applicant's view on capacity
to undertake WCA descriptors, and to identify any systematic differences
between the Atos and the applicant's assessment.
— We
recommend that tribunal's should only ask questions where it is
reasonable to expect the applicant to have the information or
knowledge to provide an accurate response.
— We
recommend that tribunal's should be required to make the statement
of reasons, and the record of proceedings available to the claimant
within one month of the request, and that the information provided
to the claimant with the decision notice, should advise the claimant
(and representative) that there are two documents they may wish
to request (statement of reasons and record proceedings), so that
both can be requested at the same time and both be provided within
a single one month period. A one-month time limit would be compatible
with the time limit which is allowed for the claimant to provide
a case for apponeal to the tribunal.
— We
recommend that medical members of tribunal's should be required
to be licensed by the GMC and therefore subject to medical revalidation.
— We
recommend that if the provision in the Welfare Reform Bill 2011
to time-limit contribution based ESA becomes legislation, then
provision should be made to monitor those cases which are time-limited,
to determine the impact of this measure.
— We
recommend that DWP monitor cases that are refused ESA and found
fit for work, to either validate current ESA criteria or identify
corrective action.
April 2011
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