Migration to ESA

ESA 26

Written evidence submitted by Middlesbrough Council Welfare Rights Group

This response to the inquiry is primarily from a Welfare Rights perspective and should be regarded as such; our main concern in drafting this document has been to highlight the effect that the changes will have to our clients and the people of Middlesbrough.

It is within the remit of the Welfare Rights Unit to advise, help and represent Middlesbrough residents at all stages in the process of claiming welfare benefits from initial form filling to appeals to the lower and upper tribunals.

The most recent figures from the DWP show 8000 Middlesbrough residents in receipt of Incapacity Benefit.

These claimants fall into three groups:

1. People who have claimed IB/Invalidity Benefit due to ill health and are paid contribution based benefit (not means tested).

2. People receiving Income support due to incapacity (means tested).

3. People who have been disabled since childhood and are paid IB/Invalidity Benefit due to incapacity in youth at the same rate as those on contribution based.

Each set then falls into two sub groups:

1. Social Care Users.

2. Non-Social Care Users.

We have defined the sub groups because in particular the Social Care Users claims/reassessment will have an impact on Social Care.

Any claimant being migrated over to ESA will have been on an incapacity related benefit for a minimum of three years. For a significant number of claimants this will be more than 5 or even 10 years.

Anyone claiming since October 2008; will have claimed ESA. The only exception will be a small number of claimants who would have reclaimed IB following a period in work their incapacity being linked back to their previous claim.

A number of claimants will be reaching state retirement age within the 3 years that migration is anticipated to take and some people will have returned to work, we would estimate that between 2000 and 2500 claimants will be reassessed a year.

This begs the question; who will help all these people if they need it?

Our organisation currently is working to capacity and advises 12 people a day on the telephone (max 2964 per year) and has 8 outreach appointments a day (max 1976) to help people fill out forms etc. There are other providers such as CAB but they are also working to capacity and have had to cut staff numbers due to cuts in funding. Legal Aid does not cover costs for form filling or appeal representation and it has been proposed that Welfare Benefits be taken out of the scope of Legal Aid.

The pilot studies carried out by the DWP showed that 30% of people who were reassessed failed to reach the threshold for ESA. The pilot study was carried out using the old work capability assessment. The new assessment criteria have a reduced number of criteria from which claimants can achieve the relevant points. The level of disability that has to be demonstrated to achieve points has also been increased. We therefore feel that the number of claimants who fail to qualify for ESA will be significantly higher than the 30% in the pilots.

When the migration of claimants from IB to ESA was mooted and the legislation passed it was for a transition from IB to ESA. Now however the goal posts have changed and it is proposed that claimants on contribution based ESA will only receive the benefit for a year if they are placed in the work related activity group.

We are concerned that the migration of IB claimants to ESA constitutes retrospective legislation as does the intention to limit the amount of time that existing claimants will be entitled.

Statistically disabled people remain out of work for longer than those that are able bodied, those that have been out of work for more than two years are statistically unlikely to find work unless they receive a substantial amount of help.

What will happen to the claimants who are found fit for work but do not qualify for means tested benefits such as JSA or Pension Credit? There is a risk that their households will become low-income households their spouse’s salary or their ill health pension being the only income coming into the household. Pensions paid due to ill health retirement were historically low due to the fact that they would be topped up by incapacity benefits. These families may have significant problems meeting their housing costs particularly if they have a mortgage on their property.

Historically someone retiring early would be advised to take a larger lump sum and smaller weekly payment. This was prudent financial planning if taking ill health retirement. The reduced weekly payment also reduces the tax burden on the individual if they were to re-enter employment.

Someone in work can make adjustments and provision for ill health; these claimants who have been ill health retired for some time cannot do this.

There has been very little information put into general circulation with regards to the changes and the implication they hold for this group of claimants. This group are also the least likely to have accessed services such as ours.

This group are also the most likely to be dissatisfied with the process. They see the IB as being a right due to their having worked and paid national insurance contributions. The writer has had numerous clients she has advised on appeals due to not reaching the threshold of the personal capability assessment. They have felt very let down that benefit was withdrawn because they felt that NI was a type of insurance against being unable to work due to ill health "private insurance could not be stopped like this".

Claimants receiving income support because of incapacity for work will not suffer the same financial consequences if found capable of work, JSA means tested is paid at the same rate as IS. We are however concerned that they will struggle to comply with the regime of JSA.

Claimants entitled to incapacity in youth are often amongst the most disabled in society, they are also more likely to be clients of social care. They are unlikely to have had regular reassessments of their IB, it will have been reviewed on an occasional basis or not at all.

Some will have the local authority as their appointee and as such the migration process will have an associated cost implication and be time consuming to local authority staff.

Some will have parents or relatives as appointee who may not appreciate the importance of the ESA50 when it arrives.

We have already had cases where clients have come to us when ESA has been stopped due to appointees not appreciating the importance of the client attending the medical. The length of time (up to 12 weeks) that it takes for another medical to be arranged can cause considerable financial problems. We have seen clients in supported living schemes go into considerable arrears with their housing costs.

We are unable to comment on the department’s communications because we know that they have been updated and we have not seen the final copies. Also a significant amount of communication is proposed by telephone.

From experience with the current ESA regime we would say that the DWP and ATOS need to look at the previous medicals and information held on file. They cannot rely on the information in the ESA50, people with learning difficulties or mental health problems often adopt a coping strategy where they say everything is OK. They also do not list all of their problems.

The writer was recently successful at appeal for a service user with a learning difficulty. The ESA50 had been sent to her address and filled out by a friend "because the service user could not read and write". The friend who also had a slight learning difficulty completed the ESA50 in barely legible English and went to the medical with her friend. The client did not want to bother her social worker so did not ask for help. The assessment process does not routinely involve requesting information from GP’s or Social Workers, it is purely based on the ESA50 and the medical assessment. At assessment the interview was very quick and our client told the EMP they could do everything and did not have any problems. The DWP did not change the decision on review. On the morning of the appeal we received a phone call to say that we did not need to attend as the Tribunal had decided to make the award based on the papers.

The writer has had similar experiences with clients who have mental health problems; again they adopt a coping strategy of telling the EMP that everything is OK. Their appeals are successful but at the cost of considerable distress and financial hardship to the client. One client became so stressed by the appeals process and the thought of going to appeal that her incidences of self-harm increased. We have submitted additional medical evidence of such quality that revisions of the secretary of states decision should have been made prior to the appeal date, such as statements from health care professionals that the claimant poses a significant risk of harm to the people around them, that there condition is so bad that it would pose a serious risk to there health if they were to be found fit for work.

We have also had cases where even though Examining Medical Practitioner was given details of all the medication that the claimant was on they failed to identify all of the medical conditions that the claimant was suffering from. Most significantly a highly depressed claimant who was taking a significant cocktail of anti viral medication was not identified as being HIV positive. Something that the claimant was too embarrassed to tell her.

For a case to get as far as an Appeal Tribunal carries with it a significant cost to the Tribunals Service and to organisations such as us. This could be avoided if the original decision was made based on adequate and relevant medical evidence. A simple Examining Medical Practitioners report based on a 45 minute interview is often not enough.

Clients that have been reassessed for ESA have been shocked that their previous medicals have not been made available to the EMP and are not used in the decision making process.

The biggest improvement to the decision making process would be to routinely write to the Medics and Social Care Staff detailed on the ESA50. This would have a cost implication but would lead to savings by the reduction in appeals and healthcare cost due to the trauma caused by wrong decisions.

The DWP appeals sections and Tribunals Service is currently overloaded with appeals particularly for ESA. Services such as our own are also at capacity with appeals. Disallowances due to the migration of claimants from IB can only make this situation worse. Substantial funding will be needed to ensure that the waiting time for appeals does not go beyond the year that we are waiting for some of our appeals. If funding for the Tribunals Service was increased and their capacity increased, consideration also needs to be given to funding for representation. The people who are to be subject to this migration are amongst some of the most disadvantaged in society.

We are also concerned that the DWP may be actively discouraging people from appealing or not telling claimant when they speak to them on the phone. The DWP should welcome appeals and deal with them expediently and fairly.

The Harrington Review made a number of recommendations and we are concerned that these are not being implemented. The DWP committed to a two-year process and yet the new Work Capability Assessment is being implemented without the two-year review that was built into the implementing legislation that brought about Employment and Support Allowance.

This whole process when considered in conjunction with the massive changes that are proposed to the entire benefits system and process is going to overwhelm both claimants and advise providers.

I am enclosing a copy of an advice leaflet that our unit has produced; this has been outdated already with regard to contribution based ESA. We would however ask that you compare the advice that we are giving to that that the DWP has produced and consider the difference in the actions it will prompt from claimants.

We would be happy to send a representative to answer any questions that the Committee may have of advisors that work at "the coalface" so to speak.

April 2011