Migration to ESA

ESA 31

Written evidence submitted by Darren Thomas

1.I am responding to your invitation for individuals to submit evidence to your inquiry into Employment and Support Allowance and the Work Capability Assessment.

2.The migration of Incapacity Benefit claimants to Employment and Support Allowance is a matter of serious concern, given the disastrous consequences the Work Capability Assessment has already had. Due to the nature of the assessment, thousands upon thousands of sick and disabled people have been passed as fit for work when they quite clearly are not. Even the terminally ill have been deemed fit for work. In my view, the reasons for this are clear: the design of the assessment itself, and ATOS, the private corporation which administers it.

3.Firstly, the WCA itself is a farcical tick-box exercise in the literal sense of that phrase. On the one hand it is incredibly crude and superficial, on the other hand it is outrageously harsh and unfair. I know from experience that any attempt to explain to the ATOS assessor the effects of how one’s illness or disability impacts on daily life is met with impatience, the assessor instead asking such vital questions as "do you watch films on TV?" and "when did you last go to a shop to buy a CD?". The test is literally a series of questions on a computer monitor, and the assessor is simply there to tick the boxes. The idea that this pre-determined, one-size-fits-all list of questions is enough to cope with the many and varied illnesses and disabilities that an assessor will encounter, let alone give a detailed picture of how illness or disability affects someone, is intellectually risible, yet that is the system currently in place.

4.Secondly, there is mounting and widespread concern about the role of ATOS in this process. ATOS has a highly lucrative contract with the DWP to carry out the WCA. Since ATOS assumed this role, a distinct trend has become apparent. Many seriously sick and disabled people are deemed fit for work; they then ask for a copy of the ATOS assessor’s report; and when they receive it they find it bears little or no relation to what they actually told the assessor. Organisations such as the Citizens Advice Bureau will tell you that this is not just happening in a handful of isolated cases – on the contrary, it is very common indeed. It is widely suspected that ATOS is incentivized to produce reports which it knows will result in denial of benefit. Unfortunately, all attempts thus far to obtain details of ATOS’ contract with the DWP have been unsuccessful, with even Freedom of Information requests turned down. For sick and disabled people subjected to ATOS’ "assessments" this is an almost impossible situation. A private corporation being offered financial incentives to produce reports which it knows will result in denial of benefit is the sort of thing which would never be permitted in a court of law: it is like finding yourself on trial before a jury which has already been offered money to find you guilty. In other words, whereas even those accused of the most serious and heinous crimes, such as murder, rape and child abuse, have the right to be considered innocent until proven guilty, and the right to a trial by an impartial judge and jury – and rightly so - the WCA assessments carried out by ATOS deny those rights to the sick and disabled, who are considered guilty until proven innocent. Such is the Kafkaesque nightmare to which the sick and disabled are subjected.

5.If ATOS were providing an impartial, objective and high quality service, one would expect the level of appeal success to be very low. However, around 40% of appeals succeed even when the claimant has no-one to represent them at their tribunal. When they do have representation (for example, someone from the CAB), that figure rises to around 70%. The fact that such a high proportion of appeals are successful – and, therefore, that such a high proportion of ATOS assessors’ reports are found to be wrong – is surely proof that something is going very badly wrong; especially as the appeals tribunals consist of independent people, in contrast to those who conduct the WCA, i.e. ATOS staff, who are working for a company motivated by the profit motive. It is certainly amazing how often the verdict changes when that profit motive is removed from the equation.

6.Bearing in mind all of the above, one may well wonder how on earth we have ended up with a situation in which so many sick and vulnerable people are being put through such suffering and misery at the behest of a private corporation. I would strongly urge you to read the following article, which answers this question in some detail. It only takes a few minutes to read and is most illuminating: http://www.lwbooks.co.uk/journals/articles/rutherford07.html

7.The information in this article will come as no surprise to anyone who has been on the receiving end of ATOS’ tender mercies, but it is deeply disturbing nonetheless. What it makes clear is this: the WCA now being run by ATOS in the UK is essentially the same as an assessment system which was tried in an American court and found to be both corrupt and illegal. In particular, the article mentions the four areas of concern identified by the multi-state review following the 2003 court case: "excessive reliance on in-house professionals; unfair construction of doctors’ reports; a failure to properly evaluate the totality of the claimant’s medical condition; and an inappropriate burden on the claimant to justify eligibility for benefit". All of this will sound all too familiar to those with experience of the way in which ATOS operates. The fact that such a system has been introduced here in spite of the scathing verdict of the American authorities is profoundly shocking. In my view, the respective roles played in this sorry and depressing saga by UNUM, ATOS and Mansel Aylward, as outlined in the article, ought to be a matter of serious concern. This information deserves to be far more widely exposed. As the article shows, the reason the WCA seems to be skewed against the claimant is simple: it seems to be so skewed because it actually is; and furthermore, it is meant to be. What we have here is an ideologically driven assessment system whose sole purpose is to make it as hard as possible for the sick and disabled to qualify for the benefits they desperately need just to keep their heads above water. As if that were not bad enough, ATOS is being paid huge sums of taxpayers’ money to carry out this morally bankrupt agenda. (It is also worth noting that there appears to be no evidence that the ESA / WCA regime has resulted in any increase in the numbers of sick and disabled people moving into employment (let alone sustainable employment) – and yet that was supposed to be the justification for the existence of this regime in the first place.)

8.It can therefore come as no surprise that so many people are being wrongly assessed as fit for work. The WCA is deliberately skewed against the claimant, and the company implementing it has a vested commercial interest in producing as many reports as possible that it knows will result in denial of benefit. ATOS typically uses two arguments to defend its conduct, neither remotely credible. The first is that decisions on who is eligible for benefit are not taken by ATOS staff, but by DWP decision makers. This is true, but is, to put it charitably, very economical with the truth. One of the most common complaints about the WCA is that medical evidence from a claimant’s GP and even hospital consultant is simply ignored (by both the ATOS assessor and the DWP decision maker). It does not matter if one has medical evidence from an eminent hospital consultant going back many years – this is dismissed out of hand in favour of the crude 30 minute tick-box snapshot gleaned from the WCA. In other words, the DWP decision makers simply rubber stamp the ATOS assessors’ reports, even though evidence from a hospital consultant will inevitably be vastly superior and more authoritative in its level of expertise. It is indeed extraordinary that the opinion of ATOS assessors – who are frequently not fully qualified doctors – is given greater weight than the views of GPs and hospital consultants. (It is worth noting in passing the irony of the government’s policy of allowing GPs to control their own budgets, on the grounds that "GPs know their patients best" - except, it seems, when it comes to the WCA, in which case it is the often dubiously qualified ATOS assessor ticking boxes on a monitor who knows the patient best!)

9.To counter this objection, ATOS then deploys its second argument: the WCA is not a diagnostic test, but a functional test, and hence not a "medical assessment" in the sense in which one would normally understand that phrase. The intellectual vacuity of this argument is obvious : if the assessor does not have a proper medical understanding of the claimant’s illness or disability, it is highly unlikely that they will have a proper understanding of how the symptoms of that illness or disability impact on daily life. (To give just one anecdotal example of an ATOS assessor’s level of understanding: I read of one person who was asked by the ATOS assessor, "are you still diabetic?", to which the bemused claimant responded, "I wasn’t aware a cure had been found".)

10.As if all this were not enough, even Professor Paul Gregg, who designed a key element of Employment and Support Allowance, has warned against extending the WCA to Incapacity Benefit claimants until the serious problems with the WCA have been rectified. He has stated that the assessment system "is badly malfunctioning", and indeed is "a complete mess". To quote him more fully: "We need to trial the new, proposed, reformed system to check and prove that it works and avoids the serious stress and misclassification of people that we have already seen, before we start implementing it on a large and vulnerable population……..The test so far has caused a huge amount of anguish to the people who have gone through it. We need to have something that is working accurately before we apply it nationally. We shouldn’t roll this out until we have something that is working." The Citizens Advice Bureau’s verdict is equally damning: the WCA is "not fit for purpose". Unfortunately we now know that the government has decided to go ahead with the migration of Incapacity Benefit claimants to ESA anyway. In fact, it is even worse than that: as of March 28th, a new version of the WCA has come into force which is even more ludicrously harsh and unfair than the version which has already caused so much suffering (and one must wonder how much good the recommendations of the Harrington report will do, given that Professor Harrington was examining the pre-March 28th version of the WCA, not the even harsher new version).

11.The consequences of this are easy to predict. Even greater numbers of people will be deemed fit for work even though they are not (at which point they may have no option but to try claiming Job Seekers Allowance, even though that benefit is simply not designed for the sick and disabled); the level of appeals will rise even further; GPs and hospital consultants will have to try to pick up the pieces of their patients’ physical and mental health deteriorating even further as a result of having to go through the extremely daunting and lengthy appeals process (and indeed the financial hardship resulting from having their benefit cut) – and meanwhile, ATOS will continue to pocket vast sums of taxpayers’ money, safe in the knowledge that it doesn’t matter how often their assessors’ reports are found to be wrong by independent tribunals, or how much misery they cause to the sick and vulnerable; they still pocket the cash anyway, and they are of course utterly unaccountable. (Incidentally, one result of even more people appealing will be an increase in the length of time it takes for an appeal to be heard – and it already takes so long that, by the time an appeal is heard, even if the appeal succeeds, the successful claimant sometimes finds themselves called in for another WCA by ATOS within a matter of weeks of winning their appeal, thus setting the whole extremely stressful process off again. ATOS should not be allowed to subject someone to another WCA so soon after their own assessor’s decision on the previous WCA has been found to be wrong).

12.I do not think it is unreasonable to suggest that when an independent tribunal finds an ATOS assessor’s report to be wrong, and the claimant’s appeal is successful, it is ATOS themselves who should be made to foot the bill for the cost of that tribunal. The taxpayer should not have to pay for ATOS’ failings; and since the profit motive appears to be the only thing to which ATOS pays any attention (few would suggest that a philanthropic concern for the sick and vulnerable forms any part of their motivation for conducting the WCA), being made to foot the bill for successful appeals might just force them to get their act together.

13.This, however, would be simply an attempt to make the best of a very bad job. It seems to me that the ideal solution to this whole sorry business is to return to the assessment system used for Incapacity Benefit. Those assessments were carried out by properly qualified doctors, and, as they were not working for a private corporation, there was no question mark over the integrity of the system due to the presence of the profit motive (thus, returning to the Incapacity Benefit system would have the enormous advantage of getting rid of the likes of ATOS – if they were sent packing, there would be precious few tears shed by the sick and disabled people of this country). That assessment was also far more medically rigorous than the superficial nonsense of the WCA, and it also took medical evidence from GPs and consultants into account. Nor can this system be said to have been lax: the article to which I have provided a link mentions that in 2003 the OECD described Britain’s benefits gateway as "one of the toughest in the world", and indeed audits conducted by successive governments, including those actively trying to remove as many people from Incapacity Benefit as possible, regularly found the level of fraud to be remarkably low.

14.Bearing in mind all the points I have raised in this e-mail, I hope you will do whatever is in your power to try to improve the current appalling situation for the sick and disabled. Chris Grayling has attempted to defend going ahead with the migration of Incapacity Benefit claimants to ESA as a process of continuous "refinement" (despite the fact that this national migration is starting virtually immediately following the end of trials in two areas of the country – quite how those trials can be properly evaluated when no time is being allowed for that evaluation is, to put it mildly, not immediately apparent). However, the whole point of refinement is, at least in theory, to improve the system, not make it even worse. The new version of the WCA is certain to achieve the seemingly impossible feat of inflicting even more widespread suffering and misery on the sick and disabled than the pre-March 28th version, especially with Incapacity Benefit claimants forced to go through this new version along with new claimants. There have already been anecdotal reports of people being denied benefit, driven into poverty and despair as a result, and tragically, in some cases, even suicide. The new version of the WCA can only cause an increase of such cases. This is surely not morally tolerable: if a society is judged by how it treats its’ most vulnerable members, we are in a poor state indeed.

April 2011