Migration to ESA

ESA 32

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 Job Centre 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 Job Centre 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 150m away, but it regularly requires a wait of over 30 minutes to find a space and like many disabled people I cannot walk even 50m without experiencing significant pain. The next nearest disabled parking is 350m 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