Migration to ESA

ESA 48

 

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:

o Claimants who do not attend medicals are refused entitlement to benefit, subject to just cause provisions

o We have seen a increasing number of clients who are refused benefit on these grounds

o The claimants that we deal with who are refused benefit following non-attendance are often those with severe mental health problems.

o 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.

o It is considered disproportionate that benefit is stopped completely in these instances

1.3 The following conclusions are drawn:

o The process of assessment should be retained in house

o Consideration should be given to sourcing information from other places such as GPs, CPNs.

o Consideration should be given to a fast track to a medical for vulnerable claimants who have failed to attend a previous medical

o Consideration should be given to not simply stopping benefit.

o Consideration be given to clarifying guidance that claimants can re-qualify for the assessment rate of ESA

o That measures are put in place to assist claimants who have greater difficulty managing to get to medicals to attend (e.g. text messaging, phone calls, e-mails etc.)

o 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 (e.g. 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.

2.2 Though the Current legislation (Appendix2) 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.

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).

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 Job Seekers 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.

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 [1] 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 5-9 months to be heard due to the demand on HM Courts and Tribunal Service [2] . 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.

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 2 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.

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 (e.g. 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 benefit, 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.


[1] 2010 UKUT 50 AAC

[2] In spite of the fact that the throughput by tribunals in our area has increased substantially