Written evidence from the Vauxhall Community Law and Information Centre (VCLIC) HAB0153

 

  1. Vauxhall Community Law and Information Centre (VCLIC) is a community-based law centre which provides a free legal advice service to people living in the Liverpool City Region. We give advice and representation on welfare benefit, debt and housing matters.
  2. Our service users live with poverty and ill health. The best evidence available suggests that Liverpool has a higher than average portion of the population with a limiting health condition. Based on the latest census data, it shows that in 2011, 22% of people in Liverpool reported having a limiting long term health problem or disability. This compares to 17% in England overall.[1]
  3. For Liverpool in 2021, appellants were successful in 70% of completed PIP hearings (887 out of 1,259) and in 65% of completed ESA hearings (77 out of the 118 for which hearing outcomes have been reported).[2]
  4. Collectively we have a great deal of experience in providing front line legal advice on benefits. Therefore, we have some knowledge and insight to share. 
  5. As a small organisation, we are limited to providing our pooled observations and thoughts or qualitative data from a regional perspective.              

How could DWP improve the quality of assessments for health-related benefits?

Problems

  1. Our experience is that many claimants struggle with the process. Innately, applicants do not generally ‘talk to the descriptors.’ Client frequently contact us saying that they have a particular health condition and does this qualify them for PIP?
  2. Similarly, many clients will generally understate the impact of their conditions. For clients with mental health conditions, it is a significant ask, to expect them to have a detailed insight into their disability or health condition. If clients do, it can perversely be held as a point against them at assessment.
  3. What stands out from the above, is the need for appropriate support and questioning styles at an assessment. Our experience is that this is not currently the case. DWP guidance and reports currently promote and rely on informal observation of the client. It is from these observations that significant assumptions are made not only as to the claimant’s ability to manage and function.

Assumptions.

  1. We find that the assessment reports are of an inconsistent quality. They are frequently generic and formulaic with the same repeated statements and comments. Assessors often make wide sweeping assumptions from informal observations. There is frequently little evidence that the HCP has engaged in an exercise of considered and appropriate thinking about a client’s circumstances.

Evidence Collection

  1. Placing the burden of gathering evidence on claimants is a significant problem. Many claimants struggle precisely because of their health conditions and disabilities.  The process of gathering that evidence requires many functions that they are looking to be awarded points for being unable to do consistently or reliably.
  2. This is compounded the fact that gathering evidence can be difficult and takes a long time. Medical Records take a significant amount of time to come through, often after one month deadlines. Clients then often face additional costs in having to post bundles and/or travel to the GP or post office. In many cases, they cannot afford to do this. 
  3. Additionally, healthcare professionals are often reticent to provide any additional support without the client incurring significant cost. In many cases, these letters are not particularly relevant or helpful. This is alongside clients having very strict deadlines to complete and return forms.

Medicalisation

  1. While we feel that much can be done to assist claimants in gathering supporting evidence, we are concerned that far too much focus is being placed upon medical evidence by both assessors and decision makers. In some cases, we feel that Decision Makers are, in effect, abdicating their role.
  2. Medical evidence is helpful. Rarely, however, does it do more than corroborate or contextualise the claimant’s account. It is a means not the end in and of itself.
  3. PIP is a test of function and of the help that the claimants needs, not the help and support they currently get. Therefore, when decisions are seemingly turning on the claimant being on ‘first line’ antidepressants with no specialist input, it raises concerns.
  4. That Decision Makers are mimicking the misunderstanding claimants have and are fixating on support and dosages rather than exploring a claimant’s impairment and function.

Recommendations

  1. We recommend that a copy of the Healthcare Professionals Report is provided as a matter of course so that issues can be identified and challenged at an earlier stage of the process. 
  2. The Department should, as a matter of habit, seek to gather evidence itself from a claimant’s GP. That the claimant’s claim is put to their GPs and supporting medical professionals to offer comment upon.
  3. What we recommend is a fundamental culture shift and a move towards a more inquisitorial and almost collaborative approach. We are of the view that there is already a blueprint that can be followed in the tribunal but we address this further below. 
  4. We would recommend that the timescales of the process need to be reconsider and strong thought needs to be given about the Department taking on the burden itself where possible.

a) Have you seen any specific improvements in the process since the Committee last reported on PIP and ESA assessments, in 2018?

  1. Our informal observation is that several clients have felt more comfortable with the increase of remote/telephone assessments. For some clients it has been a way around the obstacles posed by having to attend in person, such as the financial burden or emotion or physical.
  2. We are in two minds. For many clients they are more comfortable with a telephone assessment. This is a positive in a sense, but we have reservations. Some clients who would opt for a telephone assessment, we would be advising them to seek a face to face assessment.
  3. We tentatively note an improvement in respect of lapsed appeals. We do think however, that the positives are undermined by pain points elsewhere in the system. It is commendable for Decision Makers to abstain from defending the undefendable and to in effect listen. Yet, it is deeply unsatisfactory for this considered approach to only emerge at the eleventh hour. Furthermore, a late considered approach cannot repair the damage caused by a poor assessment.

3. Do the descriptors for PIP accurately assess functional impairment? If not, how should they be changed? 4. Do the descriptors for ESA accurately assess claimants’ ability to work? If not, how should they be changed?

  1. Our discussion and findings are that descriptors are not always applicable or appropriate for people with certain health conditions. This is particularly the case for applicants with mental health conditions. A combination of how assessors approach the assessment and how descriptors are framed, results in many claimants reflecting to us that both nuance and the complex realities of their day to day does not come through in the language of the form, let alone at assessment. 
  2. What advisers have reflected back is that the language of the descriptors is imperfect and clumsy. It fails to capture the lived reality of claimants with mental health difficulties. They may be able to physically manage but the descriptors as currently framed do not offer a framework of language for claimants to articulate their difficulties. The insistence on ‘a typical day’ means certain clients are simply not able to express themselves in a comprehensive way because things are so chaotic for the client.
  3. Similarly, the emphasis on aids and adaptations in the form is a very idealistic notion. Our experience is that many clients struggle at a number of ends to get the help that they need. Some clients simply ‘get on’ with things and are reticent to seek formalised help. At another end, clients have problems accessing medical and social care support. They are confronted with waiting times or a lack of local specialist support. The language of aids, prompts and supervision often throws clients off. For them it is a question of restriction and having to cope. It is frequently therefore part of our role to draw out from claimants, anecdotes of having to support themselves on the sink or curtail the types of food that they prepare in order to manage.

Recommendations

  1. Our recommendation therefore is that the guidance to the questions on the form needs improvement. In many cases it lacks sufficient detail to assist applicants to complete their own forms to a reasonable standard. We wonder whether a more step by step and formulaic approach may help clients capture the necessary details.

7. Appeals data shows that, for some health-related benefits, up to 76% of tribunals find in favour of the claimant. Why is that?

  1. What could DWP change earlier in the process to ensure that fewer cases go to appeal?
  1. Our day to day experience of appeals, assessments and tribunals shows us that the issue is with the deficiency of current assessments rather than anything particular about tribunals. It would be a mistake to suggest that tribunals are simply right due to being more knowledgeable. There is no magic as to time, place or occasion at the tribunal.
  2. Ostensibly, assessors are all some form of professional in their own discipline. They are also allegedly trained disability assessors as well. Therefore, we do not think it is a matter of knowledge or skill.
  3. We also reject the suggestion that it is additional evidence that it provided to the tribunal. This is beyond disingenuous. The additional evidence at tribunal is all too frequently, evidence that could have been obtained at the original assessment had appropriate questioning and exploration taken place.
  4. The main determinant is that instead the Tribunal operates from the starting point of believing the client. It seeks to and wants to hear from them in detail about the problems they have. It is willing to spend time listening and probing. The tribunal asks exploratory and open questions. It seeks to gain a full understanding and explanation of the client’s circumstances. Discrepancies and oddities are flagged and examined.  Above all, the tribunal is curious and inquisitorial.
  5. Tribunals may change their opinion and disbelieve the claimant but that will be based on what the client tells them and what the evidence says. Not simply because an ingrained disbelief of clients.
  6. We have the prevailing sense of a hostile environment, particularly to those claimants with mental health difficulties. A broad conclusion is that if a claimant fits neatly into preconceived notions of impairment and disability they will have an easier time. Conversely, it is those clients that are untypical or have mental health difficulties that sadly it feels that they must wait until Tribunal until they are finally listened to.

Recommendations

  1. A root and branch review of attitudes, training and guidance needs adopting to address the underlying cultural problem that leads to the current situation. Assessors and Decision Makers need to be more willing to believe claimants, to be curious, and to stop drawing negative inferences based on level of medication or involvement of secondary services without putting it to the claimant first.
  2. We think that time limits need to be reviewed and extended. In those cases where relevant, it can take more than one month for medical professionals to provide the evidence to the applicant.

12. DWP believes that applications for some benefits dropped sharply at the start of the pandemic because claimants weren’t able to access support (for example, from third sector organisations) to complete their applications. What are the implications of this for how the Department ensures people are able to access health-related benefits consistently? A) How can the Department best help the third sector to support claimants in their applications?

  1. The Law Centre was able to shift to providing advice via email or over the phone during the pandemic. Despite this, a number of clients disengaged as they found it difficult to receive advice by means other than face to face. This was the case not only for the Law Centre but also for partner organisations that often refer issues to the centre.
  2. Applying for disability and ill health benefits are significant imposition for claimants. It is both onerous in its practicalities but also at an emotional level. This is not least in the context of a person who is not well. The test being one of function means that people need support and assistance capturing and articulating their lived reality. This is in addition to gathering medical evidence and all the problems that it entails.
  3. As such, we think that the above reflects an ongoing need for face to face advice provision but also the need for appropriate signposting by the DWP to advice organisations.
  4. The inability for third sector organisations to speak with the DWP in a timely manner is an additional problem. It means that clients are either: a) having to phone and wait to get through to request extensions b) limited face to face appointment slots are having to be spent waiting on hold which is profligate.
  5. We also think that the drop indicates a serious issue with the current form and guidance; namely that claimants are not confident nor able to manage it themselves.

Recommendations

  1. We think the DWP should explore options around advocacy for those that need it. Furthermore, that applicants should be signposted to independent benefits advice as a matter of course.
  2. We recommend in the strongest possible terms that thought is given to an adviceline for third sector organisations. That thought is given to a Digital portal to upload evidence for claimants.

14. What could the Department to do to shorten waits for health-related benefit assessments—especially for ESA/UC?

  1. The Department is in a difficult position. Claims need to be considered and resolved in a timely manner so that claimants can access the support they need in a timely manner.
  2. With that said, the cost in time and labour of correcting incorrect decisions will always undermine corner cutting. They do not expedite the process. It is particular point of pain when tribunals adjourn for the client’s medical records when these could have been obtained many months ago.
  3. On the whole, there is a perversity in subjecting the applicant to tight time limits, offloading the burden of evidence gathering onto the vulnerable applicant and then making a decision based on the inevitable result. Time limits on the applicant leads to poor claims and lacking supporting evidence; all of which needs to be corrected via more costly and resource intensive processes. This is compounded by the Department itself not being similarly constrained and at liberty to take months.

Recommendations

  1. Therefore, while the DWP has to engage in a balancing act: our view is that the emphasis should be on increased accuracy, supporting claimants throughout the process and resolving particular points of tension. This would entail the Department looking to more actively gather relevant information as and when it can.
  2. Further to this, we also think the Mandatory Reconsideration stage is an unnecessary component of the process. It rarely serves to clarify the issues in dispute and usually is an exercise in repeating the original decision. Claimants can be misled about their appeal rights due to the MR. In some cases, additional evidence may be gathered. In many others, however, the deciding factor will simply be the difference in culture and approach at tribunal. The main fringe benefit is that it allows additional time for claimants to either seek advice or gather additional evidence. Yet this would be better address by appropriately signposting support, offering additional help to claimants and increasing the time limits for applications.

 

July 2022


[1] https://www.ukcensusdata.com/liverpool-e08000012

[2] https://www.gov.uk/government/statistics/tribunal-statistics-quarterly-october-to-december-2021