Written evidence from Derbyshire County Council (HAB0061)

 

Derbyshire County Council provides a Welfare Rights Service delivering benefits advice to the population of Derbyshire.  We are responding with evidence from the work we do across the service with the general population, adult care service users, people living with cancer and as a service that delivers representation at tribunal.

Executive Summary

The experience of advisers, as set out in the following response and amplified by the case examples included, can be summarised as follows:

Responding to the questions posed by the committee in turn:

Q1.              How could DWP improve the quality of assessments for health-related benefits?
 

1.1.   Waive the Health Care Practitioner assessment in more cases. 
It is open to the Department for Work and Pensions (DWP) decision maker to decide a case without the need for a further face to face or telephone assessment where there is sufficient evidence available.  This option should be considered at the outset in all cases to save time and resources.  Claimants are sent for further assessment where this will add little to the information already available putting vulnerable claimants through unnecessary stress and delay.

Case Example 1 – need for assessment “on the papers”

The claimant suffered a stroke, sustained a brain injury, and became paralysed after being diagnosed with Covid 19. He applied for Employment and Support Allowance (ESA) in 2020.

In February 2021 the Welfare Rights Service sent a GP letter and consultant letter confirming his condition to DWP. The evidence made it clear that the claimant had bilateral paralysis and ‘significant weakness in the lower limbs’ and could not weight-bear or walk; he was also doubly incontinent.

This was quite sufficient to indicate the ESA Support Group was appropriate.

By April 2021 he still hadn't had his Work Capability Assessment (WCA).

Although the service raised the matter with the claimant’s local MP, it took until August 2021 for his WCA to take place: he was placed in the Support Group.

1.2.   The accuracy of reports needs to be significantly improved.
Poor quality and inaccurate medical reports, leading to inaccurate decisions, have a significant detrimental impact on the mental and financial wellbeing of people coping with illness and disability.
 

Case Example 2 – Inaccurate report – “box ticking”

The claimant was awarded only ‘Limited Capability for Work’ on Universal Credit, despite clear evidence of inability to walk, mental health problems etc.

The claimant sought a decision of Limited Capability for Work-Related Activity (LCWRA).

The claimant argued that the healthcare report was inaccurate, “just ticking boxes”, with the assessor inserting statements that the claimant stated he did not make (including about going for walks and being able to go to new places alone), and not observing that the claimant was physically supported by his wife into and out of the assessment centre. The claimant had also on a separate occasion been seen to struggle badly to get into the Jobcentre by his Work Coach, who accordingly changed his appointments to telephone-only, but DWP did not include this evidence in its eventual appeal submission.

The decision was confirmed at Mandatory Reconsideration (MR) stage. The case reached appeal stage, but the claimant died before a hearing could be completed.

Universal Credit refused to recognise the claimant’s widow as appointee for a posthumous appeal, delaying matters and causing distress. She was told his case was closed and nothing could be done; a request to speak to a manager was refused. A formal complaint was made but was not responded to.

The intervention of the local MP was needed to resolve the problem.

It would have been more appropriate for DWP to revise the decision immediately after the death, rather than fight the case and block the appointeeship.

LCWRA was awarded at appeal. The hearing took place 13 months after the claimant’s death.

 

 

 

Case Example 3 – decision based on report that was ‘95% incorrect’

Client is a PIP claimant in her mid-40s. Her original decision which awarded 0 points, was increased at MR (but only to 6 points) and has proceeded to appeal.  This appeal is yet to be heard.

The claimant states that the assessment report ‘is about 95% incorrect’. Everything told to the assessor ‘has been changed’. Examples given are:

-        the report states she can go for a walk, which she does not,

-        that she can crochet and make cards, which she has never done in her life,

-        that she shops at a large supermarket ‘once a week’ when she does not, and

-        that she can use a shower over the bath, which does not exist.

Unusually, the DWP decision maker disregarded the assessor’s recommendations for five of the descriptors, but still relied on other features of the report despite its apparent lack of credibility.

 

Case Example 4– PIP and learning difficulties – poor HCP report

 

The claimant is a person with learning difficulties who needs an appointee for his benefits and has always been looked after by members of his family. He is exempt (from 1.4.20) from paying Council Tax owing to severe mental impairment.

 

He was in receipt of Disability Living Allowance (at the middle rate for personal care and the low rate for mobility) until 31.03.2019, when he was migrated to PIP.

 

A decision was made on 28.02.2019 that he scored 0 points and therefore not entitled to PIP.  An appeal was never made because the appointee was unaware of this right.

 

A new claim was made 30.01.2020. The claim was refused in a decision made 20.04.2020. 0 points were awarded and comments such as ‘engaged well’ and ‘good insight’ were made on the HCP report, along with ‘manages his finances well’, ‘good intellect’.

 

The decision maker followed the HCP completely.

 

At appeal, the Tribunal awarded enhanced daily living and standard mobility – indefinite award.

Points awarded for:

Preparing food: (4), Managing Therapy (1), Washing/Bathing (2), Dressing/Undressing (2), Reading etc (4), Engaging with others (4), Making Budgeting Decisions (4). Planning and following Journeys (10)

It was remarked ‘off the record’ that the assessment was the worst the Tribunal had ever seen, and the claimant “should not have had to go through this”.

It should also be noted that this claimant has been awarded only ‘Limited Capability for Work’ on Universal Credit, and it is our advice that this decision is clearly incorrect, but owing to his experience of the system he does not wish to challenge it.

1.3.   End the process by which claimants must deal with two agencies (the DWP and the HCP report provider.)
This leads to confusion and claimants are often passed between the two agencies when chasing forms, decisions, or trying to expedite their claims - being told that the other agency needs to act or make a decision.

Case Example 5 – problems obtaining UC50 form and delays in assessments

The claimant is a single and in his 50s with both physical and mental health problems.

Benefit was stopped for alleged non-return of the UC50. The claimant won a ‘good cause’ appeal in July 2021, the tribunal finding that the form had been completed by the claimant and then either lost in the post or by DWP.

The claimant requested a new UC50 in July 2021.

In August his Work Coach said they knew nothing of the tribunal decision.

The claimant has since made several requests for a new form/the assessment programme to proceed. He complains that UC ‘ignore’ all such requests made via the Journal.

This service completed a UC50 with the claimant and sent it direct to the Centre for Health and Disability Assessments (CHDA), and the claimant raised a formal complaint about the lack of response – there has been no reply to this complaint either.

On 1.10.21 a benefits adviser contacted CHDA who acknowledged receipt of the UC50 form but said there was no ‘live referral’ from DWP. CHDA said they would not act on the form until contacted by DWP.

On 11.10.21 the claimant called the assessment team and was told an assessment would go ahead – no UC50 has yet been received and no date for future progression.

1.4.   Over-reliance on HCP report even when fuller evidence is readily available
Decision makers should consider all the evidence and not rely solely on the Health Care Practitioner’s (HCA) report, and take all information into account including the fact that the claimant has said that the report is inaccurate
 

Case Example 6 – over-reliance on HCP report

The claimants was a single man aged 22.  His PIP was refused in October 2020, with 2 points only for engaging with others.

A support worker said (quoted in MR letter):

[Claimant] told us he has mental health issues, borderline personality disorder, night time insomnia, ADHD, anger issues, depression, anxiety, explosive anger disorder... He lost his PIP in 2020 and did not respond or appeal because he does not have the capacity to do it though he did try to fill the form in. The time we have spent with [him] so far demonstrates a complete lack of understanding of money and budgeting, a complete lack of capacity to prepare or cook his own food…[no understanding of] the need for cleaning or being clean…and presents in a way that we believe hints at undiagnosed Autism…clearly at risk of homelessness…potentially suicidal.’

Having then seen the HCP report, we can see that in spite of the limitations of a telephone interview it demonstrated evidence of:

‘Anything’ triggering anger in [Claimant] including minor irritations, that he can become physically aggressive ‘two to three times a week’, ‘he is verbally abusive to people most days’, that he is ‘unaware of what is happening’ when he is like this and needs time to return to a calmer state. [Claimant] says he has 5 ‘bad’ days out of 7.

 

Suicidal thoughts, a suicide attempt, fear of going outside, self-harm, and not engaging with others are clearly stated. It is also clear that ‘triggers’ to anger and possible violent behaviour can happen at any time.’

 

Evidence on dressing/undressing, budgeting and planning and following journeys was also drawn out by advisers from the HCP report, but on the HCP’s recommendation, the DM awarded only 2 points.

 

The Mandatory Reconsideration increased ‘engaging with others’ to 4 points but nothing else, and PIP was still refused.

 

An appeal was lodged in July 2021: it was lapsed a month later, with the Enhanced Rate of both Daily Living (15 points) and Mobility (12 points) awarded.

 

It is difficult to account for why an appeal had to be lodged in this case, given the facts.
 

1.5.   Improve the process of issuing the ESA50/UC50 form to claimants to ensure this is done promptly whenever required or requested. 
The fact that the claimant does not need to provide a fit note to make a successful claim to UC but needs one to trigger a work capability assessment causes many to go for long periods without their correct level of benefit and a formal decision on conditionality. Even where a fit note is submitted the system relies on the work coach making a referral for the UC50 to be issued causing long delays in some cases


In addition to the example in section 1.3 above,

Case example 7 – problems obtaining UC50/ WCA

A UC claim was completed 2019 - the claimant did not hand in ‘fit notes’ and was subject to full conditionality in spite of problems with substance abuse. With support from Adult Social Care, the claimant began to send in ‘fit notes’ in April 2021. By August 2021 the UC50 had not been issued.

When the form was issued, the claimant struggled to complete it and needed help; owing to the nature of her illness she needed help from someone with whom she had a good rapport. An extension was requested via the online journal, but there was no reply.  The form was finally completed in October 2021.

 

Case example 8 – WCA not begun for cancer patient

The claimant, who is a cancer patient, has been submitting fit notes since September 2020 – a UC50 has still not issued over a year later.

 

Case Example 9 – very slow progress on ESA review

The claimant has been on ESA for two years – in the Work-Related Activity Group with a Severe Disability Premium (SDP). Evidence indicated that Support Group was more appropriate owing to mental health problems causing inability to cope with people, including daily violent outbursts.
The claimant stated that he had been told by ESA that the SDP was ‘all’ he could claim.

A review of ESA was requested in writing in October 2020. The letter specified the appropriate ESA descriptors.

The review was still incomplete in July 2021 with the DWP still not having sent out the form. The case has been raised with the claimant’s MP and remains outstanding.

A lack of issue of UC50 forms is also occurring at the beginning of UC claims for people with learning disabilities who rightly do not tick the box indicating that they are “sick or disabled” and are therefore not prompted to submit fit notes.

 

Q1a: Have you seen any specific improvements in the process since the committee last reported on PIP and ESA assessments in 2018

Unfortunately, we have not, and the examples cited above are all of cases since 2018.

 

Q3.  Do the descriptors for PIP accurately assess functional impairment? If not, how should they be changed?

It is welcomed that PIP recognises for the need for aids/adaptations (the same evidence would have been used to reduce a DLA award) but too often PIP points are awarded at the lowest level, where there is sufficient evidence of other needs.

Evidence is often drawn out under one descriptor that would plainly apply to another, and yet is not considered under that heading, or is raised and then dismissed.

Mental health is still poorly reflected by PIP and MH evidence is often set aside with the use of cut-and-paste phrases in the HCP report such as ‘was not trembling’ or ‘had good rapport’. Claimants who report having been in tears at their assessment are written up as having ‘coped well’.

The same applies to Learning Disabilities and to conditions such as Autism, evidence for which is frequently dismissed and an ‘optimistic’ view of the claimant’s capabilities is taken from the snapshot view of the HCP.

The number of changes DWP has been compelled to make to the PIP rules demonstrates that the rules were not sufficiently thought through and remain inappropriate in many situations.

(See case example 4 above for details of an in-effective assessment of the difficulties experienced by a person with learning disabilities.)
 

Q4.  Do the descriptors for ESA accurately assess claimants’ ability to work? If not, how should they be changed?

The ESA descriptors do not relate to any form of work.  They make no reference to any existing work the claimant may have, which confuses those who have a job which has been held open for them for when they recover from illness.

A link to ‘real’ work and the existing labour market may prevent claimants being told they are ‘fit for work’ in a generalised manner and then sent into a labour market in which they are at an immediate disadvantage.
 

Q5.  DLA (for children under the age of 16) and Attendance Allowance usually use paper-based rather than face-to-face assessments. How well is this working?

During 2020 Derbyshire Welfare Rights service opened 2866 Attendance Allowance (AA), 348 Disability Living Allowance and 1572 Personal Independence Payment cases where we advised on or assisted with claims or revision requests.  In the same time period, we appealed against 11 AA, 30 DLA and 539 PIP decisions. Although we advise on and assist with many more AA claims the majority of our appeals are against PIP decisions. 

a. Before PIP replaced DLA for adults, DLA was also assessed using a paper-based system. What were the benefits and drawbacks of this approach?

The DLA system allowed claimants to describe their condition and its effect upon their lives and allowed decisions to be made which reflected the complexity of claimants’ lives.

The benefits of this system are that it put the claimant and those supporting them at the centre of the decision making process as the person best able to explain the problems they have and the help they need.

One drawback was that this approach favoured those who were best able to express themselves in writing, in English.

With PIP, although the claimant completes a form in a similar way preference is given to the HCP report by the decision maker (see case studies above). The claimant is no longer put at the centre of the decision.

 

Q6. How practical would it be for DWP’s decision makers to rely on clinician input, without a separate assessment, to make decisions on benefit entitlement? What are the benefits and the drawbacks of such an approach?

A ‘clinician’ based system would require funding, as GPs etc have complained of the costs to them of providing evidence, and the costs should not be transferred to the claimant. As a service we also experience reluctance from GPs and health professionals to provide supporting evidence, even at appeal stage, because of the cost and administrative burden it places on them.

The burden of responsibility for seeking clinician evidence would need to be examined: many claimants are not in a position to gather and submit this evidence. It is a feature of the current ESA/UC/PIP systems that claimants think DWP will gather this evidence (as the details of GP, specialists etc. are requested in the forms).

It would also make sense for DWP to request – direct from the responsible authority or service rather than via the claimant – copies of Care Plans etc, and further evidence from those who know the claimant’s daily life.

An advantage of gaining clinician input is that claimants would not be involved in a sometimes-punitive system in which they can lose benefit for missing an assessment appointment, and where Mandatory Reconsideration/appeal is then needed, and thus even poorly made decisions stand for very long periods before being revised.

Claimants would also be spared sometimes difficult journeys to assessment centres; what happens at that centre is also sometimes used as evidence to refuse a claim (e.g. claimant seen to walk from the car park, with no consideration that this is a one-off journey on a compulsory basis).

Evidence gathered would be from people who know the claimants and the effects of their conditions. It would not be based on a one-off assessment.

 

Q7.  Appeals data shows that, for some health-related benefits, up to 76% of tribunals find in favour of the claimant. Why is that?

As a service which provides representation, we have over 85% ‘decisions in favour’ on those appeals heard. This percentage has been as high as 95% in some periods and would average at close to 90% for the last 5 years.  (For clarity, these figures do not include decisions changed during the MR stage or decisions lapsed before an appeal.)

In our experience, one significant reason for a number of appeals being awarded is the reliance by the department, to that point, solely on the assessment report.

The reluctance from the department in accepting any other medical evidence is strong. This is borne out by the approach to appeals from the department’s Presenting Officers.
Despite SW v SSWP (ESA) [2012 UKUT 76 (AAC) Upper Tribunal Judge Lane held, “1… ; the Secretary of State had sent a representative, who is required to act as a friend of the court – in other words, to see that the right answer is reached, rather than simply to argue the Secretary of State’s case…” our experience is that presenting officers do not operate to this overriding objective of the Tribunal Procedures.

Early in the first Covid-19 lockdown, Pilot Practice Directions were provided to enable Judges to make decisions on their own and in a form of triage. A significant proportion of cases were awarded where it was clear and obvious on the paperwork alone. This highlights the apparent lack of knowledge or resistance to change a decision within the DWP. Despite this practice of removing “easy wins” the award rate at appeal hearings remains high.

A significant amount of money is paid for the medical assessment contracts. Poor reports lead to poor decisions with multiple appeals being listed unnecessarily adding more cost to the public purse. This is, of course, in addition to the cost of the impact on claimants who are often forgoing a significant portion of their income during this period with detrimental impacts on their health and wellbeing. Timely decisions would be helpful. The process is long and when claimants have no money this has a significant impact.

There seems to be limited time and focus within the DWP for reflection on practice. This can be seen by the case law being set and the department still not responding effectively. A LEAP exercise[1] was required in respect to MH[2] and RJ[3] and now we see echoes of that ignorance in consideration of PIP Activity 9. Supporting DWP staff to understand legal changes and to see what is being allowed by Judges could enable better decisions in the beginning.

Q7a. What could DWP change earlier in the process to ensure that fewer cases go to appeal?

Q8.  Is there a case for combining the assessment processes for different benefits? If not, how else could the Department streamline the application processes for people claiming more than one benefit (e.g. PIP and ESA)?

However, if general practice was improved then there are some areas that could be aligned. For example:

Q9.  What are your views on the Department’s “Health Transformation Programme”? What changes would you like to see under the programme?

b. What would be the benefits and drawbacks of DWP bringing assessments “in house”, rather than contracting them to external organisations (Capita, Atos and Maximus)? In particular, would this help to increase trust in the process?

We can see significant benefits to moving to an in-house system. Claimants would have a single system to deal with, which would be less confusing for them.

At present, complaints about assessments have to be made to the provider, and claimants may have to take separate actions to:

As these matters often overlap, claimants are left wondering what action to take, and which agency to approach. An ‘in-house’ approach would simplify matters for claimants and would offer a chance of increased trust as a ‘fresh start’.

An ‘in house’ assessment has the potential to improve communications between the assessors and decision makers regarding whether further assessment was needed or there was sufficient information already available to make a decision.

Notwithstanding this generally favourable view, there remains a concern about the responsiveness of the DWP, where complaints go un-acknowledged, requests for forms are not responded to, and on-line journal entries get no response (all as evidenced in case studies above). Whatever the system in operation, unless basic communication standards can be achieved clients will remain significantly dis-advantaged.
 

Q10. What lessons should the Department learn from the way that it handled claims for health-related benefit claims during the pandemic: for example, relying to a greater extent on paper-based assessments, or using remote/telephone assessments?

a. Is there a case for making some of the changes permanent?

The existing problem of delays in assessments was inevitably made much worse by the pandemic and was exacerbated by a reluctance on the part of DWP to consider alternative approaches such as decision ‘on the papers’.

In future, arrangements for assessments should fit claimants’ needs and not the administrative convenience of DWP/CHDA.

There were frequent complaints pre-pandemic that assessments were cancelled by the providers at short notice, whereas claimants are offered very limited opportunities to change or cancel the appointments themselves even where there is good cause; refusal of home visits to those who need them; poor consideration of transport needs for those who have to attend an assessment centre - and use of that attendance as evidence ‘against’ the claimant.

During the pandemic, claimants complained of telephone assessments being cancelled at very short notice, followed by letters re-setting the appointment and reminding claimants of the consequences of ‘failure to attend’ while making no reference to the previous cancellation.

DWP/providers frequently refuse paper-based assessments even when the evidence of disability is very strong.

Telephone assessments for people with mental health problems/learning disabilities etc seem to be particularly inappropriate.

Measures are still needed to protect people with life-long, unchanging conditions from unnecessary repeat examinations. Paying more attention to evidence from GPs, support workers and those who know the claimant well would help in this aspect.

The experience of claimants during the pandemic has been of delayed assessments, often because it was decided that a face to face assessment was needed. This has often been in the face of compelling evidence of disability where a decision ‘on the papers’ was more appropriate.

Case Example 10

The claimant was in receipt of Enhanced Rate PIP for Daily Living and Mobility. An ESA Work Capability Assessment was done over the phone in September 2020, but it was decided that a face to face assessment was needed. The claimant was left without a decision; her ESA stopped after 365 days.

The intervention of the claimant’s MP was needed to obtain a new telephone assessment; this only took place in June 2021.

ESA Support Group was awarded, and over £6,000 of arrears paid.

We had many similar cases to this.

 

Q12. 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?

 

Q13. DWP recently published research on the impact of applying for PIP or ESA on claimants’ mental and physical health. What would be the best way of addressing this?

The application process could be improved for claimants by:

 

Q14. What could the Department to do to shorten waits for health-related benefit assessments—especially for ESA/UC?

 

Q14a. How effectively does the “assessment rate” for ESA cover disabled peoples’ living costs while they wait for an assessment? Is there a case for introducing an assessment rate for other health-related benefits?

The ‘assessment rate’ itself is wholly inadequate as despite any available evidence of disability it makes no concession at all to the additional constraints and costs related to illness and disability. It also discriminates on age grounds so that under-25s are worse off

In the above case example 11, the claimant had to live for two years on £343 a month (at current UC rates) less than he should have been awarded.

The time it takes for PIP to be awarded can be one of considerable financial hardship for claimants and carers as they have all the costs associated with illness/disability and no additional income. If an ‘assessment rate’ of PIP led to income being available sooner, people would be better able to manage financially whilst awaiting a full assessment.

 

Conclusions

The case examples set out in this response demonstrate the significant impact on individuals’ lives and circumstances of the shortcomings of the health benefits assessment process. Lengthy waits for assessments, over-reliance on Health Care Practitioner reports, and a lack of willingness to seek, or engage, with other sources of supporting evidence lead to too many cases being turned down for benefit, and too many cases having to go to appeal hearing.

 

November 2021


[1]https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/718724/adm16-18.pdf

[2] MH v SSWP (PIP) [2016] UKUT 531(AAC) (“MH”)

[3] CS v SSWP (PIP)[2017] UKUT 105 (AAC) (“RJ”)