PEA0217 - Evidence on PIP and ESA assessments

Written evidence from Greater Manchester Law Centre (PEA0217)

Is the Mandatory Reconsideration (MR) process working well for claimants of ESA and/or PIP?

Evidence of the Views of Claimants and Advice Workers

“Mandatory Reconsideration? It’s supposed to make the system fair, but it’s simply not true.

“They don’t review the medical evidence. There is no investigation on whether it is accurate or not. They don’t go against what the physio or nurse or whoever said in the first place. That would make both of them look unprofessional. How bad would it look if they were to point out at this stage that the ESA or PIP decision is wrong? So it’s not going to happen. It shouldn’t be like this. My whole life being decided in 40 minutes by a physio who knows nothing about my mental health.

“Because after that no-one wants to admit they are wrong.” [Claimant]

Summary:

All Advisers report an overwhelmingly high rate of wrong decisions by the DWP, with no meaningful correction by the Mandatory Reconsideration (MR) process. It is widely perceived that there is an 80% target for the DWP officers – that is, that they aim not to revise initial decisions at MR. This must be the wrong approach. Conversely, it is vital to ensure independent, face-to-face, accessible legal advice – and advocacy – for Claimants. “Without an advocate they [the DWP] just walk all over you.”

Those with mental health difficulties are most likely to be disadvantaged by the assessment; it seems that a significant proportion of assessors focus disproportionately on physical capabilities even when it is made clear that the issues are mental. It is doubtful that any assessment can be applied “universally”, as if one model can fit all the varying conditions.

All Claimants who submitted their own views for the purpose of this Submission reported feelings of dissatisfaction and/or stress, especially at the length of the whole process, often without financial support – and the way they were made to feel bad about themselves, an important point for people who are often already “vulnerable”. Within this process, Mandatory Reconsideration was seen as merely one more unsatisfactory hurdle for people to overcome.

It is felt that the DWP in the majority of cases simply “rubber stamp” the earlier refusal.

GMLC is committed to ensuring that claimants are included in both consultation and decision making about our own provision of legal advice services and we will be feeding back this Submission and any outcomes of the Select Committee, as appropriate.

We would recommend that the DWP find ways to listen to, and involve, claimants likewise.

It has also been suggested that the DWP operation of the benefit system be “devolved” (e.g. to the new county-wide public authorities, such as Merseyside and GM “city-regions”); whether this would be beneficial or not to claimants, it is clear that the proposal arises from deep antipathy to current levels of hardship arising from ESA/PIP and the very real prospect of much worse to come (from the misnamed “Universal Credit” or “universal catastrophe”).

We would invite the Select Committee to consider devolution to the regional public sector.

Greater Manchester Law Centre

The newly formed Greater Manchester Law Centre gives legal advice and representation to those in need in this area, the equally newly formed “Greater Manchester Combined Authority”.

In particular, GMLC offers specialist legal support in welfare rights. Our Supervising Solicitor manages a team of highly trained advisers (paid and volunteer), who work alongside law students representing claimants at appeals against DWP refusals (in ESA and PIP, and now UC). Having opened our doors last August (2016) we have assisted 367 people in total – including 232 appeals, 50 of which have been heard at Tribunal, with only 5 unsuccessful.

When the Select Committee called for evidence, the GMLC Management Committee decided to ask Advisers for their own examples of the working of the system, in particular of MR, in order to assess whether we should make a Submission of our own. We asked 10 other organisations with whom we work if they would be willing to provide the same. We particularly wanted to see if, between us, we could gather the views of service-users (that is, claimants themselves), who would be willing and able to make their opinions known for the purposes of this Submission.

Although the timescale was short for carrying this out, we received responses in writing from 6 Advisers and one organisation (Breakthrough UK – Manchester disabled people’s organisation who are making their own submission, based on discussion with a further 11 disabled people) and variously from 12 individual Claimants (5 of whom met together for an afternoon discussion, with 4 case workers from other agencies; while others provided written comments individually). All those quoted were happy for us to do so (albeit anonymously). The result of this process will itself be useful for our own future involvement of “service users”.

Evidence

It has been immediately apparent, to all our advisers, right from the start, not only that both the initial decisions and reconsiderations by the DWP are wrong – causing anxiety as well as tangible financial hardship – but also that the appeal success rate shows just how wrong they are.

It is equally clearly felt by claimants that going through protracted appeals processes is not only time-consuming and psychologically (and materially) damaging, but also that it may well cost the state more than if initial decisions resulted in benefit payments– as they should do, given the DWP failure rate at appeals. There is a very strong perception that the DWP “just doesn’t care”.

Reports from Advisers

Advisers reported the following arising from those who they had advised, during 2017. It is emphasised that these are not untypical – indeed, they are very representative of the accounts and histories of claims and assessments. The fact that in almost all cases the initial decisions are maintained by MRs and then overturned by appeals in front of an independent Tribunal runs right through this evidence – as does the length of time, and resulting hardship, that people have to endure while waiting for this.

“Assessments provide only a snapshot of the claimant’s situation on the day they are assessed. The health professional does not always appear to have appropriate qualifications to assess the claimant before them, especially with regard to mental health difficulties. The decision makers rarely have the benefit of medical records when making a decision. Many claimants have been left for many months without the benefit they are entitled to because a decision is based solely on an assessment report. Decisions are often overturned at appeal because the tribunal has the benefit of medical records which the DWP could have obtained prior to the assessment.”

“I have seen, not infrequently, a designated Assessor who is a Physiotherapist assesses a Claimant with complex mental health issues.”

“In a lot of cases the assessments are simply factually wrong. The contracted Assessors type up their comments when questioning a claimant – almost every single client I have seen since starting at the LC has reported this to me. It is blatantly clear that the Assessor is under time pressure, that they are working from a standard template and do not delete or mark as N/A information on the template that clearly does not apply to the particular claimant. This leads to factual inaccuracies which in turn leads to the DWP making a negative decision –almost a rubber stamping exercise, so it feels to the claimant – to refuse awards. Assessors, as frequently reported to me, are in a rush and do not let people explain in detail how their condition affects them – – as demanded by the relevant ESA and PIP statute – leading to factually incorrect decision making. ….

“For people whose first language is not English, Assessors do not work with professionally trained/independent interpreters preferring to rely on family members of friends which is bad practice in that some of the information given maybe selective or not at all if deemed to be culturally or religiously inappropriate by the family member; Assessors are ignoring medical letters from GP’s and other health care professionals submitted to DWP in Requests for MR which clearly state that the person is either unable to work due to ‘x’ condition or should not be working at all or is in severe pain all the time so medication is ineffective.”

“The DWP seem in the majority of cases simply to rubber stamp the earlier decision to refuse an award of ESA/PIP; they are, by law, meant to revise/ ‘reconsider’ their negative decision based on the further information provided (which will in most cases address the decision to refuse the award) and consider further medical evidence if submitted by the Claimant. ….. The MR process is simply an administrative hurdle to stop Claimants appealing and not a proactive ‘reconsideration’ process which it is supposed to be (the original idea being to reduce the number of appeals, hence the requirement to ‘reconsider’).”

Advisers gave many specific examples of this. Space permits only the briefest of details:

a) Claimant A was in receipt of enhanced rate PIP (both components) but was awarded zero points at his ESA WCA and found fit for work. He had severe mental health and mobility problems. By the time of his appeal, he was in significant council tax arrears. He was also unable to feed his two children adequately.

He requested MR before coming to the Law Centre and the decision was not revised.

After receiving his appeal paperwork, the DWP decided to revise their decision, despite no additional evidence being provided. He was then awarded in excess of 40 points and placed in the support group. By this time, he owed money to his friends and family.

b) Claimant B in August 2017 was recovering from illicit drug dependency and suffered from PTSD having been injured in a criminal assault on him some years ago. He could not leave the house by himself. The DWP had been provided with a letter from his psychiatrist before their decision, stating that being found fit for work or work related activity would pose a substantial risk to his health. He was nevertheless found fit for work.

MR did not result in the decision being revised.

After a long and stressful wait, which further adversely affected his mental health, the Tribunal, very quickly set aside the DWP’s decision, placing him in the ESA support group.

c) Claimant C was an amputee and had lost a leg up to his thigh. He was found fit for work related activity, despite medical evidence that he could not mobilise for 50 metres, which should have entitled him to being placed in the ESA support group.

After a brief hearing, the Tribunal set aside the decision, placing him in the support group.

d) Claimant D had suffered with severe and enduring bipolar affective disorder for many years. He was assessed by a nurse with no specific mental health qualifications and awarded no points for PIP (assessment November 2016).

This was subsequently overturned by a tribunal nearly a year later, on 12th September 2017. The Tribunal had his medical records and assessments by mental health professionals. If the DWP had obtained these records at the outset, they should have decided differently.

e) Claimant E fell foul of the lack of trained interpreters. Evidence for his assessment was taken from his wife, who speaks fluent English. The assessor found that he engaged well and had no communication difficulties, despite him not answering any of the questions himself. Evidence from his own medical professionals showed that his communication is very poor.

PIP was awarded on this ground by a tribunal who had the benefit of taking evidence directly off the claimant with a trained interpreter (PIP report dated December 2016, the Tribunal hearing again nearly a year later on 5th October 2017.

Claimants’ Own Words

Individual Claimants were also invited to share some of their own feelings more directly, whether through their advisers in other agencies, or in their own words (including via email), or through a full group discussion arranged on behalf of GMLC by a volunteer who also advises at a local voluntary organisation. The following comments are a [severely truncated] summary of responses received – in a short timescale without any preliminary consultation to “settle” people beforehand. Their willingness to speak in this way about very personal concerns, to people they were willing to trust through their own advisers, is itself telling.

Very common themes are that the assessment process is flawed and MR is a “waste of time”. It was “just another hurdle”. Claimants feel that it would be preferable to take the evidence of GPs who have known them for longer, and that a standard model for assessment cannot adequately address everyone’s different conditions. To paraphrase, one (universal?) size does not fit all.

Additional emphasis was placed on the difficulties for those with mental health problems (“You can’t see my pain; I haven’t got a Red and Green light on my head to show I’m in pain.”) and how no-one wants to talk about “the bad stuff” or to tell a complete stranger how unable they are to do something (“The whole approach puts pressure on you to feel shit about yourself, to feel shit about everything.”).

The general suspicion is that this is all about saving money – an “insurance” approach to assessment where the money saved by failing people is offset against the cost of losing at appeal – yet it does not necessarily work, as the latter will cost the Treasury more overall (financially), including on apparently “unlimited legal costs available to them, but not to us [claimants]... “ and the human cost is “the enormous hurt and harm which an unjust, inhumane system is imposing on thousands of its citizens” (likely to get much much worse with Universal Credit).

On Mandatory Reconsideration the feelings expressed were exceptionally strong:

a) “It’s supposed to make the system fair, but it’s simply not true. You’re not being assessed on a level playing field. DWP or Atos? It’s still under the same umbrella. They don’t review the medical evidence. All they do is take a look at the report of their initial assessment and go along with it. There is no investigation on whether it is accurate or not. They don’t go against what the physio or nurse or whoever said in the first place. That would make both of them look unprofessional. How bad would it look if they were to point out at this stage that the ESA or PIP decision is wrong? So it’s not going to happen. It shouldn’t be like this. My whole life being decided in 40 minutes by a physio who knows nothing about my mental health. Because after that no-one wants to admit they are wrong.”

b) “MR was a total waste of time. It simply repeated everything that was incorrect in the initial assessment. It insisted that my bipolar condition was under control and noted how I could maintain eye contact during the interview. I accept that the interview might have been one of my better days when I was feeling confident, perhaps too confident. But they had other evidence from my GP about my regular mood swings, which they chose to ignore. About how when I’m ill I can’t use the cooker without the risk of blowing up the kitchen. The fact that I was polite in the conversation shouldn’t be used against me – not only to negate my illness but to create a totally false impression of how I get by from day to day.”

c) “You simply can’t win. I applied for ESA and was asked to come into the Job Centre. If I don’t go to the job centre, I get sanctioned. If I do turn up, they say that I am fit for work. I told them all about my medical condition and sent them all the evidence they asked for but they didn’t want to know. MR didn’t change anything so I had to appeal. And my case dragged on and on for 9 months and finally ended up in a tribunal. The DWP didn’t turn up at the court to challenge my evidence there so I won my case. The judge awarded me full back payments. But I still lost. I’d lost my home since then and became homeless for almost a year because I had no money coming in at all in that time. Where’s the justice in that?”

d) “I’m not fit for work. I’ve got mental health and 6 or 7 long-term medical problems. I’ve got spondylitis, sacroilitis, fibromyalgia, and an aneurysm on the right side of the brain. Some of them are difficult to diagnose. I am always in pain. It’s always there but sometimes it comes on really, really bad. When it’s excruciating, I can’t do nothing. But when you go for an assessment they are not interested. They don’t want to know about your illness. They don’t ask you ‘Mister, how are you feeling?’ They are not interested in your problems. They have all these questions set down which bear little relevance to how I get on from day-to-day. And MR? It’s a joke. It’s a waste of time. When they refuse you first time, they don’t check whether the assessment is true or not. They’re just going through the motions. Maybe they turn over 1 in a 100 cases. But they have no intent to change the vast majority. That’s because they simply do not want to pay people ESA if they can get away with it.”

e) “It’s supposed to be a medical assessment but the questions they ask are functional. There is no assessment of your medical condition. MR doesn’t pick up on medical evidence. It hides behind the claim that it is about your health but it simply isn’t. It’s based on an insurance model about how not to pay out money if at all possible. The whole model is invalid. It’s based on false premises, which they never tell you about. Who designed the criteria in the first place?”

Assessments generally were problematic. People did not feel “listened to” (as Breakthrough).

f) “… You could just see the top of the person’s head, typing away. They were not picking up how they were making the person who they were supposed to be listening to more anxious and stressed out. ”

g) “If someone has a medical problem then why not do a proper medical assessment? ….. the assessment doesn’t properly evaluate my type of disability. …The categories are too broad. They don’t fit. It’s hard to describe everything about your condition on their forms. It’s not black and white … .”

h) “I know lots of people who don’t go to the assessment because it’s too strenuous or too far. I live in Rochdale so why not send me to the assessment centre in Rochdale. But they don’t. They sent me to Manchester because that’s what suits them best. They make people travel miles away and if they don’t make it then ‘that’s tough’. I’ve known people who been sent to Bradford or Blackburn – miles away. How the hell do they expect you to get there with poor mobility and no car...?”

i) “The system is utterly brutal. My doctor has written to the DWP to tell them that I am not fit for work. He knows all of my problems – my heart condition, my mental health problems, everything. But the DWP just overrides the sick note...”

j) “I went on a Peer Mentors course in Salford which was accredited by the Open University. It really boosted my confidence but I had to stop doing it half-way through due to the pressure of it all – going to appeal and all that. Normally I can just about manage and get by but the whole system was dragging me down. I had a big dip in my mood. If it wasn’t for my dog I wouldn’t be here now.”

k) “Many disabled people are not asking for the things they need because everything is linked – care at home, care at work, the whole package. So if a disabled person is in receipt of PIP they are in fear of asking for other assistance. … .”

Finally there was the whole question of how the process makes people feel. Given that many claimants are by definition “vulnerable” – materially, financially, in terms of health (physical and/or mental) – this cannot be ignored by decision-makers.

l) “The whole approach puts pressure on you to feel shit about yourself, to feel shit about everything. It’s very difficult to get past that. When you’re talking to a total stranger, it’s embarrassing to talk about all your problems. That’s human nature. You want to feel good about yourself and not talk about the bad stuff. … Why should we have to be humiliated when we try to explain what we’re capable of?”

m) “ Let’s be honest, it’s all about saving money. We are demonizing people on benefits so that they are not treated as persons but as economic units – and expendable ones at that. This is likely to get worse with the roll out of Universal Credit. The result is that more and more people are getting ill or depressed, or opting out of the welfare system altogether, even committing suicide. But it isn’t even saving the sums, which the Treasury wants. Every decision that goes to appeal costs extra money in terms of administration and legal costs. And the biggest cost of all is the enormous hurt and harm which an unjust, inhumane system is imposing on thousands of its citizens.”

n) [Personal email to Adviser] “My experience of DLA to PIP changeover has been very stressful. …The actual application process was the same as a DLA application to start with, then I had to go for an assessment, which wasn’t compulsory before – you could be picked at random. The assessment was not carried out by an expert in a field relevant to my disability. The questions during the assessment were pre-defined, therefore the purpose of assessment was not to find out how your disability affected you, but scored on information that for some questions was not applicable. After the assessment the DWP made a decision – I didn’t qualify. So I made a mandatory reconsideration, which again, the DWP decided I did not qualify. I then had to put in an application for appeal. A hearing date was scheduled, this was excessively stressful – I had never attended a tribunal before, the environment was most intimidating. I’m very glad I had your support and guidance. The tribunal decided I met the motability standard rate... Awful process start to finish.”

o) “2 months ago I received a annual PIP assessment form, even though my award is not due to expire for 1 year – yet another long form to ask if anything had changed. With an exceptionally short time to return. My thoughts are that this is a ‘back-door’ way to remove your benefit; the idea is that you’re not able to return on time, and/or they don’t upload it onto system on time and therefore your benefit gets sanctioned and you have to reapply (presumably form scratch).”

Conclusion

One of the reasons for high success rates at appeal could be that the Tribunal is completely independent of the government, unlike Atos, Maximus and Capita who have a contractual relationship with the DWP. In comparison the Social Security Tribunals are there to make decisions in the interests of justice.

The DWP should actually/proactively engage with the request for reconsideration rather than simply repeat what was in the negative decision. If a review maintains the decision, it should still actually engage with the reasons/further evidence provided by Claimants.

Claimants going through the process feel it is merely a battle trying to defeat them in their claims – with an advocate present they feel like they have an ally, that their voice is more likely not to be ignored. Some claimants have to face overcoming their lack of understanding due to limited education (facing complex forms), language, or the process not being transparent. The importance of public funding for accessible, face-to-face, independent advocacy should be self-evident.

GMLC emphasises the right to receive benefits, the right to fair and proper assessment processes, and the right to appeal.

GMLC concludes that the current PIP and ESA assessments deny these rights, firstly because of a convoluted and obstructive assessment process, and secondly because of barriers to the appeal process. In particular, the Mandatory Reconsideration process is not fit for purpose, proving to be an unnecessary hurdle for claimants seeking justice.

In one Claimant’s own words:

“All they do is take a look at the report of the initial assessment and go along with it.”

November 2017