Written evidence from C. Bennett (PEA0289)
I am making this submission as an individual who is particularly interested in the issues raised by this committee due to my experiences helping claimants through my employment in two charities. Unfortunately I have only just been made aware of this consultation today 9th November 2017 and there is no time for me to circulate this to my colleagues to make an organisational submission. In one job I carry out home visits to vulnerable people (including disabled people) who are under threat of eviction, and help them with benefits and debt difficulties in order to prevent their eviction. My other job is as a Supervisor of a Health and Disability project, with a different charity where the public come to get urgent help with benefit difficulties and in particular ESA and PIP applications, reconsiderations, appeals and tribunals. My submission is based on the cases I deal with through my employment and I am aware that by the nature of my work, I am mostly involved in cases that do not go smoothly and have caused difficulty for the claimant.
Assessors and assessments
I see medical reports from PIP and ESA assessments which we review as part of the appeal process when preparing submissions to benefit tribunals. The printed PIP medical report (PA4), after some initial history then has a page per points descriptor which begins with the assessor needing to tick the points scored box, and then has a large space below for comments to by typed which substantiate the score. The comments are often very short and justify the points already ticked. Whereas the ESA medical report (ESA85) goes through far more details and history for pages of it, before the decision maker score sheet appears at the end. It appears that on PIP the medical assessor is required to choose points awarded during the assessment, whereas I am not clear if this happens with an ESA medical.
I am regularly told by clients that they saw an assessor whose professional background is unrelated to their condition and that by the comments made at assessment and in the medical reports by the assessors, there appeared to be a lack of knowledge regarding the nature of the condition, its prognosis and medication.
When reading through appeal bundles from the tribunal service I regularly see obvious discrepancies in the medical assessments of both ESA and PIP. For example, in a summary at the beginning it may say that the client drives a car, but then later on say that the person has not driven for 3 years. Also the way the assessments are written with very short sentences or wording to summarise what a client has said, often lead to misunderstandings for the decision maker. An example is when we had a client who had been asked about hobbies, did they do gardening, and they mentioned they had some plants on their kitchen window which they watered. In the medical report this was simply written as ‘enjoys gardening’, and this could easily be assumed that the claimant is out in the garden digging and lifting. Another frequent comment will be ‘goes shopping’ which will then go on to state an assumption that if a claimant can go round a supermarket this would take X amount of time and therefore they can walk more than a certain distance. However in reality the ‘shopping’ the claimant referred to was a small local convenience store or corner shop which was virtually next door to their home and where they bought a pint of milk. Or the context of the shopping is often misrepresented for dismissing a claimant with mental health difficulties having problems socialising. It is often stated by an assessor that because a claimant can ‘go shopping’ they can socialise. Whereas the claimant rarely went out and if they did go to a supermarket it would be very late in the evening when few other shoppers were there. There are frequently discrepancies and assumptions made about the distance a claimant can walk. Often the assessor will write something along the line of ‘client walked 5 metres from seat to assessment room, therefore can walk 50 metres, without any other justification for this estimated walking ability. We had a case where a medical report stated the claimant had walked an amount of metres to the interview room, and the claimant was so incensed by the over estimation of the distance moved, that he got a relative to take him back to the assessment centre with a tape measure and help him actually measure the real distance from the seat to the room he was seen in (the distance was in reality much shorter than the distance noted on the assessment). A further example I have seen in a report recently was when an assessor noted the claimant could remove some id from a breast pocket, and that this meant the person could therefore wash their hair.
In both my jobs I have seen some incredibly obviously disabled people (both physical and mental disability) and yet they have been awarded zero points, and this can be for both ESA and PIP. In particular people with mental health issues and learning disabilities seem to suffer and make up a high proportion of claimants coming to the services I work for , for help. PIP in particular, appears to have been designed to be very difficult for these groups of claimants to succeed in a claim.
From what I read in the assessment reports, there is often no reference to the basic rules of PIP e.g that your entitlement to a descriptor can only be dismissed if you can carry out the activity in the descriptor Safely, to an acceptable standard, repeatedly and in a reasonable time period. There is often an immediate dismissal of variable conditions without fully investigating whether the ‘more than 50% of the time’ rule applies to the applicant. I frequently deal with appeals where the assessor has focussed primarily on only one health condition and failed to address others that impact on the client. Also there are frequently comments from an assessor, in particular relating to people with mental health conditions, that if they do not have current involvement from mental health services or are not taking strong medication, then their disability is virtually dismissed. This is very unfair on people who may have a mental health condition that cannot be treated with medication or who live in areas of the country where accessing long term involvement from mental health workers or services is virtually impossible unless you are in a severe crisis.
I have also noticed that on PIP assessments, an applicant might have been awarded some points under a descriptor but it looks like the assessor will always look for the lowest points to award rather than award on what the evidence suggests. For example the claimant is awarded points for needing an aid to cook (2 points), but the assessment had stated that the person rarely cooked, at most once a week and for the majority of time relied on their partner to cook for them. Therefore they should have awarded points for Cannot prepare and cook food. 8 points.
It seems rarely a person’s medical contact – GP, support worker etc. are contacted prior to a decision being made. Additionally home visits medicals seem to be very hard to obtain.
I briefly looked at the Green paper. I can see some positives in linking the ESA and PIP medicals in that a claimant can often get completely different results e.g a person awarded enhanced daily living PIP is given zero points at an ESA medical. However the downside is that the medicals for ESA and PIP are designed to assess completely different criteria for completely different purposes.
I was interested to see that there has been an increase in people being placed into Support Group ESA, as I have noticed a trend of people coming to my project with a similar story. They are in the Work Related Activity Group and attending work focussed interviews with an organisation that are tasked with carrying out the work related support. The claimant’s disability worker, who is acting on behalf of DWP, tells the claimant that they should be in the support group and to come to our project to get help to be moved into it. Often the disability worker does not seem to fully understand what is required for a person to be re assessed and placed into the Support Group. It has very high criteria to pass and we only recommend an assessment request where the applicant can get some medical evidence to back up the change from WRAG to Support Group.
I personally have always felt that when ESA was introduced, it should have another level to it. It is quite difficult to successfully score the points to fit into WRAG, and I have seen many claimants who had difficulty accessing and maintaining employment due to their disabilities and health problems, but who just could not get enough points to be on ESA. They were thrown into the extreme requirements of the standard JSA claims and being expected to produce CV’s and spend 35 hours per week job searching, which they could not do. I feel there should be something in-between JSA and WRAG ESA, which is for people who score some points but not the 15 required, and so they could be required to engage with the job centre but with a less demanding form of JSA.
Mandatory Reconsideration and Appeal
Claimants seek to overturn initial assessment outcomes for PIP and ESA because they are often shocked at what is written in the summary on their decision letter. They often comment that the assessor has misrepresented what was said or failed to take note of a major piece of information. It is not just the amount of PIP that is lost that affects the claimant, it can be the knock on effect to other benefits, e.g a loss of daily living PIP can cause a claimant to lose the Severe Disability Premium from their ESA, or their Carer to lose their only income. It can also affect a claimants housing because they may have ‘non dependents ‘ living with them who were previously ignored by housing benefit whilst the person had PIP but when it goes they suddenly have their housing benefit cut. I have had many people come into my project because they are losing their mobility car which is their only means of transport in a rural area. For ESA, the failure to pass the medical leads to their only option being to claim Job Seekers Allowance which requires a high level of activity of job seeking to be made every week. Just because someone does not score the full 15 points for ESA, it does not mean they have no health problems or disability that impact on their ability to cope with JSA. This particularly seems to affect people with mental health and learning disability. We have had plenty of appeals where a claimant has been given zero points on ESA but is then placed into Support Group by a tribunal. I have seen many cases where an applicant scored zero points for PIP and then at Tribunal has been placed into Enhanced Daily Living and Mobility.
We have run our specialist project since 2013 and it is the case that we now have more PIP decisions than ESA, that we appeal but I would guess that this is because of the increase in claimants being transferred from DLA.
I do not see that the mandatory reconsideration process is working at all well. Before it was introduced we would have many more appeals that would be overturned by the DWP in the claimant’s favour, before we reached the tribunal. It now seems that the DWP do not properly reconsider the information supplied to them once a Mandatory Reconsideration has been decided on. I have rarely seen a mandatory reconsideration overturn a PIP decision, regardless of if we send in a full argument on each descriptor and extra medical evidence. I have noticed a particular increase (in comparison to DLA) where if a claimant challenges a PIP decision with a Mandatory Reconsideration, they not only do not have any increase, they are downgraded and have their PIP completely removed.
When our project workers attend tribunals (on average 2 or 3 each week), it is quite apparent that the judges are more fully aware of the actual rules and regulations of the benefits system. They then apply the rules to the claimant’s case and they cannot make unfounded assumptions. The panel often consists of a GP who will have a higher medical knowledge than a medical assessor. The tribunal are able to ask a series of targeted open questions in order to get to the facts of the case and apply it to the law. This does not happen at assessment and it does not happen at mandatory reconsideration.
If the process of the medical assessments could be set up to ask much more open questions and allow time for assessors to complete much fuller reports, then hopefully more correct decisions can be made. At present in our area we are now waiting 7 to 8 months for a tribunal to take place. When Mandatory Reconsiderations were first introduced there was a decrease in waiting time for tribunals to 3 months but we are now seeing it creep back up. This wait is very unfair on claimants for a wide variety or reasons, including the anxiety and stress it causes them and the financial implications. I would also like to see PIP descriptors amended to be more inclusive for people with mental health problems and learning disability.
Claimant Experiences
I think a fundamental problem is the lack of time allowed for assessments and the closed questioning techniques of the assessors. If I fill in a PIP or ESA form for an applicant I help them understand which points they may be likely entitled to and I write a lot of detail on the form. I help them identify the issues which they must get across to the assessor regardless of the questioning. When I see a client who has filled in an application form by themselves and attended a medical without understanding how it works, and have then failed the medical, it is a surprise to them to be told how these benefits work in relation to points scoring. Often, because of the closed questioning, a lot of relevant information is missed. Claimants often assume that they do not need to ‘spell things out’ when they have a severe condition or disability because the problems would be obvious to most people. I think that for both these benefits, a short simple explanation of the points scoring criteria for the descriptors, should be issued to the claimant with the assessment forms (ESA 50 or PIP2). Many claimants believe that because they have been claiming a particular benefit for a long time and that DWP had their medical information in the past, that they do not need to supply it all again for reviews. They assume the medical assessor will be aware of their history and have read their application form. I have encountered clients who went to an ESA medical and then a short time period later, a PIP medical and were completely confused and merely said to the assessor that they explained all this the other week. They were given zero points. The letters that arrive from medical services with peoples appointments for assessments do not make it clear which benefit the assessment is for.
In particular people with mental health and learning disability seem to fail the PIP medicals and much of this is the way PIP has been designed to be very narrow in what scores a person can get. It looks like it has been deliberately set up to cut out large amounts of claimants with these issues.
Other Issues
I would also like to comment on a re-occurring problem that we have which is the way PIP operates. We constantly encounter claimants who are being transferred from DLA to PIP and somehow mess up the process of claiming PIP, e.g. they have sent the form back late or missed the medical assessment. In these circumstances the applicants DLA claim promptly stops (their mobility car removed) and then we make a mandatory reconsideration request for the persons claim to be re-instated due to ‘good cause’ for missing the medical. This is often then accepted and the claimant put back into the waiting process for a further medical, but PIP will not re instate the persons DLA pending this, stating they will only do so once a medical has been attended. This completely contradicts usual rules, where if ‘good cause’ has been accepted, then the situation should be put back to exactly how it was and the DLA re-instated.
We are also experiencing long delays after a tribunal hearing where following a positive outcome at Tribunal, the DWP fail to initiate the new payments or backdated benefit. We are currently dealing with a case where a gentleman won his appeal in July 2017 and still has not been paid. The DWP say they have not received the email from the tribunal service and the tribunal service say they sent it.
We are now experiencing a DWP representative attending many or the tribunals we help with and when you consider the amount of money it must cost for DWP to send representatives and 3 professionals to sit on a tribunal, to overturn a decision that if a bit more time had been spent on in the first place, the tribunal may not have been necessary.
November 2017