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Our response to Work and Pensions Committee PIP and ESA Assessments inquiry

Disability Rights UK (DR UK) is a pan disability membership organisation led by disabled people seeking change. Our membership includes individual disabled people and organisations working on their behalf including disabled people led organisations (DPULOs).

 Among our membership are over three hundred organisations that give advice directly to disabled people, particularly in respect of benefit issues. DR UK run a second-tier advice line where we assist their front-line advice workers with supportive information and advice.

Firstly, we would highlight that we have already submitted the following evidence to the March 2017 Work and Pensions Committee inquiry on the Personal Independence Payment (PIP) application, assessment and appeals process. 

We again enclose -

  • our response to the eight questions posed by the Committee. These were informed by the responses to a ‘snap’ survey we carried out of our individual members and our organisation members;
  • all the responses to the survey (although we have anonymised the details of our individual members);
  • a copy of our response to the Second Independent Review of PIP that included recommendations on the initial assessment process and mandatory reconsideration.

As an additional supplement to the above, we would submit the following.

Do contractor assessors possess sufficient expertise to carry out assessments for people with a wide range of health conditions?

DR UK strongly disagrees that assessors have sufficient expertise to conduct assessments for disabled people or those with long-term conditions.

The recent Disability Benefits Consortium (DBC) report - Supporting Those Who Need It Most? - examines the findings of a survey of over 1,700 disabled people and people with long-term conditions who have made a PIP claim. Disability Rights UK is a member of the DBC and contributed to the report.

When asked about their experience of undergoing the Work Capability Assessment for Employment and Support Allowance -

  • 62% of respondents either disagreed or strongly disagreed when asked whether assessors ‘understood my disability or health condition’;
  • 62% of respondents disagreed or strongly disagreed that assessors ‘took into account how my symptoms/aspects of my disability or health condition change/fluctuate’.

Similarly, when asked about their experience of undergoing a PIP assessment -

  • 59% disagreed that the assessor understood their health condition and 60% disagreed that the assessor took into account how their condition changes.

The following are two typical responses -

“Absolutely pointless being assessed by musculoskeletal examination for serious neurological condition that baffles the world’s top neurologists by a nurse with little knowledge or experience (2yrs qualified) who had never even heard of it.’ – Respondent with an acquired brain injury and depression that underwent a WCA.”

“The 'health care professional' conducting my assessment obviously had no understanding of the condition and did not understand the difference between 'in a coma' and 'altered consciousness'. Awarded 0 points in the assessment as' not in a coma enough' despite written evidence that I have frequent episodes of hyperglycaemia that are classed as episodes of altered consciousness. It took less than 60 seconds to get this incompetent assessment reversed’ – Respondent with diabetes that underwent a WCA.”

Is Department of Work and Pensions quality control for contractors sufficient and effective?

No. The following findings from the Citizen’s Advice Scotland Report Burden of Proof (May 2017) reflects this.

Regarding the accuracy of the healthcare professional’s report –

  • 59% of CAB adviser DBC survey respondents said that clients ‘rarely’ agreed that the healthcare professional’s report accurately reflected the discussion that took place;
  • 20% said it ‘sometimes’ reflected the discussion that had
  • taken place and 13% said it ‘never’.

In July 2016 evidence given to the Social Security Advisory Committee, the Money Matters Advice Service said –

“We consider HCP reports continue to be generally of poor quality and the DWP’s over reliance on them is a key reason why outcomes are so poor at the MR stage compared with the appeal stage. We consider the DWP habitually fail to give proper weight to evidence from other sources and that a culture change with respect to their approach to weighing up of evidence at the MR stage needs to happen, with a more even handed and less HCP focused approach adopted”

Further examples can be found in the www.rightsnet.org.uk discussion thread on the ‘Standard of PIP decision making’.

It includes these comments –

“I’ve long since given up anticipating anything positive from MRs. I can count the decisions changed at MR stage on one hand (and then usually given the least possible award despite extremely strong evidence in support of a higher award, presumably in the hope that a crumb from the table will shut the client up). It’s the sheer cynicism of it that depresses me. “

and

“How do the DWP expect to ‘get it right first time’ (or 2nd or 3rd) in PIP when they reproduce the WCA assessment process in PIP that has failed so miserably to gather appropriate evidence or make appropriate decisions for IB/IS/ESA for the last 20 years?

… A typical example: client had DLA higher rate care component and lower rate mobility component - enduring mental illness - organic delusional (schizophrenia-like) disorder. History of frequent detentions under the Mental Health Act. Given the high success rates of both ESA and PIP appeals we would recommend that the DWP review how it currently weighs and considered further evidence.

Should the options for reforming the Work Capability Assessment mooted in the Government’s Improving Lives green paper be taken forward?

The Green Paper offered no suggestions for the reform of the work capability assessment (WCA) itself. Instead it proposed separating eligibility for financial and employment support.

DR UK submit that the WCA must be the subject of fundamental reform of the content of the assessment.  Any assessment for support must be able to capture an accurate picture of the barriers disabled people face. This should include understanding not just the physical or mental conditions that make it difficult for someone to work, but also other barriers to work such as housing issues, debt, relationship breakdown, lack of access to treatment and employer stigma.

The current content and descriptors of the WCA focus on assessing functional restriction through a narrow focus on specific activities, such as ‘picking up a £1 coin or equivalent’ or ‘picking up and moving a 0.5 litre carton of liquid’

Currently, factors such as whether someone can get themselves to work is not considered.

We hope a review would help to ensure that the content and underpinning principles of any assessment accurately capture the barriers disabled people face and are based on a robust evidence base and understanding of their experiences. The DBC has never seen any of the evidence underpinning the current WCA and weaknesses in its design have been highlighted, including by the Year 4 Independent Review.

However, we submit that in fact the work capability assessment itself needs to be scrapped in its present form.  There have been recurrent calls for reform of the Work Capability Assessment (WCA) dating back nearly to its introduction in 2008.But the Green Paper proses not a single reform to the WCA and instead seeks to rebrand it as simply a “financial assessment”.

This will not solve the problem. It is correct that the WCA informs how much ESA is weekly paid to a claimant. However, it also determines the conditionality imposed on a claimant – compulsory work-related activity or voluntary work related activity.

DR UK believes that the WCA is not fit for purpose in establishing the level of financial or work support given to disabled people.

The inaccuracy of the decisions resulting from the WCA is clear from the on-going high number of successful appeals.

The latest quarter for which tribunal stats are available (January to March 2017) highlights that -

“The number of SSCS appeals has been increasing since April to June 2014. In January to March 2017, 69,047 appeals against decisions were received, up 67% compared with the same period in 2016. This increase is driven by increases seen in ESA and PIP appeals which account for 86% of all SSCS appeals in this quarter.

ESA and PIP also make up the majority of SSCS disposals, with 39% and 44% of total disposals respectively. Disability Living Allowance (DLA) is gradually being replaced by PIP and comprises 3% of total disposals, down from 5% in the same quarter of 2016. 

The number of disposals has gradually increased alongside receipts. In January to March 2017, 52,780 cases were disposed, up 17% when compared with the same period in 2016. Of these disposals, 43,842 (83%) were cleared at hearing and of these 64% were found in favour of the customer. This overturn rate varied by benefit type, with PIP having 64% in favour of the customer, ESA - 70%, DLA - 61% and Job Seekers Allowance - 41%.”  

Despite some changes made to the WCA since its introduction, it rightly still attracts strong criticism. Problems highlighted by disability and welfare rights organisations include:

  • The number of claimants with serious health conditions or disabilities who are found “fit for work”, or placed in the wrong ESA group, due to deficiencies with the WCA descriptors or in the assessment process;
  • The lack of information about outcomes for individuals following fit for work determinations, and concerns about the risk of poverty and destitution as a result of incorrect decisions;
  • That it does not properly assess the difficulties of those with fluctuating conditions or poor mental health;
  • The high success rate for appeals against ESA decisions with currently 62% of initial fit for work decisions being overturned;
  • The fact that ESA is not payable pending a “mandatory reconsideration” of the decision by the DWP, meaning that the only option in the meantime is to claim Jobseeker’s Allowance, exposing the disabled person to inappropriate conditionality; and
  • The impact of assessments, reassessments, and poor decision making on the physical and mental health of claimants.

In its July 2014 report on Employment and Support Allowance and Work Capability Assessments, the Work and Pensions Committee concluded that ESA was not working particularly in terms of achieving the intended employment objectives for claimants.

It found that that the outcome groups were “too simplistic”, with the WRAG becoming a “catch-all” group for those who failed to meet the conditions for the Support Group, but weren’t seen as fit for work.  The focus on returning to work within a relatively short period of time was not appropriate for many of these claimants.  In addition, the WCA failed to provide an accurate assessment of a claimant’s individual health-related employment barriers, or their distance from the labour market.

The Select Committee concluded that the WCA activity “descriptors” do not in many cases produce accurate outcomes of functional capacity in the workplace. The MPs recommended a “fundamental redesign” of the ESA end-to-end process, including a reassessment of the effectiveness of the design and application of the descriptors used in the WCA, to make them more responsive, particularly for claimants with progressive and fluctuating conditions, and those with mental, cognitive and behavioural difficulties. It also recommended that DWP should reintroduce an assessment of health-related employment barriers into the redesigned ESA process.

Another July 2014 report, Assessing the Assessors, published by the Centre for Welfare Reform, was based on data from 884 respondents to an online questionnaire. 73% of the respondents had physical impairments and 70% had mental health problems. The questionnaire asked people who were sick or disabled to assess the assessors - to describe how they were treated in the assessment process and what impact the assessment had on their lives.

Among the disturbing statistics are that:

  • 95% found the assessment damaged their health, 29% severely
  • 95% gave the assessment a mark of 5 out 10 or less, 43% gave it the lowest possible mark
  • 80% of the time the respondent felt the assessor did not listen to them

A June 2015 briefing paper by the British Psychological Society (BPS) cited a growing body of evidence that seriously ill people are being inappropriately subjected to WCA,

Professor Jamie Hacker Hughes, president of the BPS, said: “There is now a significant body of evidence that the WCA is failing to assess people’s fitness for work accurately and appropriately, with people who are seriously physically and mentally ill being found fit for work and those with acute, transient episodes being assessed as lacking capacity and treated in the same way as those with a longer-term prognosis.”

November 2015 research published in the Journal of Epidemiology & Community Health suggested that introduction of the WCA had taken a “serious” toll on the nation’s mental health, concluding that: “This policy may have had serious adverse consequences for mental health in England, which could outweigh any benefits that arise from moving people off disability benefits.”

We would support the Green Paper response of the Disability Benefits Consortium (DBC) in advocating the following -

“Any assessment for support must be able to capture an accurate picture of the barriers disabled people face. This should include understanding not just the physical or mental conditions that make it difficult for someone to work, but also other barriers to work such as housing issues, debt, relationship breakdown, lack of access to treatment and employer stigma.

The current content and descriptors of the WCA focus on assessing functional restriction through a narrow focus on specific activities, such as ‘picking up a £1 coin or equivalent’ or ‘picking up and moving a 0.5 litre carton of liquid’. Currently, factors such as whether someone can get themselves to work are not considered.

In our evidence to the Fifth Independent Review of the Work Capability Assessment, we set out 10 recommendations for the development of an alternative WCA –

  • the descriptors should be 'recast' to fairly reflect the true barriers disabled people face in obtaining work;
  • the recast assessment should be capable of identifying the support that would equip people where appropriate with the means and the skills to overcome these barriers;
  • external and social factors should be built into an algorithm and used as a multiplier for the points accumulated against the descriptors;
  • the assessment of activities of daily living and observed behaviour should be abandoned, as they are far too subjective and not evidence based;
  • the assessment should cease to be carried out by inappropriate medical staff and claimants should have access to either specialist staff who understand their condition or occupational therapists or vocational rehabilitation specialist who are more familiar with the inter relationship of impairment and work;
  • the support element of the recast assessment should be automatically shared with providers of welfare to work so that the latter do not have to relearn the disabled person’s support needs or history leaving the person feeling over-assessed and under-supported, or the provider ignorant of the characteristics of the person newly attached to their caseload;
  • there should be an end to reassessments for people whose health condition is static or degenerative unless the person volunteers for such an assessment;
  • employment support should be improved in both design and delivery so that the recast assessment provides a real opportunity for people where appropriate to come off benefits and into work;
  • decisions about eligibility should be made in a timely fashion; and 
  • assessments should be routinely recorded where requested by the claimant and copies of the recordings provided to them.

Why do claimants seek to overturn initial assessment outcomes for ESA and/or PIP?

Claimants seek to overturn initial assessment outcomes for both ESA and PIP because of the systematic failure to correctly identify people’s needs and offer them appropriate financial support.

We submit that our submission to the Second Independent PIP Inquiry apply equally to PIP and ESA –

“PIP is not just failing those disabled people deliberately excluded by its cost-cutting eligibility restrictions.

It is also failing those disabled people who are wrongly being refused entitlement to it.

There are several reasons for this – such as the failure to obtain and properly weigh further evidence, the withholding of Health Care Professional (HCP) medical reports until the appeal stage and a mandatory reconsideration process that is not working.

However, we submit that the origin of all these problems lies with the adequacy and accuracy of the Atos/Capita assessments.

48% of DBC survey respondents who had received a copy of their report disagreed that it reflected the impact of their impairment or health condition on their ability to undertake daily activities.

For example –

“Decision was based on numerous factual errors, and disregarded important parts of the PIP regulations; in particular, the Reliability criteria were largely ignored.”“Assessment report was full of lies and inaccuracies including false simple observations at the assessment.”

Most PIP decisions are made following a face to face assessment by either an Atos or Capita HCP.

It is at this point that a PIP claimant has the opportunity to personal explain and answer questions in detail as to the nature of their disability and/or health condition, any treatment they receive (or which has failed), and how their disability impacts on their daily living and ability to get around.

This opportunity needs to be seized.

Inaccurate assessments and recommendations as to someone’s true ability to ‘perform activities safely, to an acceptable standard, repeatedly and in a reasonable time’ is resulting all too often in a process that denies them justice until their appeal before an independent tribunal.

On 23 May 2016, then Minister for Disabled People Justin Tomlinson said in a parliamentary answer -

“The Department gathers information on the reasons why PIP decisions have been overturned from its Presenting Officers and the summary reasons it gets back from the Tribunal hearing. Internal Management Information for 2015/16 indicates that either new oral or documentary evidence supplied at the hearing are the leading reasons for PIP decisions being overturned in 75% of overturns recorded.”

However, in a further written response the next day, the Minister refined his answer as follows –

“The 75% can be broken down as follows:

Cogent oral evidence – 66%

Cogent documentary evidence supplied at the appeal – 9% “

Individual responses to a DBC survey in relation to appeal tribunals included the following –

“I received standard care & mobility because I believe that the people, one of whom was a doctor, seemed to understand my condition. They asked probing questions.”

“The appeal panel were more compassionate, they could see I was struggling which the original assessor chose to ignore”

“The tribunal, while imperfect, better understood and more accurately applied the regulations. DWP's application of the regulations was largely incompetent”

We would submit that “cogent oral evidence” should properly be obtained during the PIP assessment process itself, most logically at the face-to-face assessment.

If it were, then it is more likely that decisions would be made right first time.”

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

What accounts for the rate of overturned decisions at appeal for PIP and/or ESA?

What changes could be made earlier in the process to ensure fewer claimants feel they need to appeal?

In July 2016 study, Decision Making and Mandatory Reconsideration the Social Security Advisory Committee (SSAC) criticised in detail the way mandatory reconsideration is being implemented by the DWP and made some 50 recommendations.

These included that the mandatory reconsideration process should be standardised across the DWP with clear communications setting out the processes and the time limits that apply.

The SSAC also recommended that –

“DWP should provide a copy of the Healthcare Professional Report with all decisions made that find the claimant fit for work so that the claimant can understand the basis on which the decision was made.

…If claimants had access to the HCP report earlier in the process,

they would be able to see for themselves the evidence on which the DM has based their decision. This would allow them to better understand the decision and help inform what evidence they may need to provide to bring about the change in decision. This potentially saves time for all involved and facilitates evidence to be provided earlier and thereby avoid the need for a tribunal.”

We strongly support this recommendation and submit that it is equally applicable to PIP.

In addition, we would submit that a copy of the full PIP daily living and mobility descriptors and points scheme should also be sent.

Without having access to this it is not possible for a claimant to see what points should have been correctly awarded to them and so be able to decide if they should challenge their PIP decision.

SSAC considered evidence of the primary reasons for appeal tribunals overturning DWP decisions and concluded that –

“… the data suggest that cogent oral evidence provided is critical to decisions being changed at tribunal.

As mentioned previously, tribunals are better placed to obtain this than DWP; there is a question of whether better oral evidence could be elicited from claimants without the need for a costly tribunal setting.”

The obtaining of further written evidence should be an advantage to both claimants and the Department in ensuring that PIP decisions are correctly made without the need for appeal.

However, we question how far further evidence is in practice considered by PIP decision makers, SSAC report that -

“When we spoke to DMs, they told us they believed much of the evidence provided by doctors was not relevant as it rarely related directly to the descriptors that form the basis of entitlement.”

We submit that while the better obtaining of further evidence is in itself only a positive step in itself it will not in itself lead to better decision making.

A DWP PIP Case Manager is tasked with deciding what points a claimant should score under the PIP descriptor scheme.

They are provided with DWP contracted Atos/Capita HCP medical report that specifies exactly this.

Other further evidence provided will often not be in this format. While taken as a whole, this evidence may ‘conflict’ say with the extent of someone’s disability as reported by a HCP.

But the further evidence may directly address only a few or none of the 12 PIP activity descriptor activities that a Case Manager is charged with considering.

Even if a Case Manger decides to seek advice on this ‘conflict’ from who can they do this? Only from the very HCP who provided the initial inaccurate report.

This is in sharp contrast to the reconsideration undertaken by an independent appeal tribunal.

The tribunal panel itself consists of a legally qualified judge and a doctor (not a paramedic or nurse) and someone who has experience of the needs of disabled people. As well as considering all documentary evidence available, it takes detailed oral evidence form the claimant and then combines its skills to make its decision.

In response to an April 2017 Freedom of Information request the DWP has confirmed that one of its 'key performance measures' is to uphold 80% of decisions where the claimant has requested a mandatory reconsideration.

In respect of the year April 2016 to March 2017, the DWP's actual performance measures were 87.5% of the original decisions upheld.

However, the Ministry of Justice in Tribunals and gender recognition certificate statistics quarterly: January to March 2017 and 2016 to 2017 state that –

  • 64% cent of PIP decisions were overturned in the claimant’s favour;
  • 70% of ESA cases were overturned in the claimant’s favour.

Clearly something is going wrong with the assessment and reconsideration process.

The DWP has previously insisted that the above statistics do not mean that PIP decisions are wrong, but the result of further evidence not being submitted until the appeal stage.

But it is not clear that further evidence is generally unavailable at the reconsideration stage.

The following parliamentary question and answer exchange took place on 12 September 2016 -

“Asked by Dr Eilidh Whiteford (Banff and Buchan) - To ask the Secretary of State for Work and Pensions, how many mandatory reconsiderations for personal independence payments have resulted in a revised decision as a result of further evidence in each of the last three years.

Answered by:
Penny Mordaunt - The information requested is not available. “

The view commonly expressed by advisers is that further evidence is not properly considered at the mandatory reconsideration stage.

In evidence given to the SSAC, the Money Matters Advice Service said –

“We consider HCP reports continue to be generally of poor quality and the DWP’s over reliance on them is a key reason why outcomes are so poor at the MR stage compared with the appeal stage. We consider the DWP habitually fail to give proper weight to evidence from other sources and that a culture change with respect to their approach to weighing up of evidence at the MR stage needs to happen, with a more even handed and less HCP focused approach adopted”

Further examples can be found in the recent www.rightsnet.org.uk discussion thread on the ‘Standard of PIP decision making’

It includes these comments –

“I’ve long since given up anticipating anything positive from MRs. I can count the decisions changed at MR stage on one hand (and then usually given the least possible award despite extremely strong evidence in support of a higher award, presumably in the hope that a crumb from the table will shut the client up). It’s the sheer cynicism of it that depresses me. “

and

“How do the DWP expect to ‘get it right first time’ (or 2nd or 3rd) in PIP when they reproduce the WCA assessment process in PIP that has failed so miserably to gather appropriate evidence or make appropriate decisions for IB/IS/ESA for the last 20 years?

… A typical example: client had DLA higher rate care component and lower rate mobility component - enduring mental illness - organic delusional (schizophrenia-like) disorder. History of frequent detentions under the Mental Health Act.”

“Claimants Community Psychiatric Nurse attended PIP HCP consultation with client. Extensive medical evidence provided at consultation and oral evidence given by CPN. This evidence not recorded on PA4.  This evidence is not referred to in the original or MR decision notice. No reference to this evidence in HCP or decision makers reasoning. No mention of previous DLA award. Awarded 7 points Daily Living and 4 points Mobility.

Tribunal awarded 15 points Daily Living, 10 points Mobility.”

Are there lessons that could be learned from the ESA MR and appeal process for PIP and vice-versa?

Unlike ESA, PIP claimants cannot receive an ‘assessment rate’ or equivalent while they appeal their decision. Given that the Social Security and Child Support tribunal takes around 20 weeks to hear cases, we feel this is an unacceptable length of time to ask disabled people to go without any financial support.

While claimants can now keep their Motability vehicles for up to six months while they appeal PIP decisions, we’re extremely concerned that the time taken to undergo MR and wait 20 weeks for appeal means that many people will still face losing their cars.

Ken Butler - Welfare Rights Officer at Disability Rights UK

November 2017