ESA: The Assessment (Work Capability Assessment)
DWP reveal how it will decide not to carry out WCA reassessments.
The DWP has now published the final versions of the “severe conditions” healthcare professional (HCP) guidance and criteria, their training guide and case scenario’s (see above).
The new DWP Severe Conditions Guidance says that: “The new re-referral period will apply to those with LCWRA ONLY. If a claimant has LCW but not LCWRA, the process remains as now.”
To avoid a reassessment, claimants will have to satisfy, all four of the following:
the level of function will always meet LCWRA criteria;
the condition will always be present (some lifelong conditions are present from birth, but others will develop or be acquired later in life);
no realistic prospect of recovery of function (with advice on this being based on currently available treatment and not on the prospect of scientists discovering a cure in the future);
unambiguous condition (following all relevant clinical investigations a recognised medical diagnosis has been made).
If all the above four criteria and any of the LCWRA criteria are met, the HCP is to advise the decision maker that the claimant has a Severe Condition and has LCWRA.
Examples of conditions that might meet all four criteria are given as:
Motor Neurone Disease (MND);
severe and progressive forms of MS, Parkinson’s;
severe irreversible cardiorespiratory failure; and
severe acquired brain injury.
However, the guidance does makes clear that “this list is not exhaustive”.
In terms of making a no reassessment recommendation, the DWP says: “Where further evidence is considered necessary to enable advice regarding review or no review for a longer term prognosis further medical evidence review should always be chosen. As per current process only one request for written medical evidence should normally be made and at review only one telephone attempt to chase the evidence is required. If the claimant or their representative needs to be contacted for further evidence then a maximum of two telephone calls should be made.
These should be documented on an FRR4. If the evidence is not available, you cannot advise that the claimant has a Severe Condition and normal filework case control action applies. Filework HCPs should not default to calling a claimant to an assessment if the evidence required to meet the criteria is not available. If at filework a HCP feels that enough evidence is available on which a LCWRA ‘in the longer term’ recommendation can be made, but is unable to make a recommendation based on the Severe Conditions criteria, the advice is that they do not seek to call for exam but instead make a paper-based recommendation that change is not expected ‘in the longer-term’. The reason being that DWP believes that to increase the burden on this group of claimants would be unnecessary and go against the spirit of the policy announcement.”
The principles behind the changes to reassessment criteria are to:
reduce any unnecessary disruption caused to claimants by a repeat assessment when we do not expect re-assessments to tell us anything new for the purposes of administering their benefit.
reduce the burden placed on claimants to continue to produce evidence confirming the impact of a health condition or disability
reduce the need for the Department or CHDA to conduct unnecessary assessments when resource could be better focused. https://www.disabilityrightsuk.org/...
DWP have started arguing, for the purposes of disability benefits, that walking done indoors will be considered as representative of a person’s ability to walk out of doors unless there is reason to believe otherwise. Beware of this false and illegal argument!
The PIP, ESA and UC descriptors for mobilising/mobility specifically talk about walking out of doors. That means that your ability to walk out of doors is legally all that can be considered. The Upper Tribunal have also said that a person’s ability to walk in an ordinary street environment is what needs to be looked at. If DWP try to argue otherwise, ask them for a Statement of Reasons explaining what statutory or case law they are relying on. They’ll soon back down.
Another helpful free tip from the BuDS Benefit Information team!
DWP published some startling statistics about the hated Work Capability Assessment, the test to see whether or not you are ‘fit for work’ and can get Employment & Support Allowance (ESA), just before Christmas. BuDS thinks these statistics prove that ESA isn’t a fair and balanced benefit supporting disabled and ill people, it’s a trial by endurance riddled with injustice. Read on for more…
A THIRD OF CLAIMANTS DROP OUT IMMEDIATELY
An astonishing third of all Work Capability Assessments are ‘closed by the claimant’ – ie the disabled or ill person supposedly ‘withdraws’ their claim for ESA by not returning the form or not attending the assessment. Only 3% of claimants in this situation ask DWP to re-open their claim because they had a good reason to miss returning the form or going to the assessment. It’s clear that the process of applying for ESA is a huge barrier in itself.
WORK CAPABILITY ASSESSMENT RESULTS
Of those sick and disabled people who go through the WCA:
Historically more than half (52%) claimants have been placed in the Support Group, but in the last six months only 42% have ben put into the Support Group.
Historically 10% of claimants have been placed in the Work Related Activity Group, but in the last six months a fifth (20%) of people have been put into WRAG.
Historically over a third of claimants (38%) have been declared ‘fit for work’ – over the last six months, that figure has been the same.
What this means is that, if ten people went through the WCA this autumn, statistically four would be in the Support Group, two in the WRAG and four would be ‘fit for work’. It looks like recently the DWP are making it harder to get into the SG and putting more people into the WRAG instead.
ASKING DWP TO LOOK AGAIN AT THEIR DECISION
Only 15% of people who go through the WCA ask DWP to look again at their decision (a mandatory reconsideration, or MR). This is very low given that 60% might have a good reason to be upset, because they have been placed in the WRAG or found ‘fit to work’. Most people seem to just accept the DWP’s decision – maybe because they don’t know about MR, or can’t face doing it.
Of those who ask for a MR:
Most people (57%) are asking the DWP to think again about declaring them ‘fit for work’. However, the DWP change their mind about only a tenth (12%) of decisions that someone is fit for work. So, you have a low chance of getting the DWP to change their mind that you are fit for work.
About a quarter (25%) of MRs are about being placed in the WRAG rather than the SG. The DWP changes its mind and puts people into the SG about 4 times out of ten (42%). So, you have a fair chance of getting the DWP to change their mid and put you into the SG rather than the WRAG.
About 17% of MRs are about DWP decisions to stop an ESA claim because the claimant supposedly failed to return a form or attend the assessment. Just over a quarter of the time (28%), DWP changes it’s mind and restarts the ESA claim. So you have a poor chance of getting DWP to change their mind about whether you had a good reason to miss an appointment or not return a form.
APPEALING TO THE INDEPENDENT TRIBUNAL
Only about a fifth (21%) of people who are turned down at MR stage go on to appeal to the independent Tribunal. The large majority (four-fifths) seem to accept the outcome of their MR. This is very low, given that the person obviously disagrees with the DWP’s decision, or they’d not have bothered asking for an MR in the first place. Is this because they don’t know about the Tribunal or can’t face up to the process, or don’t have help to appeal? The number appealing to the Tribunal is falling slowly – is this because DWP are getting better at decisions, or because people are less able to appeal?
Of those who do appeal to the Tribunal, a whopping two thirds – 66% - currently win their appeal. The win rate is slowly increasing. Most (99%) appeals are against DWP decisions that you are fit for work, and those who do win are usually (95%) placed in the WRAG group. Only a few Tribunal appeals are against being placed in the WRAG group rather than SG, and most of those seem to be won. Of the third of people (37%) who lose their Tribunal appeal, nearly all of them remain classified as ‘fit for work’.
WHAT THIS MEANS FOR YOU
The figures confirm what we all know: if you are sick or disabled and cannot work, the benefits system is a huge barrier to getting the support you need. But if you can fight the system all the way to the independent Tribunal, you can get justice and what you are entitled to in law.
An astonishing third of ESA applicants don’t make it through the form-filling and ATOS assessment, stage. Of those that can endure it, about 6 out of 10 people then get an award of ESA.
A lot of people give up at that stage, possibly because DWP do not often change their mind if you ask them to look again at their decision (a mandatory reconsideration).
People who go to MR and are turned down usually give up at that stage. Only a small number can persist and go to the independent Tribunal, but when they do, over two-thirds win. What that proves is that a massive number of people who should get ESA don’t receive it because the DWP make the wrong decision, but the person isn’t able to fight it.
The DWP’s own statistics show that ESA isn’t a fair and balanced benefit supporting disabled and ill people, it’s a trial by endurance riddled with injustice.
DWP publish some startling statistics about the hated Work Capability Assessment