Essential information for ESA claims, assessments and appeals
Essential Information for claims, assessments and appeals.
There are three essential ideas to keep in mind when claiming Employment Support Allowance (ESA) because of the nature of the ESA50 form, and the fact that Atos are seeking to deny benefits, NOT assess disability: this will not be a fair investigation of your health issues.
This information needs to be shared widely so people are made aware of them, and can use them when claiming ESA or appealing.
These very helpful ideas are:
Reliably, repeatedly and safely
Exceptional circumstances – Regulations 25 and 31
Atos assessments and pitfalls – how they try to deceive you
1. Reliably, repeatedly and safely.
‘Lord’ Fraud made this statement in the House of Lords:
“It must be possible for all the descriptors to be completed reliably, repeatedly and safely, otherwise the individual is considered unable to complete the activity.”
You might be able to go up three steps *once* – but you cannot do it “reliably, repeatedly and safely”, and therefore, by Fraud’s own words you CAN NOT do it at all.
Apply the phrase “reliably, repeatedly and safely” all through your ESA50 or appeal form, use it on each of the descriptors. Make sure you state clearly which activities you can not do reliably, repeatedly and safely because Atos will otherwise assume you are consistently capable of them all.
2. Exceptional Circumstances – Regulations 25 and 31
(were previously Regulations 29 and 35.)
Because of the tick-box nature of the ESA50 form, it is possible that people will fall below the number of points required to be declared incapable of work – it doesn’t take into account variable illnesses, mental illness, or the effects of having more than one illness.
However, there are Exceptional Circumstances Regulations which should cover us – they both state that the claimant should be found incapable of work (29)/work-related activity (31) if:
- they have an uncontrolled or uncontrollable illness, or “the claimant suffers from some specific disease or bodily or mental disablement and
by reason of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work (Regulation 25) / work-related activity (Regulation 31).”
Therefore it would be appropriate, if you feel it applies to you, to add something like the following to the form, where it asks for “other information”:
“If the scoring from my answers above is insufficient, then I believe invoking the Exceptional Circumstances Regulation would be appropriate due to the severity and interaction of my conditions, and my inability to reliably, repeatedly and safely encounter work-related situations (Regulation 29) and/or and safely perform work-related tasks (Regulation 31).
I am taking all available and appropriate medication as prescribed by my doctor(s), and there are no reasonable adjustments to a workplace which would mitigate my medical conditions.
Therefore there would be substantial risk to my mental and/or physical health if I were found not to have limited capability for work-related activity and/or placed into a workplace environment”.
Change the wording to fit your situation, delete mental or physical if appropriate, leave both in if necessary.
Regulation 25 outlines exceptional circumstances in which a person will be treated as having limited capability for work, but may be capable of work-related activities. People in these circumstances are placed in the ESA work-related activity group (WRAG).
However, there are further exceptional circumstances in which a person will be treated as having limited capability for work-related activity in addition, and will therefore be placed in the ESA support group. These are outlined by Regulation 31.
Bear in mind that Regulation 31 is specifically related to limited capability of work related activity, and that you will need to invoke it if your circumstances are such that the support group is appropriate, rather than the work-related activity group.
In deciding which group is appropriate, do consider that those placed in the WRAG may be expected to undertake work placements, and there are more “conditions” to continued eligibility for benefit than there are for those placed in the support group. There may be sanctions imposed on those who fail to meet the “eligibility conditions” of the WRAG.
The full text of the legislation appears at the end of this article (Appendix A).
3. The Atos assessment and what you need to know.
You have a right to have your assessment recorded. You will need to request this in advance, but it’s worth making sure you use this opportunity to gather evidence on record because in doing so, you make it much more difficult for the Health Care Professional (HCP) to disregard what you tell them and write “inaccuracies” in their assessment report. I would strongly recommend you exercise this right.
It’s also worth knowing that Atos don’t conduct “medical” assessments, they conduct “disability analysis“. You are not a patient to Atos, you are a “claimant”.
Bear in mind throughout the assessment that your answers to any apparently innocent questions, such as:
may be translated into phrases for the assessment report like these:
Can sit unaided and unsupported for at least half an hour.
Has no problems with concentration and focus
Has no visual problems
Assessment starts on the day of your appointment with the HCP reading the form you completed when you applied for benefit. Remember that every single question you are asked is designed to justify ending your claim for ESA and passing you as “fit for work.” That is what Atos are contracted to do by the Government. This is not a genuine medical assessment, but rather, an opportunity for the DWP to take away the financial support that you are entitled to.
Things that are noted from your form:
Did you complete the form yourself
Is the handwriting legible
Are the contents coherent
These observations are already used in assessing your hand function, your cognitive state and concentration.
Further observations made:
Do the things you have written add up, is there consistency
Does your medication support your diagnosis
What tests have you had to confirm diagnosis. For example a diagnosis of sciatica is not accepted unless diagnosed by MRI scan
Do you have supporting medical evidence from your GP or consultants. If you do, it shows that you are able to organise getting this information
When the HCP has read your form they input some data into the computer system. The assessment properly begins when they call your name in the waiting room.
At this point the HCP assesses:
Did you hear your name being called
Did you rise from your chair unaided, did the chair have arms or not
Were you accompanied – assessing your ability to go out alone
Were you reading a paper while waiting – assessing your concentration
Did you walk to the assessment room unaided, did you use aids correctly. Did you navigate any obstacles safely – assessing sight
The HCP will shake your hand on introduction – assessing your handshake, noting if are you trembling, sweating – signs of anxiety. Note that you are under constant scrutiny. The HCP will often ask on the way to the assessment room:
How long you’ve been waiting – assessing your ability to physically sit, and appraising your mental state
How did you get here today – assessing your ability to drive or use public transport
Formal assessment begins by listing medical conditions/complaints. For each complaint you will be asked:
How long have you had it, have you seen a specialist
Have you had any tests, what treatments have you had
What’s your current treatment. Have you had any other specialist input e.g. physiotherapy, CPN
The HCP will use a lack of specialist input/ hospital admissions to justify assessing your condition as less severe. Medications will be listed and it will be noted if they are prescribed or bought. Dates will be checked on boxes to assess compliance with dosage and treatment regime. Any allergies or side-effects should be noted.
A brief note is made of how you feel each condition affects your life
A brief social history will be taken – who you live with, if have you stairs in your house or steps outside your house
An employment history taken – when you last worked, what you work entailed, reason for leaving employment
Your typical Day – this is the part of the assessment where how you function on a day to day basis is used to justify the HCP decisions. Anything you say here is most often used to justify the HCP “failing” you and assessing you as “fit for work”. The HCP records their observations.
Starting with your sleep pattern, questions are asked about your ability to function. This will include:
Lower limb problems – ability to mobilise to shop, around the house, drive, use public transport, dress, shower
Upper limb – ability to wash, dress, cook, shop, complete the ESA form
Vision – did you manage to navigate safely to the assessment room
Hearing – did you hear your name being called in the waiting room
Speech – could the HCP understand you at assessment
Continence – do you describe incontinence NOT CONTROLLED by pads, medication. Do you mention its effects on your life when describing your typical day
Consciousness – do you suffer seizures – with loss of continence, possible injury, witnessed, or uncontrolled diabetes
The HCP observations include noting how far you walked to the examination room, watching to see if you removed your coat independently, did you handle medications without difficulty, did you bend to pick up your handbag
Formal examination consists of simple movements to assess limited function. Things the HCP also looks at:
Are you well-presented, hair done, wearing make-up, eyebrows waxed
Do you have any pets – this can be linked with ability to bend to feed and walk
Do you look after someone else – as a parent or carer – if you do, this will be taken as evidence of functioning
Are you doing any training, voluntary work, do you socialise – this will be used as evidence of functioning
This is not a comprehensive list, but it gives you an idea of how seemingly innocent questions are used to justify HCP decisions to pass you as “fit for work.”
Mental Health:
Learning tasks – can you use a phone, computer, washing machine
Hazards – can you safely make tea, if you claim you have accidents, there must be emergency services involvement, e.g. fire service. Near miss accidents do not count
Personal Actions:
Can you wash, dress, gather evidence for assessment
Do you manage bills
Other observations made by the HCP – appearance and presentation:
Coping with assessment interview – any abnormal thoughts, hallucinations, confusion, suicidal thoughts
Coping with change – ability to attend assessment, attend GP or hospital appointments, shopping and socialising
More HCP observations include:
Appearance, eye contact, rapport, any signs/symptoms that are abnormal mood/thoughts/perceptions. Any suicidal thoughts
How you cope with social engagement- appropriateness of behaviour – any inappropriate behaviour must have involved police to be considered significant
Your capacity to cope with the assessment, overall responses and level of engagement with the assessor
Again, this is not an exhaustive list, merely some examples.
Additional information:
Special cases: exemptions from assessment include – terminal illness, intravenous chemotherapy treatment and regular weekly treatment of haemodialysis for chronic renal failure; treatment by way of plasmapheresis; regular weekly treatment by way of total parenteral nutrition for gross impairment of enteric function.
At present to qualify for ESA you need to score 15 points. This can be a combination of scores from physical and mental health descriptors.To qualify for the support group you must score 15 points in one section. As long as you are claiming income-based ESA then your award can be renewed at each assessment, if you gain 15 points.
You may also qualify without meeting the 15 points criterion, even if you don’t score any points, because of Exceptional Circumstances (Regulations 25 and 31) if there would be a substantial risk to your mental or physical health if you were found not to have limited capability for work and/or work-related activity respectively.
Contribution-based ESA lasts for 1 year only, unless you are in the Support Group. After 1 year, in the Work-Related Activity Group (WRAG), you may only get income-based ESA if your household income is below a certain threshold. It makes no difference how long you have previously paid National Insurance.
Further information:
Appendix A:
Regulation 25
25.—(1) A claimant who does not have limited capability for work as determined in accordance with the limited capability for work assessment is to be treated as having limited capability for work if paragraph (2) applies to the claimant.
(2) Subject to paragraph (3), this paragraph applies if—
(a) the claimant is suffering from a life-threatening disease in relation to which—
(i) there is medical evidence that the disease is uncontrollable, or uncontrolled, by a recognised therapeutic procedure; and
(ii) in the case of a disease that is uncontrolled, there is a reasonable cause for it not to be controlled by a recognised therapeutic procedure; or
(b) the claimant suffers from some specific disease or bodily or mental disablement and, by reason of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work.
(3) Paragraph (2)(b) does not apply where the risk could be reduced by a significant amount by—
(a) reasonable adjustments being made in the claimant’s workplace; or
(b) the claimant taking medication to manage the claimant’s condition where such medication has been prescribed for the claimant by a registered medical practitioner treating the claimant.
(4) In this regulation “medical evidence” means—
(a) evidence from a health care professional approved by the Secretary of State; and
(b) evidence (if any) from any health care professional or a hospital or similar institution,
or such part of such evidence as constitutes the most reliable evidence available in the circumstances.
*Regulation 25 outlines exceptional circumstances in which a person will be treated as having limited capability for work, but may be capable of work-related activities. People in these circumstances are placed in the ESA work-related activity group (WRAG)
However, there are further exceptional circumstances in which a person will be treated as having limited capability for work-related activity in addition, and will therefore be placed in the ESA support group. These are outlined by Regulation 31.
Regulation 31
31.—(1) A claimant is to be treated as having limited capability for work-related activity if—
(a) the claimant is terminally ill;
(b) the claimant is—
(i) receiving treatment for cancer by way of chemotherapy or radiotherapy;
(ii) likely to receive such treatment within six months after the date of the determination of capability for work-related activity; or
(iii) recovering from such treatment,
and the Secretary of State is satisfied that the claimant should be treated as having limited capability for work-related activity;
(c) in the case of a woman, she is pregnant and there is a serious risk of damage to her health or to the health of her unborn child if she does not refrain from work-related activity; or
(d) the claimant is entitled to universal credit and it has previously been determined that the claimant has limited capability for work and work-related activity on the basis of an assessment under Part 5 of the Universal Credit Regulations 2013.
(2) A claimant who does not have limited capability for work-related activity as determined in accordance with regulation 30(1) is to be treated as having limited capability for work-related activity if—
(a) the claimant suffers from some specific disease or bodily or mental disablement; and
(b) by reason of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work-related activity.
Appendix B
Most Atos HCPs are not doctors, they are usually nurses or occupational therapists. You can demand that a qualified doctor or specialist conducts your assessment under some circumstances.
List of conditions judged suitable for assessment by neuro – trained nurses/any health care profession, so make sure that you are seen by a qualified HCP:
Prolapsed intervertebral disc
Lumbar nerve root compression
Sciatica
Slipped disc
Lumbar spondylosis
Lumbar spondylolisthesis
Lumbar spondylolysis
Cauda equina syndrome
Spinal stenosis
Peripheral neuropathy
Neuropathy
Drop foot
Meralgia paraesthetica
Cervical spondylosis
Cervical nerve root compression
Cervicalgia
Nerve entrapment syndrome
Carpal tunnel syndrome
Trapped nerve
Paraesthesia
Tingling
Numbness
Brachial plexus injury
Polyneuropathy
Dizziness
Vertigo
Essential Tremor
VWF
Alzheimer’s
List of conditions judged by the DWP and Atos Healthcare as suitable only for assessment by doctors:
Stroke
Head injury with neuro sequelae
Brain haemorrhage
Sub Arachnoid Haemorrhage
Brain tumour
Acoustic Neuroma
Multiple Sclerosis
Motor Neurone Disease
Parkinson’s disease
TIAs
Bulbar Palsy
Myasthenia Gravis
Muscular Dystrophy
Guillain-Barre Syndrome
Amyotrophic lateral sclerosis
Syringomyelia
Neurofibromatosis
Spina bifida
Polio
Fits (secondary to brain tumour)
Learning difficulties (with physical problems)
Nystagmus
Myelitis
Bells Palsy
Trigeminal Neuralgia
Paraplegia
Quadriplegia
Huntington’s Chorea
Huntington’s Disease
Written by Robert Livingstone and Sue Jones.
With many thanks to Joyce Drummond for contributing such valuable information
