As a former ESA claimant and survivor of the demeaning, brutal theatre of lies that is the WCA, I know first hand how the DWP and Atos grind down, bully, hound and lie. I should do, their dirty tricks and constant harassment drove me to the brink of suicide. So firstly, I want to say to anyone in the same position, YOU ARE NOT ALONE. We stand with you. We will reply to all comments and if you want support and need to message us privately, our email address is kickingtoryassonwelfare@hotmail.com.
That said, there is cause for hope here. ESA and the WCA are actually the things we’ve managed to gather the very most information about. There ARE ways round it. Allow us to share all of them with you. This post will necessarily be a behemoth, and all this information can be daunting – but I’ve broken it down into different stages of the process, which will hopefully help.
A good point to remember is that most Atos assessments are currently illegal, and if you can prove that you can beat them.
This advice is correct to the best of our knowledge, but please check with your local Welfare Rights or Citizens’ Advice Bureau. (I know these services are also desperately stretched, but Welfare Rights generally have a phone number where you can seek general advice without having to wait weeks or months for an appointment).
With thanks to an advocate who preferred not to be named.
ALTERNATIVE OPTIONS YOU MAY NOT KNOW YOU HAVE
Firstly, I want to share a very simple alternative option shared in its turn with me by Welfare Rights. It won’t apply to everyone and I’m sorry for that, but I am very sure this is not something the DWP is publicising to those who may be entitled to do this (they don’t like telling us about stuff that would make our lives easier). If you have a partner who you live with as a couple, and if your partner claims Carers‘ Allowance for looking after you, your partner can claim Income Support for both of you. (If you have a partner you live with as a couple, and your partner doesn’t already receive Carers’ Allowance, they will usually be able to claim it if you claim ESA for sickness or disability, receive DLA and if they care for you 35 hours a week or more). This information made little sense to me when I first heard it; Income Support is being phased out, I argued, they already pulled me off it and on to ESA. My adviser rightly pointed out that so is ESA; they will all make way for Universal Credit. The point is, Income Support is available to partner/carers now, it is more money (by about £15 a week, depending on what premiums you are in receipt of) and you don’t have to go for medicals. Partners of I.S. claimants MAY be called in for work focused interviews after 26 weeks continuous receipt of the benefit, but I was told by my adviser that sanctions are far less heavy than under ESA, and that with all the changes happening currently this may well not be a priority for the DWP and such individuals may just as easily be left alone. This information literally saved my life; I was at the point where I was ready to take my chances and refuse ESA anyway as the toll on me was too great and I would literally rather have gone hungry. The Income Support came through within a week with no problems and although I obviously can’t infer from that that it will be the same for everyone else it did support my hypothesis that ESA, with which our problems had never ended, is a benefit designed to grind down recipients and make them give up.
If this applies to you, you must first end your ESA claim and then your partner must ring the Income Support line: 0800 55 6688
*Please note, however, that if you take this option, the partner of the I.S. claimant would no longer have national insurance credits paid. For me this was a trade off I was more than willing to make, but it is important to be aware of it.
Secondly, if you have been called for a WCA or are appealing a decision, be aware of regulations 29 and 35 which provide for claimants being placed in the support group even if a score of under fifteen points is recorded (the points are the criteria for whether or not you are found fit for work, with fifteen being the threshold below which a person would be deemed so). These regulations clearly state that if requiring a claimant to look for work or take part in work related activity would be an unacceptable risk to their physical and/or mental health, the claimant can still be found unfit for work or work related activity with a score of under fifteen points. This exception can be useful in the initial instance of WCA, having a decision looked at again without having to go to tribunal, and at tribunals. Black Triangle Campaign have all the relevant information on this including downloadable draft letters and legal guidance on interpreting the regulations for your GP. Find at http://blacktrianglecampaign.org/2012/11/16/important-how-to-gain-exemption-from-dwpatos-fit-for-work-wrag-decisions-by-applying-esa-regulations-29-and-35-new-campaign-by-black-triangle-dpac/ and http://blacktrianglecampaign.org/2012/11/21/important-black-triangle-dpac-regs-2935-campaign-failed-your-dwpatos-wca-intend-to-appeal-download-these-documents-for-your-gp/
FILLING IN THE ESA50
For new claims never send any supporting information the first time because having new supporting information is the grounds for appeal. IMPORTANT NOTE: IT HAS BEEN BROUGHT TO MY ATTENTION THAT SUPPORTING MEDICAL EVIDENCE DATED AFTER YOUR CLAIM WAS FIRST MADE CAN BE DISREGARDED AT APPEAL BECAUSE IT IS LEGALLY INVALID FOR THE CLAIM’S TIME PERIOD, AND YOU MIGHT HAVE TO MAKE A NEW CLAIM. THEREFORE, IT IS ADVISABLE TO MAKE SURE MEDICAL PROFESSIONALS MAKE CLEAR THAT THE INFORMATION IS ALSO APPLICABLE RETROSPECTIVELY, I.E. TESTIFY THAT YOUR CONDITION HAS NOT CHANGED AND WAS OF EQUAL SEVERITY AT THE TIME YOU FIRST CLAIMED.
Fill in the benefit forms, answering every question as if it is your worst day. There is no point telling them about a good day because then you will not get enough support for the worst days. The only exception is to make sure you don’t say anything that could later be interpreted as a lie. For example if you can walk some days then don’t say that you can never walk because if someone sees you out walking then that is grounds for withdrawing your benefits and even sending you to prison. However you will not get enough support unless you describe your very worst day, not an average day.
esa-d These are the ESA descriptors.
Here is a link to advice on filling in the form: http://www.rethink.org/living_with_mental_illness/money_debt_benefits/benefits/employment_and_support_allowance/work_capability_assessment/the_esa50_questionna.html
And another: http://dwpexamination.wordpress.com/atos-checklist/
This is a brilliant legal guide to filling in the form. It looks a bit daunting at first glance but if you scroll down past ‘For the legally minded’ there is an interactive guide to filling it in which takes you to the regulations and legal definitions to see how many points you score: http://ilegal.org.uk/thread/7372/interactive-guide-completion-new-esa?scrollTo=18541&page=1
You may be able to have an assessor visit your home, depending on your condition. There is excellent information on home visits here: http://dwpexamination.wordpress.com/dealing-with-an-atos-home-visit/
If you also claim DLA, you can also use your DLA to help with your claim for ESA, at this stage or at appeal stage. With thanks to The People Vs the Government, DWP and Atos for the following:
HELPING WITH YOUR ESA BY USING DETAILS FROM YOUR DLA
An excellent way of showing the nonsense of the situation in your circumstances is to request all the evidence used on your DLA claim then use it to show your problems in your ESA Appeal. Think about the reasons you were awarded Middle Rate care (MRC) was it because you need continual supervision or because you need personal care? Think of the ways in which you require this care and the reasons you can’t do it yourself, do you need help to wash, bathe, prepare a meal? Is this due to a problem with manual dexterity? If so, you can score points on your ESA claim under descriptor 5. If its because of problems with your spine, which part, upper or lower limbs affected? If upper, you may score points on your ESA claim under descriptors 3 and 4, if lower limbs, then descriptors 1 and 2.
If you have already been placed in the WRAG you need to concentrate your efforts on the support group criteria, which is notoriously difficult to satisfy unless you scored 15 points on 1 descriptor alone to be placed in the WRAG. Therefore the best way for you to be placed in the support group is by arguing under Regulation 35 that there is a substantial risk to yourself (by virtue of a deterioration in both your mental and physical health) if you were found not to have a limited capability for work-related activity.
For everyone: I know that many GP’s are not aware of what work-related activity actually means. It is absolutely imperative you let them know it means if you fail to turn up to an appointment your benefit could be sanctioned, that if an adviser deems it appropriate, you could be forced to take part in group therapies, attend physiotherapy, engage with a “voluntary” work placement etc.
In terms of reassessments, you need to ask your GP or Consultant to state how long he envisages your condition will cause the same problems. Don’t forget that decision-makers are not medically trained and will often take the view that even lifelong conditions may improve to such an extent that daily life can now be maintained with appropriate treatment. (Off the Black Triangle Web Site/ Admin S)
Finally, it’s not all bad news, at least a tiny step in the right direction is slowly filtering through. Tribunals are now stating how long the DWP should wait before reassessing a claimant. In agreement with DWP decision-makers, they are able to state a reassessment period of up to 3 years and DWP will abide by that finding.
Just found this in the DWP WCA handbook. This means that by law, the decision maker has to use the evidence from your own GP and specialists over the ATOS HCP and descriptor system. Their words, not mine!!…
“Consistency is a vital element in any good report. It is essential that the comments really do bear out the choice of descriptor, especially when the opinion differs from the customer’s own assessment, and the Decision Maker must decide which (if either) assessment is correct.” [Decision Maker]
The Decision Maker has a legal duty to ensure that their decisions are based on facts which are clearly established by evidence: “A definite distinction is made between fact and opinion and while an opinion on its own may have persuasive value it can never take precedence over an opinion which is based on clear and concise evidence”. Revised WCA Handbook
ESA (LCW/LCWRA) Amendment Regulations 2011
MED-ESAAR2011HB~001
ATTENDING A WCA
Attending a WCA is scary, and Atos are known to merrily lie in recording evidence. So firstly, NEVER GO ALONE. Ideally, take along a benefits advocate but if this is not possible, take a friend, family member or carer. Atos have tried to argue that you are not allowed to record your WCA, but this is not true, you have the right to do this whether on film or on tape. It’s also a good idea to take notes or have your advocate/carer/friend take notes as they WILL lie/distort what you say. The assessor may well be very friendly and chummy but they are the tool of the f***ing oppressor and NOT TO BE TRUSTED. Don’t fall into the trap of saying what you think they want to hear or agreeing when they faux-encouragingly say things like, ‘Ooh, you’re doing really well aren’t you?’ THIS IS A TRAP TO TWIST YOUR WORDS AND STOP YOUR ESA. Please be aware – and I know this is horrific – that if you turn up clean, wearing makeup or with children in tow this will be used against you as evidence you are able to cope. It’s up to you what you do about that last piece of information – I know it’s disgusting and demeaning and based on lazy stereotype, but they want their pound of flesh, and if you look clean, tidy and are fairly articulate, it increases the likelihood of being found fit for work. Excellent advice/information on this here: http://www.mind.org.uk/assets/0001/3733/Mind_ESA_factsheet_4.pdf
After your assessment, and whatever the result, ALWAYS GET A COPY OF THE REPORT. This is your legal right, and will show you any lies and inconsistencies. Even if you have been placed in Support Group and/or don’t wish to appeal, these should be challenged, as if not they will be carried over into the next assessment as fact. And if you are appealing, this is where to start, because there WILL be lies and distortions.
OBTAINING MEDICAL EVIDENCE
If you think the decision on your case is wrong, this is the time to gather strong supporting medical evidence. Your GP will probably be your first port of call. This is the advice given to me by an advocate: If you need to appeal then it is time to collect as much supporting information as you can. Nothing you say will be listened to unless it is backed up in a letter from a doctor. Start off by writing down everything about your condition that means you need the benefits. Then go to your GP and show them your list and ask them to write a letter saying the same things. If the letter you get back is not what you want then you have the right to a second opinion. Find another GP (this will be quicker if you can just ask to see another GP from the same practice) and do the same thing. If you have physical problems and don’t already have a physiotherapist I would recommend paying a private one for a one off assessment (if you can afford it). Again you need to know in advance exactly what you want the letter to say and just ask them to write it. If you have a mental health problem and don’t already see a mental health professional, again I recommend paying privately for a one off assessment. If you see any other doctors or other medical professionals for your condition you need to try and get a letter from each one. This might be even harder as appointments may be months apart. You will need to ring their office and email them everyday until they give you the letters you need. This is the time you need an advocate the most, making so many calls and writing so many emails and letters will be very scary.
Additionally when I was gathering evidence for my own appeal, I was told by mental health services that I had to get evidence only from my GP, as they had a policy of not getting involved themselves. I don’t know if this is a widespread policy, but again was told by an advocate to challenge this and go higher up the chain of command, as it is of dubious legality to refuse to provide requested evidence of a patient’s engagement with services.
GETTING YOUR CASE LOOKED AT AGAIN
You can ask the DWP to look at the decision on your claim again before going to appeal, and this is when it is vitally important to have strong medical evidence. They won’t change the decision on a claim unless you can demonstrate to them they will not win. Whilst having your case looked at again (and until you have appealed if they decide against you again at this stage) you may have to accept a cut in benefit of 40% (unless you have been placed into the Work Related Activity Group, in which case the rate is more or less the same depending on what premiums you get – the difference between WRAG and the Support Group is largely not a financial one, rather in the discrepancy between what you are required to do to continue to receive benefit. This includes work focused interviews and possible workfare placements, which is nonsensical, because if you are unfit to work for pay you are similarly even less able to work for free. I therefore urge you to get your decision looked at again and go to appeal if necessary if placed in the WRAG). The options available are to take ESA on this so called ‘restricted rate’ or claim Jobseeker’s Allowance in the interim; however, I would counsel strongly against the latter option, as in the DWP’s Orwellian world this could be used against you to argue you are fit for work; even though they may have forced your hand, they will argue that by claiming Jobseeker’s Allowance you have declared yourself fit for work, as it is a requirement of JSA to actively seek work and accept it should it come your way. If and when you win your appeal, you will be paid the monies owed to you (the 40% cut) in a backdated lump sum. (Important note: The rules on reconsideration may be changing, so please double check with Welfare Rights or CAB for the most up to date information, although we will always share what we know on this blog as soon as we know it).
GOING TO APPEAL
If you run out of time before the appeal then don’t worry, you have the right to a second appeal as long as you have more supporting evidence. As long as you have everything you think they need to hear written down and signed by a healthcare professional then your appeal will be handled as fairly as possible. The DWP and Atos are anything but fair, however the rate of overturned appeals suggests tribunals are much more so (see below).
You can ask for an appeal to be heard by post or in person. Although it is incredibly daunting to appeal in person, it is much the better idea as postal appeals have a very low success rate, whereas seeing you and your condition in person can be more compelling than any paper evidence.
At appeal there is actually great cause for optimism. Forty per cent of decisions are overturned on appeal with that figure rising to 80% when the claimant has received advice from organisations such as CAB and Welfare Rights, or has an advocate to represent them. Again, don’t go alone and take a representative of an advice or advocacy organisation if you possibly can.
COMPLAINTS
The DWP and Atos have a legal obligation to investigate every complaint. If they have treated you unfairly, denied your dignity, been rude or bullying, or any one of the myriad and multiple ways they routinely mistreat people, complain. Again, an advocate or advice organisation can offer help drafting complaints and getting them chased up. You can also complain to the Health Ombudsman; the General Medical Council (who have publicly condemned the WCA as being a desperately flawed tickbox exercise); and the Human Rights Commission. Clogging up the Atos/DWP system with complaints may have the added bonus of sending them further into disarray, leaving them open to even further criticism and hopefully being found not fit for purpose (which they patently aren’t).
ATOS origin UK Chief Executive-Ursula Morgenstern
0207 7830 4444
email-ursula.morgenstern@atosorigin.com
DWP – in first instance, write to your local branch. If you’re not happy with the response, here’s some info on how to take it further: https://www.gov.uk/complain-jobcentre-plus
GENERAL MEDICAL COUNCIL
3, HARDMAN STREET
MANCHESTER
M3 3AW
TEL : 0161-923-6200
FAX : 0161-923-6201
EMAIL : gmc@gmc-uk.org
Health Ombudsman: http://www.ombudsman.org.uk/make-a-complaint
Human Rights Commission: http://www.equalityhumanrights.com/about-us/contactus/
In addition to these avenues, Michael Meacher MP is actively seeking to collect the experiences of people mistreated by the DWP and Atos in order to hold them and the Government to account on their bullying and hounding tactics. I shared my own story with him and found him to be genuinely concerned for me and others in my position. His contact details can be found here: http://www.michaelmeacher.info/weblog/contacts/
Finally, a Manchester campaign, Europia, is also collecting stories from victims of the humiliating, demeaning, flawed and unfair WCA as evidence for a shared and co operative response with the lived experience of those affected at its heart. Here’s their newsletter: europianewsletter and here’s their WCA feedback form if you’d like to share your story: WCA Feedback Form
LEGAL REDRESS?
Europia’s newsletter (see above) has a legal guidance section:
7. Legal Guidance
The Public Law Project is an independent legal initiative in London which undertakes casework on behalf of disadvantaged people and communities.
Its casework priorities are challenging gate-keeping problems and poor decision-making impacting on disadvantaged groups, responding to recurrent and systematic unfairness in administrative decision-making and opposing Discrimination under the Equality Act 2010, Article 14 EHCR and EU Law.
It has pressed for Judicial Reviews on WCAs in co-operation with the Mental Health Resistance Network and a decision is pending on a recent judgement.
The British Institute of Human Rights provides some excellent guides on Human Rights in various equality areas eg disability, asylum-seekers.
BIHR is holding a Free Conference at the Mechanics Institute on ‘Human Rights and Mental Health’ on 25th April. Apply via BIHR web-site.
Additionally, many solicitors are now looking to take on test cases of people mistreated by the DWP and Atos. Locally, I know of Pannone’s in Preston. Ask around, research local solicitors online. There is a hugely strong legal case to be made. The Government, DWP and Atos are breaching the Human Rights Act, specifically:
Article 1.
All human beings are born free and equal in dignity and rights.They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
Article 2.
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.
Article 3.
Everyone has the right to life, liberty and security of person.
Article 4.
No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.
Article 5.
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
Article 6.
Everyone has the right to recognition everywhere as a person before the law.
Article 7.
All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.
Article 8.
Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.
Article 10.
Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.
Article 12.
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
Article 17.
(1) Everyone has the right to own property alone as well as in association with others.
(2) No one shall be arbitrarily deprived of his property.
Article 22.
Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.
Article 25.
(1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
(2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.
Article 28.
Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.
Article 30.
Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.
Just citing those articles is quite shocking, in that the government are breaking so many of them; no wonder they want to scrap it 😦
So, we’ve reached the end of the behemoth. I hope it’s helpful. And it bears saying again: YOU ARE NOT ALONE.
Tags: ATOS, Disability Rights, DWP, ESA, Human Rights, Mental Health, WCA
Last night the BBC ran a pitiful report which was little more than an advert for the welfare-to-work sector in which they begged the tax payer for yet more money.
kickingtoryassonwelfare 