A guide to Work Capability Assessments and preventing benefit reduction
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For those of us who have been receiving benefits on grounds of mental health problems, whether we receive Incapacity Benefit and/or Income Support and/or Severe Disablement Allowance, over the next three years, starting in February 2011, our ability to work will be reassessed and we’ll be moved onto either Employment Support Allowance (ESA) if we are deemed not yet ready for work or, if we are deemed fit for work, onto Jobseekers Allowance (JA). Most people put onto ESA will have to engage in work related activity consisting of interviews to assess how we can prepare for work, for example, can we be retrained, etc., and this will involve about four or five interviews over a period of 13 weeks. ESA assessments are carried out by a private company called Atos Health who is paid by the government. They won’t reveal if they have targets to meet, unsurprisingly.
Reassessments are planned to happen at a rate of 10,000 claimants a week but we don’t know yet in what order we will be called although it is rumoured that it will be done by regions. ESA has been in place for new claimants since 2008 and assessments are already well behind schedule. Most of us will be sent a questionnaire and then have to go for an interview called a Work Capability Assessment (WCA) which will relate, in part, to the answers we have given in the questionnaire.
It is widely accepted that the tests are nonsensical for those of us with mental health problems. Instead of aiming to get an accurate picture of our ability to work, they are designed to ensure that as many of us as possible fail the test even though they know that may never get a job due to stigma, no jobs around or just not being well enough to work! Many of the new claimants since 2008 have dropped out from making their claim before it is completed and the reasons for this are not yet clear although it may be that they simply had short term illnesses and recovered before the process was concluded. However, the government are trying to use the high dropout rate as proof that lots of claims were bogus in the first place.
Now notorious for their complexity, inaccuracy, inappropriateness for mental health conditions and the fact that they only take a ‘snapshot’ of our problems at a specific time, a number of charities have formed a coalition, led by the Papworth Trust, to lobby the government over the iniquitous WCA. The Citizens Advice Bureau is also expressing serious concerns to the government and WCAs are now under review. Although some 70% of claimants (this includes people with physical problems as well as people with mental health problems) are found fit for work, such is the inaccuracy of the test that many claimants who are turned down win on appeal. So don’t panic if you’re turned down; it’s all part of the flawed process. You might not have to appeal, but be prepared. 40% of appeals are successful if there is no legal advice and this rises to 70% with legal advice but legal advice is expensive. By all accounts, though, the appeals are fairer and more thorough.
WARNING: The tests are designed to trap people; they are laced with pitfalls, so the first thing to do is when you get the letter is: GET HELP, DON’T TRY TO GO IT ALONE. We believe that claimants need advice and emotional support throughout the whole process of making this claim, especially after they receive a bad decision, and that this help should be a legal right. In the meantime, I would suggest we start learning about the tests now. We can familiarise ourselves with the questionnaire and the mental functions we will be assessed on. These are:
1. Learning or comprehension in the completion of tasks.
2. Awareness of hazard.
3. Memory and concentration.
4. Execution of tasks.
5. Initiating and sustaining personal action.
6. Coping with change.
7. Getting about.
8. Coping with social situations.
9. Propriety of behaviour with other people.
10. Dealing with other people.
We will receive points for each of these functions we have difficulty with and will need 15 points to pass the test. So we need to think of everything that hampers our ability to carry out these functions.
Are we distracted by hearing voices? Do we find it difficult to motivate ourselves due to depression? Do we have difficulty controlling our temper and so lash out at people? Do we do risky things because we feel depersonalised? Is our memory messed up, maybe we’ve had ECT or just are too stressed with anxiety to take things in and remember them? Do we feel that someone else is controlling us and making us do things we don’t want to do? Do we get ‘high’ and behave in a way that might be thought of as inappropriate? Do we have panic attacks when we go out? Are we so suspicious of others that we can’t cope with social contact? Do we believe things that others don’t believe; things that make us behave in ways that others don’t understand and cause us to be unable to focus on the same things that those around us are focusing on? Don’t forget that medication may also affect us, for example, by making us very drowsy, so we have to mention that. Also, things like self medication with street drugs and alcohol will impact on our functioning. And sleeping problems can leave us exhausted and accident prone.
These are just a few things that come to mind. We each know the specifics of our own problems. Think about these and don’t be afraid if anything you say seems unusual. If it happens to you, it’s valid. Look at each function to be assessed on the list and think of how your own particular problems affect your functioning in each of them. So think, which of these functions do I have problems with, what aspect of it affects me when doing this activity and how does it affect me? We should include everything we can think of. It’s all relevant. And we mustn’t minimise! The point is, they are looking for specific things and we need to make our answers relevant to what they are looking for.
With mental health problems it can be difficult to recognise what exactly it is that impairs our functioning and in what way that functioning is being impaired. Often we think it’s just us, we can’t motivate ourselves because we’re useless, unmotivated people, or we feel the world is threatening us because the world simply is a threatening place. We don’t always recognise these things as being about our mental health so we might want help to identify what our problems are. We can start thinking about these things now and discuss them with others who are on our side. We can rehearse what we need to say and, if possible, we can do some research. I’ll include websites we can use at the end.
Don’t go to the interview alone,[/b] they will take this as proof that you can cope with getting out and about without help, but, far more importantly, you must take someone because you need a witness to what happens at the medical! Try to take someone involved in your care, if not, just take someone. Don’t go to the interview by public transport if you are claiming that you can’t cope with public transport and it seems to be a good idea that you do claim this. However, if you try to claim expenses for a cab, you will have to produce a doctor’s letter confirming that you can’t use public transport.
Be wary of what may seem like friendly questions. ‘Do you like to watch TV?’ they ask, smiling. If you answer ‘Yes’, that will be taken as evidence that you have no problems concentrating. However nice the interviewer may seem, treat every question as a trap, no matter how harmless or casual it may seem.
[b]Don’t go all dolled up! Don’t be on your best behaviour! If you don’t want to have eye contact with the assessor, then don’t. You’re not there to make a good impression; it’s not a job interview. You’re there to let them know how bad things are for you at worst. If you have a fluctuating condition, they are looking at how you are most of the time. Feeling suicidal 49% of the time isn’t enough; you’ve got to be suicidal 51% of the time or more, so, if this is the case, make sure you let them know. If sometimes you can’t concentrate enough to complete a task, let them know that it’s a problem more often than not. It is intended that you should be able to complete a task reliably, repeatedly and safely. If you can’t do a thing most of the time, then it is deemed that you can’t do it sufficiently for work.
Fluctuations that can be predicted may make you more suitable for work. For example, if you always feel worse in the morning and pick up in the afternoon, this will make you seem more employable as you could work in the afternoons. If you don’t know when you’re going to be bad, if it’s unpredictable, this makes you less employable. Don’t forget, the law that requires employers to make reasonable adjustments for disabled people can be our friend if we want to work but it can be used to make it difficult for us to argue that we can’t fit into the work situation if we feel unable to work. In this case, it’s better if our condition is unpredictable.
Don’t assume they know what you’re talking about when you tell them about mental health difficulties because, amazingly, the assessor is not a psychiatrist, so spell things out if they will let you, if not, complain straight away, don’t wait till you receive the decision. If you are unhappy about any aspect of how the interview was conducted, (that it was rushed is a common complaint, apparently) send in a complaint immediately, it may help you at an appeal. The person who assesses you will not make the decision but they will produce a medical report and the decision will be made based on this report. But remember, it’s not all based on what you say, they are told to observe your behaviour at the assessment to see if it is consistent with the things you have told them. They will observe things like how well you concentrate at the interview and so on. But don’t overdo things, no ham acting, be yourself, but at your worst.
IMPORTANT: Have all of your evidence prepared in advance: medical notes, GPs’ letters, Community Psychiatric Nurses’ letters, Day Centre key workers’ letters, Consultants’ letters and anything else that might be relevant. As they usually don’t look at them at the medical, send them in well in advance. (Send copies rather than originals as the DWP are famous for losing things). You are advised to do this as it may be your only chance to give a full account of your condition. Send it in before the medical, directly to the decision maker, and not with your completed questionnaire. In theory, the decision maker has to take account of all of the evidence provided.
Whatever the outcome, even if you’re claim is successful and you’re not found fit for work, make sure you get a copy of the medical report they produce as you will need it to appeal or to refer to when claiming other benefits (e.g. Disability Living Allowance (DLA) which may be decided upon based on this report. DLA will be subject to medical assessments from 2013). Be aware that your responses may be used to reassess you DLA now, so what you say should be consistent with what you have stated in your current DLA claim.
When you get a copy of your medical report, look for factual inaccuracies (which apparently are common), omissions, conclusions based on wrong assumptions and pinpoint things that you weren’t given time to explain properly. Your witness is important; they may remember things you can’t. This may be vital to your appeal. If you are found fit for work your benefits will stop and you will have to claim JSA. If you appeal, you will receive basic rate ESA while the appeal is active and appeals can take several months. You can ask for the decision be revised before putting in a formal appeal but this will delay the start of the appeal process and you will only get ESA from when the appeal starts.
One thing that may be of value to us is that we can be excused from work if certain exceptional circumstances apply to us, one of which is if working would put us or others in danger. Would it make us suicidal or would we be dangerously accident prone or likely to attack someone? (Someone like George Osborne, maybe?)
Finally, if we are turned down and our condition changes or deteriorates, we can apply again straight away.
The Citizens Advice Bureau is a good place to start but they will be flooded with requests for help next year so you may have to look elsewhere. Again, be prepared. Have an up to date list of where you can get advice locally well in advance of receiving the letter. You don’t know when it will arrive.
Does your Community Mental Health Team have a Benefits Advisor?
Does you GP’s surgery have a Benefits Advisor?
Where are your local advice centres? Find out now and keep this information up to date.
Disability Alliance produce excellent factsheets on all aspects of claiming ESA including Factsheet F31, which gives an overview of ESA and Factsheet F33 which gives information on the activities, descriptors and points. Also ask for their Disability Rights Handbook and Employment and Support Allowance Guide. You can obtain these by phoning 020 7247 8776 (this is not an advice line) or by faxing 020 7247 8765 or at http://www.disabilityalliance.org/fact.htm
You can contact Papworth Trust on 0800 952 5000 option 2 for more help with WCAs but I don’t know how thorough their help will be. Ask them about the coalition’s activities and how you can get involved while you’re at it!
Benefits and Work have an excellent website that can help you understand the whole process, avoid the pitfalls and advise you on how to get the best possible result for claiming ESA on mental health grounds. You can get basic advice on their website for free but for access to their full website you need to subscribe. Yearly subscription is approximately £19 for individual claimants and £99 for organisations which entitles you to full access to the website, news and updates. It’s funded entirely by subscriptions so is completely independent. Mad Pride asked them for cheaper subscription rates for people coming from Mad Pride but they weren’t willing to do that. However, I think it is worth subscribing or being friendly with someone who does subscribe. They don’t offer telephone advice.
Most importantly, get a copy of the DWP Employment and Support Handbook which is a guide to carrying out WCAs for use by healthcare professionals. It is over 200 pages long but full of stuff we need to know. You can get it from Disability Alliance or Benefits and Work. The Department of Work and Pension’s own website has tons of factual information but it’s not always easy reading.
Professor Malcolm Harrington, CBE, has been asked by the Secretary of State to undertake an independent review of the WCA and has been asking for evidence from organisations and individuals who have information on how WCAs are working. The closing date for evidence is 10 September 2010 but I think we can send our evidence in anyway. The fact that most of us have not had WCAs yet doesn’t mean we don’t have experience of them. We’ve had all the worry, fear and nightmares! And all to be coped with based on rumours and whispers, with no factual information. Why hasn’t everyone on disability benefits received a letter telling them about the changes? We can point this out to Professor Harrington.
I would argue that there are six vital things we need to communicate to him.
1. That we need support and advice to cope with the process and should have a legal right to this.
2. We are concerned that the affect on our mental health of having to work is not taken into account in the assessment. Our present level of mental well being is a result of the supports and lifestyles that we have developed, some of us over many years. We will probably have to give up the support systems we have been using, e.g., attending day centres, therapy, etc. This, along with the actual process of being forced to work, the stress of work if we’re lucky enough to get a job or the problems we may have to face if we have to live on less money, may have a deleterious effect on our mental health. This will be traumatic for most of us and we are concerned that some of us may choose suicide if we become too distressed.
3. We have been living with financial insecurity for three years now and we want him to acknowledge the unacceptable levels of distress that this has caused us. We have done nothing to deserve this.
4. Many of us have financial commitments that are based on our present benefits which we have been receiving for many years and we may need financial support and advice to adjust to lower benefits if we have to.
5. We want to know that we will receive support if we are turned down for this benefit after many years of being on disability benefits. Will the government be culpable if someone kills themselves as a result of this process?
6. We are angry with the deplorable way the government has primed the public for benefit cuts to disabled people by constantly expressing contempt for the tiny minority who are benefit cheats, making benefit claimants appear and feel guilty, resulting in hostility towards people claiming benefits. Feelings of guilt are a common symptom of depression and some depressed people kill themselves because they feel they are a burden on society.
You can contact Professor Malcolm Harrington CBE at:
WCA Independent Review,
Department of Work and Pensions,
Floor 6, Section B,
Or email: email@example.com
Anything personal that you say to him may not be kept confidential, so don’t say anything that you don’t want to be shared.
Note: The number of descriptors has now been reduced - when we know what the new ones are, we will amend this document.
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