Click here to visit the Disabled UK Facebook Group For more support and information Disabled or Non-Disabled your welcome

Click here to visit the Disabled UK Facebook Group For more support and information Disabled or Non-Disabled your welcome *Please note that all infor...
Author: Gladys Flynn
4 downloads 1 Views 1MB Size
Click here to visit the Disabled UK Facebook Group For more support and information Disabled or Non-Disabled your welcome

*Please note that all information on this advice sheet should not be taken as any form of legal counsel or professional council. Each person’s circumstances are different and if you are unsure should always seek professional advice. Please not that Information changes quite quickly when it comes to the DWP we will aim to keep this document up to date however please make sure you double check it, information within the appeals process and assessment doesn’t change that often. Also please note that the appeals process is the same for DLA and ESA the only difference is you’re not having to prove your capability for work at a DLA assessment or appeal, with a DLA assessment you will have to take in everything in this document and the assessment is roughly the same just to instead they want to prove your disability instead of you capability to work.

1

Contents •

What is Employment and Support Allowance



Who can get Employment and Support Allowance



Showing you have limited capability for work



Appealing against an Employment and Support Allowance decision



Work-focused interviews



Work-related activity



How to claim Employment and Support Allowance



When you can be sanctioned



How much is Employment and Support Allowance



Working while getting Employment and Support Allowance



Getting Employment and Support Allowance backdated



Waiting days before Employment and Support Allowance is paid



How is Employment and Support Allowance paid



Civil penalties for causing an overpayment



Employment and Support Allowance - change of circumstances and fraud



Discrimination when claiming Employment and Support Allowance



Before the assessment



Filling in the forms



Who should be assessing you



What to ring and inform ‘who gives ATOS’ of



Things to prepare before your appointment



The assessment



After the Assessment



What to do if your denied ESA (appeal process)



Making a Complaint to the GMC about your assessor



Making a Complaint to the Atos about your assessor



Making a Complaint to the DWP about your assessor



What to include in your appeal



Regulations 29 & 35



To qualify for the Support Group;



To qualify for the work related activity group



FORMS OF DISCRIMINATION & WHAT TO DO



The Tribunal How incapacity for Work is assessed

• • •

The tribunal get medical evidence of your difficulties The tribunal your explanation of your difficulties The tribunal key points for when you attend the Tribunal

2



The appeal day



After the appeal



What to do if your tribunal is unsuccessful Upper Tribunal

• •

Resources Thank you section

What is Employment and Support Allowance Employment and Support Allowance (ESA) is for people who:



Can’t work because of sickness or disability, and aren't getting Statutory Sick Pay.

There are two types of ESA:



Contributory ESA, which you can get if you have paid enough national insurance contributions



Income-related ESA which is paid if your income and capital are low enough.

You may be able to get both contributory ESA and income-related ESA, depending on your circumstances. For both types of ESA, you will usually have to have various tests to confirm that you have limited capability for work. In some circumstances, you can only get contributory ESA for up to 365 days. For most new claims, ESA replaces Incapacity Benefit and also Income Support for people getting it because they can't work due to sickness or disability. If you are already getting Incapacity Benefit or Income Support because of sickness or disability, you can continue on that benefit, although your claim will be converted into ESA at some point.

Who can get Employment and Support Allowance To get Employment and Support Allowance (ESA), you must be 16 or over and under your own state pension age. You must be unable to work because of sickness or disability and you must NOT be entitled to Statutory Sick Pay. To check when you will reach state pension age, see the pension age calculator on the Direct.gov website at www.direct.gov.uk.

3

To get ESA, most people will need to have a medical examination to decide if they have limited capability for work. You can't get ESA if you or your partner are getting Income Support, income-based Jobseeker’s Allowance or Pension Credit. You have to be ordinarily resident in the UK. For income-related ESA, you must not have any immigration controls on your stay here that would stop you getting the benefit. You can continue to get ESA if you go into hospital.

Who can get contributory ESA To qualify for contributory ESA, you have to have paid enough national insurance contributions. However, this doesn't apply if the DWP converts your Incapacity Benefit or Severe Disablement Allowance into contributory ESA. If you're entitled to contributory ESA, you may also be entitled to income-related ESA depending on your circumstances. In some circumstances, you can only get contributory ESA for up to 365 days. If your contributory ESA stops due to this time limit, you may be able to get: •

income-related ESA, depending on your circumstances



other means-tested benefits, such as housing benefit or council tax benefit, or an increase in these benefits if you are already claiming them



national insurance credits if you continue to have limited capability for work. It is important to carry on getting national insurance credits if you can, because they may help you to qualify for other benefits such as state pension, or to get an increase in benefits such as housing benefit, or to requalify for ESA if your condition deteriorates.

Income-related ESA To get income-related ESA, your income will be compared with the amount that the government thinks is enough for you to live on. If your income is less than this amount, you will get the difference between your income and the amount the government thinks is enough for you to live on, depending on your circumstances. If your income is equal to or more than this amount, you won't get income-related ESA. You can't get any income-related ESA if you have savings of more than £16,000. If you have a mortgage and qualify for income-related ESA, you may get help with some of your housing costs, for example, the interest due on the mortgage loan. If you pay rent, you should check if you can get Housing Benefit. If you get income-related ESA, you will get the maximum amount of Housing Benefit allowed for your circumstances.

4

If you get income-related ESA, it is not time limited. You can carry on getting it for as long as you meet the conditions for it.

Showing you have limited capability for work To get Employment and Support Allowance (ESA), you usually have to prove you cannot work by sending in medical certificates to the Department for Work and Pensions (DWP). In the first 13 weeks of your claim, you will usually have to have two tests which, together, make up what is called the work capability assessment. These tests are: •

the limited capability for work assessment



the limited capability for work-related activity assessment.

Further information about the work capability assessment is on the Direct.gov website at www.direct.gov.uk. In Northern Ireland, see the nidirect website at www.nidirect.gov.uk.

The limited capability for work assessment Most people will have a face-to-face medical assessment with a healthcare professional to decide if they satisfy the limited capability for work assessment. The medical assessment will look at your ability to perform a range of particular activities. It looks at both physical factors and mental health problems you may have that make you unfit for work. You can find out more about what to expect at a medical assessment on the Directgov website at www.direct.gov.uk. In Northern Ireland, see the nidirect website at www.nidirect.gov.uk. If you do not satisfy the limited capability for work assessment, you will not qualify for ESA. You could consider applying for Jobseeker's Allowance (JSA) instead. You may also want to appeal against the decision that you are capable of work. Some people don't need a face-to-face medical assessment. If you have certain conditions, receive certain treatments or have a severe disability, you will automatically be considered to have limited capability for work. For example, people who are terminally ill and women who are pregnant and there is a serious risk to either them or their child if they work, don't need a face-to-face assessment.

5

The limited capability for work-related activity assessment The limited capability for work-related activity assessment is usually carried out at the same time as the limited capability for work assessment although the test is slightly different. The point of this test is to decide how much money you will get and what further activities you will need to do to help you get back to work. After this test, if you have a severe disability, you will probably be put in a group known as the support group. After the first 13 weeks of your claim, you will get an extra amount in your ESA known as the support component. If you are not in the support group, you will be put in the work-related activity group. After the first 13 weeks, you will get an extra amount in your ESA known as the work-related activity component. If you are put in the work-related activity group, you can only get contributory ESA for up to 365 days. If you are put in the support group, your contributory ESA in not time limited in this way. Incomerelated ESA is not time limited for either group.

If you are told your benefit is to be converted to ESA If you are currently getting Incapacity Benefit, Severe Disablement Allowance (SDA) or Income Support paid on disability grounds, you will have a work capability assessment before a decision is made to convert your current benefit into ESA. If your benefit is converted into ESA, you will not have another work capability assessment during the first 13 weeks of your claim. You will get the support component or the work-related activity component from the beginning of your ESA claim, rather than after 13 weeks.

Appealing against an Employment and Support Allowance decision If you don't agree with an Employment and Support Allowance (ESA) decision on your capability for work, you have the right to appeal against it. You must appeal within one month, so you will need to act quickly if you want to do this. You can: •

try to get more information about why your case was turned down. There may be a good reason for refusing your claim

6



ask for the decision to be looked at again. This may lead to the decision being changed



appeal against the decision, either straight away or after the decision has been reconsidered.

For more info on appealing please see the what to do if your denied ESA section on page…..

What happens to your ESA during your appeal? If you are waiting for an appeal to be heard, you can either claim Jobseeker's Allowance (JSA) or continue to get the basic rate of ESA, depending on your circumstances. You can only continue to get ESA if you are appealing against a decision, and not if you asked for a decision to be looked at again. If you want to get ESA while you're appealing, you should tell the Department for Work and Pensions (DWP). You must also continue to provide medical certificates. You will receive the same amount of money, whether you claim JSA or remain on ESA while an appeal is being decided. If you claim JSA this should not affect your appeal. If you claim JSA you will have to show that you are available for, and actively seeking, work that you are capable of doing.

Work-focused interviews After your work capability assessment, you will usually be expected to take part in an initial workfocused interview. However, this does not apply if: •

you're put in the support group following the limited capability for work-related activity assessment, or



you've reached state pension age, if you're a woman, or



you've reached the state pension age of a woman with the same date of birth as you, if you're a man, or



you're a single parent, you're responsible for a child under one and the child lives with you.

The work-focused interview will usually take place about eight weeks after your initial claim. If you are found to have limited capability for work but you are entitled to the work-related activity component you will be expected to have a further five work-focused interviews. These will usually take place every month. A personal adviser will discuss your work prospects, the steps you are prepared to take to move into work and the support you can get. An interview can sometimes be waived or put off until later.

7

Work-related activity If you are in a work-related activity group, you may also have to undertake work-related activity as well as work-focused interviews. However, this does not apply if you are: •

a lone parent with a child under 5 (lone parents with a child under 13 only have to undertake work-related activity during normal school hours)



a carer receiving Carer's Allowance or a carer premium as part of your ESA claim.

Work-related activity can be things such as voluntary work, work trials, or a training programme but you won't have to apply for jobs or undergo medical treatment.

How to claim Employment and Support Allowance You are encouraged to make your initial claim for Employment and Support Allowance (ESA) by telephoning Jobcentre Plus on: 0800 055 6688 or textphone: 0800 023 4888. There is also a Welsh language line number on: 0800 012 1888. In Northern Ireland, phone: 0800 085 6318 or if you have hearing or speech problems: 0800 328 3419. You will be sent a statement about your claim which you must check but you do not have to sign it or return it. You will have to gather any further evidence required including a valid medical certificate. It is also possible to make a claim in writing. You can download a claim form at www.direct.gov.uk, or in Northern Ireland from www.nidirect.gov.uk. You must provide your national insurance number when you make a claim and proof that it belongs to you. You will also have to provide the national insurance number of your partner living with you if you are claiming income-related ESA. If you do not have a national insurance number, you should be given one when you make your claim. During the first 13 weeks after you claim, you will be usually asked to fill in a medical questionnaire called ESA50. You can get a copy from the Direct.gov website at:www.direct.gov.uk. You must return it to the Department for Work and Pensions (DWP) within four weeks. During the first 13 weeks after you claim, you will usually be called for a face-to-face medical assessment with a healthcare professional. It is very important that you go to this as you may not be entitled to ESA unless you attend. The person carrying out the assessment will give you points if you meet various conditions called descriptors. If you score 15 points or more in each assessment, you will be considered to have limited capability for work-related activity and you will be put in the support group of claimants. You may sometimes be put automatically in this group, depending on your personal circumstances, for example, if you are having chemotherapy. If you are placed in the support group, you will not have to have a work-focused interview or undertake work-focused activity. However, you can choose to have these if you wish.

8

If it is decided that you have limited capability for work and you are placed in the work-related activity group of claimants, you will have strict work-related conditions imposed which you must meet in order to continue receiving the full rate of ESA. If you fail to do this, you may be sanctioned. A sanction means that you may lose some of the money that you would otherwise have been paid.

Help with completing your ESA50 medical questionnaire You can get help with completing your ESA50 from the National Association of Welfare Rights Advisers (NAWRA) website. The website has a sample copy of the form which explains the questions you'll be asked and gives examples of what you can include when writing your answers. To view the sample form, go to the NAWRA website at www.nawra.org.uk. You can contact your local disability rights office, Your local CAB office or a independent benefits law solicitor.

If your benefit is converted to ESA You do not need to make a claim if the DWP converts your Incapacity Benefit, Severe Disablement Allowance (SDA), or Income Support paid on disability grounds into ESA. Instead, the DWP will automatically transfer you to ESA and your current benefit will stop. However, you will still have to provide information for the DWP to work out whether you are entitled to ESA. For example, you will have to fill in a limited capability for work questionnaire. Please remember if your Incapacity Benefit is converted to ESA your payments are protected while you are claiming ESA up until the year 2020 and you will continue to receive the same amount on ESA as if you would while you were on Incapacity Benefit (this includes age and yearly increases)

When you can be sanctioned A sanction means Jobcentre Plus reduces your ESA. You can only be sanctioned if you are placed in the work-related activity group and you are required to go to work focused interviews or do workrelated activity. Jobcentre Plus can't sanction you if you're someone who doesn't have to go to workfocused interviews or do work-related activity. You cannot be sanctioned if you are in the support group. You can be sanctioned if you don't take to take part in a work-focused interview without having a good reason for not doing so. It can also happen if you don't take part in a work-related activity you have been asked to do, for example go on a training course, and you didn't have a good reason.

9

If you had a good reason, you should not be sanctioned. For example, if you were not able to attend because you were too sick, this would be a good reason. It is important you tell the Jobcentre Plus this straight away. This is known as showing you had good cause. If you are sanctioned, this will continue until you take part in a work-focused interview or undertake a work-related activity you were asked to do. After this, the sanction will continue for a further period of one, two or four weeks, depending on whether this is the first, second or third time you haven't complied with the Jobcentre requirements. If you don't agree with the decision to sanction you, you can appeal against it. You can also ask for a hardship payment while you are appealing or waiting for your sanction to stop.

How much is Employment and Support Allowance How much Employment and Support Allowance (ESA) you can get depends on whether you are entitled to contributory ESA or income-related ESA or both. It also depends on whether or not you are in the first 13 weeks of your claim. This is because you are entitled to the support component or the work-related activity component if you continue to get ESA after 13 weeks. Some people do not have to wait 13 weeks before they can get a component, for example, people who are terminally ill.

How much is contributory ESA If you are only entitled to contributory ESA, you will only get a basic allowance in the first 13 weeks. This amount is less if you are under 25. After the first 13 weeks, you will also get a support component or a work-related activity component. Also, if your basic allowance was smaller because you are under 25, it will now be the same as for everyone else. Your contributory ESA may be reduced if you're getting an occupational or personal pension. If you get the work-related activity component, you can only get contributory ESA for up to 365 days. If you get the support component, your contributory ESA is not time limited.

If your benefit is converted to contributory ESA If the DWP converts your Incapacity Benefit or Severe Disablement Allowance (SDA) into Contributory ESA, you will get a basic allowance. If you are under 25, the amount will be paid at the higher rate. If your benefit is converted into ESA, you will also get a support component or a work-related activity component from the beginning of your claim, rather than after 13 weeks.

10

You may also be entitled to an amount known as a transitional addition. This is paid so you won't get less money than you were getting before. However, this money will be reduced over time and will eventually end. If your benefit is converted into contributory ESA and you are placed in the work-related activity group, your 365 days of possible entitlement will start on the first day for which you get ESA.

How much is Income-related ESA You will be entitled to income-related ESA if your income is less than the amount the Government thinks you need to live on. You'll get a basic allowance which tops up your income to the amount that the Government thinks you need. This basic allowance is less if you are under 25. There are certain rules that are used to work out how much income you have. These include that some types of income, for example child maintenance, are ignored when working out your income and how much income-related ESA you should get. On top of the basic allowance, you may qualify for some premiums, for example, if you are severely disabled or if you are a carer. You may also be able to get some money towards your housing costs if you own your own home. After the first 13 weeks: • •

you will be entitled to a support component or a work-related activity component if your basic allowance was smaller because you are under 25, it will now be increased.

For the current rates of ESA, go to the Directgov website at: www.direct.gov.uk. In Northern Ireland, go to:www.nidirect.gov.uk. Working out your income and how much income-related ESA you should get can be complicated. If you think you're not getting the right amount, you can get help from an experienced adviser, for example at a Citizens Advice Bureau, disability rights centre or via the Direct.gov site and use their benefits calculator - Direct.gov

11

If your benefit is converted into income-related ESA If the DWP converts your Income Support based on disability grounds into income-related ESA, you will get a basic allowance. If you are under 25, the amount will be paid at the higher rate. You will get a support component or a work-related activity component from the beginning of your claim, rather than after 13 weeks. You may also be entitled to an amount known as a transitional addition. This is paid so you won't get less money than you were getting before. However, this money will be reduced over time and will eventually end. Back to top

Working while getting Employment and Support Allowance Although Employment and Support Allowance (ESA) is usually paid to people who are too ill or disabled to work, you may be able to get it even if you are doing certain types of work. Examples include working as a councillor, being a carer and doing work known as permitted work. Permitted work is work that can be done without affecting entitlement to ESA. The rules about permitted work are complicated but it is usually work of less than 16 hours a week where your earnings are no more than a certain amount. For more information about permitted work in Northern Ireland, go to www.nidirect.gov.uk. If you want to find out more about permitted work, you should consult an experienced adviser, for example, at a Citizens Advice Bureau or disability rights centre

Getting Employment and Support Allowance backdated If you were entitled to Employment and Support Allowance (ESA) before you made your claim, you may be able to get it for an earlier period. This is called backdating. ESA can be backdated for up to three months before the date of your claim, and you do not have to give a reason for your late claim. You should explain when you make your claim that you want to claim backdated benefit and give the date you became entitled to ESA.

12

Waiting days before Employment and Support Allowance is paid You cannot normally get Employment and Support Allowance (ESA) for the first three days of your claim. These three days are known as waiting days. In some cases, you can get it for these three days, for example, if you have claimed ESA before in certain circumstance

How is Employment and Support Allowance paid Employment and Support Allowance (ESA) is usually paid direct into a bank, building society or Post office card account. If you cannot open or manage a suitable account, you should let the office which pays your benefit know. It is possible to pay the benefit by Simple Payment in some circumstances. You will be issued with a Simple Payment Card, which will allow you to collect your benefit at a PayPoint outlet displaying the Simple Payment sign.

Civil penalties for causing an overpayment In some cases in England, Wales and Scotland, you may have to pay a civil penalty if you do something which causes an overpayment. This can happen if, for example, you give wrong information or you keep quiet about something, and as a result you get more Employment and Support Allowance than you're supposed to be getting. You can only be asked to pay this penalty if you haven't committed fraud. If you have committed fraud, different rules apply. You can appeal against a decision to impose a civil penalty.

Employment and Support Allowance - change of circumstances and fraud You may commit a benefit fraud if you give incorrect or misleading information, or fail to report a change of circumstances, that could affect your Employment and Support Allowance (ESA). Even if you are not committing fraud, you can cause an overpayment that will have to be repaid. Your circumstances can be checked at any time while you are claiming. Benefit fraud is a criminal offence and you can be prosecuted or asked to pay a penalty. If you are being investigated for benefit fraud, your benefit will be suspended. If you are convicted of benefit fraud more than once, your benefit can be reduced or stopped in the future. If you are worried about whether you might be suspected of fraud, you are under investigation or you have been convicted, or if you have been asked to repay an overpayment of benefit, you should consult an experienced adviser, for example, at a Citizens’ Advice Bureau or Disability Rights office.

13

Discrimination when claiming Employment and Support Allowance It's against the law for you to be treated unfairly because of age, disability, gender reassignment, pregnancy or childbirth, race, religion, sex or sexual orientation when benefits or tax credits are paid to you. Also, the Department for Work and Pensions, HM Revenue and Customs and most local authorities have policies which say they will not discriminate against you because of other things, for example, if you have caring responsibilities. If you feel that you've been discriminated against when you are paid benefits or tax credits, you can make a complaint about this. If you do feel discriminated against please contact the Community Legal advice line and explain the situation to them where they will decide if they can give you legal help and take the offender be it ‘Who gives Atos’ or the DWP (a list of discrimination acts are listed in the below acts of discrimination section later in this advice sheet)

Before the assessment Filling in the forms; If you need help filling in the forms contact you local disability rights centre, CAB or benefits law solicitor they will be able to help you. (if they are not able to help you fill the forms in by the time they are needed to be returned call your job centre and explain you need help filling in the forms the people who can do it have an appointment on (insert date) which is the earliest help they can give and you would like an extension due to this reason)

Who should be assessing you List of conditions judged suitable for assessment by neuro trained nurses/any health care profession: 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

14

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 sequelaeBrain 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

15

What to ring and inform ‘who gives ATOS’ of •

Any special needs you have ie. Wheelchair, not able to sit in a waiting room etc also check the list above to see who you need to be assessed by and make sure they are going to provide you with the appropriate assessor.



If you are unable to attend the appointment make sure you call and let them know in advance (you can re book an appointment one time before ‘who gives Atos’ send your file back to the DWP where they will decide if you have breached terms or not (they will ask you for a reason why and evidence)



If you are unable to attend the assessment centre due your disability ie major social anxiety etc. make sure you get a letter from your Dr supporting the fact that you need a home assessment and the reasons why.



DEMAND that your assessment is AUDIO or VIDEO RECORDED. If they are unable to accommodate on the day of your appointment ask that they move your appointment date to a day where they can record the assessment with no penalty to yourself and give your reasons, the main one being the number of ATOS Dr’s under investigation by the GMC and all the whistle blowers including a senior Dr at ATOS who exposed the type of practises that happen at an assessment and after an assessment, you wish for evidence to be at hand so that you have a fair assessment, (make sure you take a note of the time that the recording was started and what time the recording was stopped, if you can to the exact second)



Take note of the person’s name who you spoke to along with the time and date of the call and the number you called to speak to them.

Things to prepare before your appointment •

If you need someone to support you or aid you at the appointment make sure they are able to attend with you.



Make sure you have all the evidence you need if it’s dated over a year ago from the date you attend your assessment please make sure you get a up to date letter from your GP/Specialist confirming that your condition has remained the same or got worse etc. to take to the assessment or for when the assessor attends your home



Have someone who is with you most of the time or lives with you write a letter to tell both the Dr’s at ‘Who gives ATOS’ and the DWP decision maker what day to day life is like for you from that persons perspective.

16

THE ASSESSMENT The assessment starts on the day of your appointment with the Health Care Professional (HCP) reading the form you completed when you applied for benefit. Remember that every single question you are asked is designed to test you and justify ending your claim for ESA and passing you as “fit for work”. That is what Atos are contracted to do by the Government (Information taken from ex Atos and DWP employees). This is not a genuine assessment, but rather, an opportunity for the DWP to take away the financial support that you are entitled to, So to make sure that you are fully informed, here is it outlined on how they assess you even without you knowing! Most of us have the I’ll cope attitude and going to the assessment with this head on will go against you as most days you can’t bring the ill cope side of you, so make sure you show them what you are like on a regular basis not the odd day.

Things that are noted at this stage are: •

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



Does your medication support your diagnosis



What tests you have 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 support arms or not



Were you accompanied – assessing your ability to go out alone

17



Were you reading a paper while waiting – assessing your concentration



Did you walk to the assessment room unaided, did you use any aids correctly. Did you navigate any obstacles safely – assessing sight

The HCP will shake your hand on introduction – assessing your handshake, noting if you are trembling, sweating – signs of anxiety. The HCP carefully scrutinises everything you do and say. The HCP will often ask on way to waiting room:



How long you’ve been waiting – assessing ability to sit, physically, and appraising your mental state



How did you get here today – assessing 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 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 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



Employment history taken – asking 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 what is most likely to be used to justify you failing your assessment and being passed as “fit for work”. Alongside this, the HCP records their observations.

Starting with your sleep pattern, questions are asked around your ability to function. This will include:

18



Lower limb problems – ability to mobilise to shops, around the house, drive, use public transport, dress, shower



Upper limb – ability to wash, dress, cook, shop, complete ESA form



Vision – did you manage to navigate safely to assessment room

• •

Hearing – did you hear your name being called in 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



HCP observations include – how far did you walk to examination room, did you remove 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



Any training, voluntary work, socialising – 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 claiming accident, there must have been some 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

Further observations made by the HCP – appearance and presentation: •

Coping with assessment interview – any abnormal thoughts, hallucinations, confusion

19



Coping with change – ability to attend assessment, attend GP or hospital appointments, shopping and socialising

More HCP observations: •

Appearance, eye contact, rapport, any signs/symptoms that are abnormal mood/thoughts/perceptions. Any suicidal thoughts



Coping with social engagement/appropriateness of behaviour – any inappropriate behaviour must have involved police to be considered significant



Ability to attend assessment, engage with assessor, behave appropriately

Again, this is not an exhaustive list, merely some examples.

After the assessment •

Call ATOS and ask them for a copy of your recorded assessment along with a copy of the final assessment report in full.



Gather all your evidence you took to the assessment including letters etc and photocopy them, then send them in an envelope to your local job centre with your name, NINO, and assessment date asking them to forward it on to the correct Job Centre department so that the decision maker can make a fully informed decision if you use a wheelchair take a picture of this to show what type of chair you have.

What to do if your denied ESA; •

APPEAL!!!!



If you haven’t got a copy of your full assessment report call ATOS/DWP to get a full assessment report so you can see how they have come to their decision along with asking for a copy of the audio recorded assessment you should of requested before you attended your assessment.



If you are not in contact with a benefits law solicitor now is the time to get in contact with them the best way to do this is through the Community Legal Advice Line

Civil Legal Advice Telephone: 0845 345 4 345 Minicom: 0845 609 6677 Monday to Friday, 9am to 8pm Saturday, 9am to 12:30pm

20

However there are other companies you can speak to which will be listed in the resources section at the bottom of this ESA Advice Sheet. When you call, explain that it’s to do with a ESA assessment and you believe that you should have been given more points than you were especially with all the evidence you have from specialists and GP’s, then they will pass you on to a solicitor if you meet the requirements for legal help.

Making a complaint to the GMC about your medical assessor If anything has been changed in the report or you feel your assessment was not handled properly by the Assessing GP/Nurse etc. even contradictions report them in the 1 st instance to the GMC via the online complains form, to do this please follow this link; http://www.gmc-uk.org/concerns/making_a_complaint/a_patients_guide.asp This link will also give you more information with regards to making a complaint ALSO make sure you launch a complaint with ATOS & the DWP (contact info below)

Making a complaint to Atos; Telephone customer relations on 0113 230 9175 Email us at [email protected] Write to them at; Atos Healthcare, Block 1, Wing G, Government Buildings, Otley Road, Leeds, LS16 5PU.

Making a complaint to DWP Please follow this link for more info;

21

Direct.Gov

What to include in your appeal •

Read the full report you requested, mark off each bit that is wrong, not what you said or was a contradiction or blatant lie from the assessor, within the appeal letter include each section you marked with what they had put then explain why it is wrong on top of that Remember all the evidence you gathered? Well now is the time to re copy it and send it all to the 2nd decision maker with the appeal letter, along with photos of any aids you use and any extra supporting evidence you can get, re list your medication and the side effects you get from them. State to them how you felt with the assessment process and any concerns you have about the assessor. If you were meant to have a Dr perform your assessment or a specialist nurse who has been practicing 3 years due to the nature of your condition/disability and you didn’t get what is legally required then inform them of that (please see list of conditions in the before your assessment section)

Regulations 29 &35 •

Please download the template letters (links below) give them to your GP in support of your appeal immediately and submit them to the DWP. They may mean that your case will be reconsidered in your favour without having to wait for a tribunal hearing. Cover letter for your GP:

ESA appeals letter for GP

Legal Advice of Counsel for GPs: Prevention of Avoidable Harm Interpretation and Application of ‘Substantial Risk’ ESA Regulations 29 & 35

At present to qualify for ESA you need to score 15 points, unless the Exceptional Circumstances Regulations apply to you. The 15 points 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 (Regulation 29 and Regulation 35, (or 25 and 31 for Universal Credit – see link above and in the resources section) if there would be a substantial risk to your

22

mental or physical health if you were found not to have limited capability for work. Regulation 29 is about exceptional circumstances for being assessed as having limited capability for work (WRAG) , and Regulation 35 is about being assessed as having limited capability for work-related activity (Support Group). (Template letters for your appeal with regards to regulations 29 &35 available from the above section what to include in your appeal Special cases – exemptions from assessment include those people having: terminal illness, intravenous chemotherapy treatment and danger to self or others if found fit to work. Contribution-based ESA lasts for 1 year only, unless you are in the support group. After 1 year in the work-related activity group, 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

To Qualify for the Work Related Activity Group Most claimants who qualify for the work-related activity group do so because they have scored enough points in the limited capability for work assessment. Others qualify because they are exempt or because they are covered by the exceptional circumstances rules, such as there being a danger to themselves or to other people if they were not placed in the work-related activity group.

FORMS OF DISCRIMINATION The Equality Act protects anyone who has or has had a disability from discrimination. However, the Act describes different types of discrimination, and often it is difficult to work out what your rights are. This article aims to explain how these parts of the Act could apply to you. The Equality Act 2010 talks about direct discrimination, indirect discrimination, harassment and victimisation, let’s look at what each one means in practice for disabled people.

Direct discrimination There are 3 types of direct discrimination, here are some examples Caroline is a wheelchair user, she goes to a nightclub with a group of friends. The bouncer let’s all her friends in but refuses entry to Caroline saying she will take up too much space. This is an example of direct discrimination as Caroline is being treated less favourably than her nondisabled friends. Andrew supports a group of young people with learning disabilities. After attending a group meeting Andrew goes into a nearby newsagents to buy a paper. The owner of the shop assumes he has a learning disability as he has seen Andrew out and about with members of the group. The owner of the shop tells Andrew to leave and not to come in again unless he is accompanied. Even though Andrew is not a disabled people he is still facing direct discrimination because the shop owner presumes he has a learning disability. This is direct discrimination by perception.

23

Alice is refused a place at her village nursery because the manager knows that her younger sister Matilda has a learning disability. The nursery operates a policy of automatically offering places to siblings and they are concerned that looking after her sister would take too much time. Even though Alice does not have an impairment she is facing discrimination because her sister Matilda has a disability. This is direct discrimination by association.

Indirect discrimination Indirect discrimination happens when there is a rule, policy or even a practice that applies to everyone but particularly disadvantages people who share a protected characteristic, in this case disability. A housing association has a policy of reminding people about appointments to discuss their housing needs by telephone. This puts deaf people who cannot use the telephone at a disadvantage, as they do not receive a reminder of their appointment. Unless the association can justify its policy of making contact only by telephone as being a proportionate means of achieving a legitimate aim, this is likely to amount to indirect discrimination. In some cases indirect discrimination can be justified, but only if the organisation can show that it is a reasonable way of achieving a legitimate aim.

Harassment Rachel works in a retail store. She is new to the team and when chatting to colleagues mentions her husband Mark has a visual impairment. Colleagues begin to bully Rachel by making comments about Mark’s visual impairment. She feels intimidated and dreads going to work. This is an example of disability related harassment. Rachel is distressed by the unwanted behaviour she is receiving from colleagues because of her husband’s impairment.

Victimisation Victimisation applies whether or not the person being victimised has a protected characteristic. It occurs when an organisation treats someone badly because –



The person has made a complaint under the Equality Act.



The person has helped someone else to make a complaint.



The organisation thinks the person has made a complaint or assisted someone in doing so.



The organisation thinks the person will make a complaint or assist someone in making one in the future.

24

Phil has supported Tim in his complaint against their manager David. Tim believes that David has discriminated against him because of his hearing impairment. Since David was made aware of the complaint he has treated Phil badly, using disrespectful language. In addition to these types of discrimination there is an additional type of discrimination that only applies to disability. This is discrimination arising from disability.

Discrimination arising from disability occurs when a disabled person is treated unfavourably because of something connected with their disability. Discrimination arising from disability is different from direct discrimination.

Direct discrimination occurs when a service provider treats someone less favourably because of the disability itself. Discrimination arising from disability can occur only if the service provider knows or can reasonably be expected to know that the person has a disability.

Laura has autism and often speaks out of turn in seminars. This can create a disruptive atmosphere for the tutor and other students. Because of her behaviour, Laura is asked not to attend seminars by her tutor. This is likely to be discrimination arising from disability if it can be reasonably expected that the tutor is aware that Laura has autism.

If you would like further information about your rights and the Equality Act 2010 a lot of useful information is provided by the Equality and Human Rights Commission. You can find out more about types of discrimination on their website www.equalityhumanrights.com

At an Atos assessment center if they are not fully equipped to deal with disabled people ie. Disabled access, only part disabled access, they make you wait in a room full of people when you have made them aware you cant and they could of arranged a home visit instead, making you wait when you have informed them you are in severe pain etc this is Discrimination nad you can take ATOS to court for this, along with how the assessor treats you too.

If you believe Atos have discriminated against you in any way listed above or under any category listed above get in contact with a human rights solicitor straight away you only have 12 months in which to get it to court this includes all the prepping for court, gathering evidence etc, the quicker a solicitor gets involved with it the better for you, this may end up

25

with ATOS being told to leave you alone for x amount of years too.. Please see the resources section for solicitors and contact numbers where people can help.

WARNING!!! Most Atos HCPs are not doctors, they are usually nurses or occupational therapists. There are some conditions that will mean you need to be assessed by a qualified specialist nurse, or a doctor and you can ask for this.

The Tribunal How incapacity for Work is assessed To be accepted as incapable of work under the Limited Capability for Work Assessment you need to score a total of 15 points or more for the limitations set out in the physical, mental and other activities (descriptors). Scores from any of the activities can be added together. Points are awarded when you are not able to perform an activity ranging from 0 to 15 depending on the level of limitation within each activity. Only the highest score counts in each activity. There is a set of descriptors for the following activities.

Physical: •

Mobilising (the ability to move around on level ground)



Standing and sitting



Reaching



Picking up and moving things



Manual dexterity (using your hands)



Making self understood (speaking, writing, typing etc.)



Understanding communication by verbal and non verbal means (hearing, lip reading and reading 16 point print)



Navigation and maintaining safety (using aids such as guide dogs)



Controlling your bowels and bladder



Consciousness during waking moments

Mental, cognitive and intellectual •

learning or understanding how to complete tasks



Awareness of hazards



Initiating and sustaining personal action (planning, organising,

problem solving,

prioritising and switching tasks) •

Coping with change

26



Getting about



Coping with social situations



Appropriateness of behaviour with other people

You need to identify which activities (descriptors) apply to you. Then you need to identify the level of difficulties you have with activities. Think about whether you can perform the tasks reliably, safely, repeatedly and at reasonable speed. The effects of things like pain, tiredness, stiffness, breathlessness, dizziness, nausea and balance problems should be taken into account. The test takes into account the things you can and cannot do when you are using any equipment or appliances that you would normally wear or use such as glasses, a walking stick, artificial limbs (prosthesis) and so on. Some medication and various physical conditions can affect things like alertness, concentration, your mood or memory. These should have been considered by the DWP Healthcare Professional under the mental health activities. If this has not happened, you will need to tell the tribunal about them and ask that they assess these difficulties for you. You might also have a health condition that has not been taken into account at the medical assessment. For example, you might have anxiety or depression, but maybe have not seen your GP about this. You will have more chance of this being taken into account if you can get medical evidence to back up the difficulties that you say you have.

Get medical evidence of your difficulties Try to get medical evidence before the hearing. Your doctor may want to charge you for writing a letter. It may be possible to get Legal Aid to pay for it. Please contact us if you need advice on this. Ask your doctor, consultant, physiotherapist or other health care professional as appropriate to comment on the difficulties with activities that you have identified. It is important that your evidence does not just state what condition you have and the treatment you receive. It needs to deal with what descriptors they think should apply or whether your assessment of your limitations is consistent with their understanding of your condition. Please ask us for a list of descriptors to give to your doctor or other health professional. Your evidence needs to be about the difficulties you had at the time of the decision. If your condition has changed since the decision was made, the tribunal cannot take this into account. Please contact us for advice about this.

Your explanation of your difficulties After your appeal papers are sent to you, the next thing you will receive is an Appeal Enquiry Form (TS1). Make sure you say you want to attend a hearing. Your chances of success are much higher if you go in person to the appeal hearing. You can take someone with you for support. Obviously you know your difficulties and limitations better than anyone. The DWP Healthcare Professional only saw you once so cannot know everything about you. What you say about your difficulties can count as evidence as long as it is not inconsistent or difficult to believe. Your statements to the tribunal will carry more weight if they are supported by medical evidence.

27

It is helpful to write down the activities (descriptors) that you feel you satisfy and why. This can then be sent to the Tribunal Service together with any medical evidence that you manage to obtain. Remember to keep a copy for yourself so that you can refer to it during the tribunal hearing. The Tribunal Service may send you a copy to add to your appeal papers if they receive it in enough time before your hearing date.

Take a Representative If you’re having a hearing (which is recommended) so that you can put your case forward in person. They will ask if you are applying for an appeal and if you will be representing yourself at the hearing or you have a representative.

Ensure your representative is up to date with DWP and benefit system, and that they will speak on your behalf at the hearing. This is VERY important as having a poor representative can damage your appeal.

Disability Online can assist you throughout your appeal and represent you at your hearing, but please contact us straight away if you need assistance. Try and meet regular with your representative and the day before or morning of your hearing to make sure your both up to date with the facts and circumstances regarding your appeal. Please don’t leave it till the last minute, you need to get in soon as you can if possible straight away after receiving your letter of refusal. SOONER THE BETTER.

Key points for when you attend the Tribunal When you attend the tribunal; • • • •

Take someone with you no matter if you need to or not a witness is always good If you need assistance or someone there to fight your corner get this sorted as early as possible Take all your medication Take all your medical evidence (if you can get more supporting evidence by your tribunal date it’s always a bonus)

You could also call the community legal advice line and speak to a independent benefits law solicitor to see what they say you’re entitled to by law as if the tribunal is unsuccessful for you you can appeal again and have your case sent to a INDEPENDENT BENEFITS LAW SOLICITOR. This will at least give you piece of mind to what the final outcome of the next appeal would be before you get there

28

The Appeal Day (Tribunal) If your appeal is a PM sitting then try and have a meeting with your representative if you have one in the morning, this will ensure your both up to date and they have all the information for the hearing. The appeal panel will be 1, 2 or 3 members. They may have different backgrounds than your standard Magistrate or Judge, but they will have all been vetted by the HM Courts service. The courtroom or centre will be less formal than a main courtroom but they will still be bound by the same law as the courts.

Even if you have a representative and they are speaking on your behalf then the panel will still want to speak with you direct over some aspects of your claim and ask you certain questions about your Disability/Illness – this is only right as you’re the only one who knows exactly how you feel and how it affects you on a daily basis.

The hearing will normally last no longer than 1 hour unless there are complications and they may or may not give you a decision there and then, however it’s normally in writing within 5 – 7 working days of the appeal.

Tip: Your Representative or CAB or local Welfare Rights will go through the process with you, and will help you through the hearing and ensure that you have all the correct documents and information. If you’re not being represented and your attending the Appeal on your own you SHOULD make sure you have all the information that is required, you can get more information from the link below or what has been sent to you by DWP or the Appeals Office.

The appeal panel will only look at the information you have provided in your original claim form and any of in the prepared papers and the evidence you have submitted, and any medical evidence from any of the following, you must understand that the panel will only look at the claim when the decision was made at the time.

They don’t wish to know how you are since the date of the decision and how you are at the appeal, they may ask how you are but this will not be used in the decision.

Also you need to understand that they will go by what the law says and they cannot change the law. (They will use the Welfare Reform Act 2011 when they make the decision)

29

They will also look at information provided by the following only if it’s regarding the claim that the decision was made on. •

General Practitioner



Hospital Specialist



Other Medical professionals



ATOS Medical (if you have had an ATOS medical then this will be used for DWP)



Also they will want to see any Medications you’re taking for your condition; they may want to know how your condition affects your daily live and also the family live.

After The Appeal You may not be notified of the panel’s decision at the appeal on the day, so you will have to wait for around a 5 to 7days to receive a letter from The tribunal and they will send copies of its decision, together with notes about it, to you and the other people involved in the appeal and to the DWP / JCP advising you on the decision and what happens next, if your appeals is successful then you will be told how much they will pay you and from when and so on.

If your appeal was unsuccessful then you will be told what you can do next, if you feel you was not represented well enough by the representative or you feel that your case was not heard fairly then you could ask for a permission to appeal to the upper Tribunal but this is not guaranteed.

What to do if your tribunal is unsuccessful Upper Tribunal This is a last resort and in order to go on to this stage you have to have had your first appeal rejected and also you need to have Permission to Appeal to the Upper Tribunal

You need to make an application for Permission to Appeal to the Upper Tribunal and Notice of Appeal This means asking “First-tier Tribunal” for permission to appeal to the Upper Tribunal. (The “first-tier Tribunal” is the tribunal that turned your appeal down)

30

Once you have the ruling of the First–tier Tribunal on your application for permission to appeal, you can do so there is some very important information about the next steps in the process before you continue this can be found on the Upper Tribunal Administrative Appeals website.

Upper Tribunal Application Forms Upper Tribunal info Upper Tribunal leaflet

For more information on the upper tribunal service; http://www.justice.gov.uk/tribunals/aa

Info & Resources legal help/benefits/discrimination Civil Legal Advice Telephone: 0845 345 4 345 Minicom: 0845 609 6677 Monday to Friday, 9am to 8pm Saturday, 9am to 12:30pm Fightback – Solicitors

***************************************************************************

Informative Websites & Groups Disabled UK black triangle campaign Fightback

Important Addresses, Online Forms & template letters Appeal Regulation 29 & 35 Cover letter for your GP: ESA appeals letter for GP

31

Legal Advice of Counsel for GPs: Prevention of Avoidable Harm Interpretation and Application of ‘Substantial Risk’ ESA Regulations 29 & 35

***************************************************************************

GMC online form to report a medical professional http://www.gmc-uk.org/concerns/making_a_complaint/a_patients_guide.asp ***************************************************************************

Making a complaint to Atos Telephone customer relations on 0113 230 9175 Email us at [email protected] Atos Healthcare, Block 1, Wing G, Government Buildings, Otley Road, Leeds, LS16 5PU. ***************************************************************************

Making a complaint to DWP Please follow this link for more info; Direct.Gov

This section is being complied as we speak and will be updated by 19/06/13

32

With Thanks to. Disability UK group members and supporters Disability Rights Norfolk CAB Black Triangle Campaign Kittys Jones Fightback Disability Online The Crutch Collective Ryan J Thompson Adam Lotun Wda

33