Monday, 13 November 2017

My submission to the Parliamentary Inquiry on ESA and PIP



Response - PIP and ESA Assessments inquiry


Name: Tom Evans
Welfare rights adviser 2008-2009; 2013-present

Background

I have been working for an advice charity advising clients on benefits matters and entitlement full time since 2013 with a focus on representing clients through the process of appealing work-capability and PIP decisions. I also had some experience of this process in 2008/09.

Common features of ESA and PIP

Entitlement to both benefits is determined by assessing a claimant’s disabilities against a set of descriptors which prescribe specific problems. These descriptors cover 17 activities in ESA and 12 in PIP.

A claimant who is assessed as meeting or satisfying a descriptor scores a corresponding number of points. In most cases, points will be needed across more than one activity to qualify for benefit.

Assessments

In both benefits, the assessment is carried out by requesting the claimant’s own account of their relevant problems in a questionnaire, and then by asking about this further at a face to face meeting with a qualified healthcare professional (known as an HCP or assessor). The assessor then recommends to the DWP which points-scoring descriptors are satisfied. This is based on their training by the DWP on the criteria, and to an extent (which has never been fully disclosed by the DWP) by purportedly expert-system software. In ESA an application known as LiMA[1]. is involved, and there is an unknown equivalent in PIP.

Common problems in the assessment process of both benefits

Points Criteria

It follows from the above that a correct understanding by the assessor (and to the extent relevant, by the computer programme) of the criteria for satisfying each descriptor is absolutely fundamental to the process.

One of the most common complaints by claimants is that an assessor was not qualified to assess them (e.g. due to not being a doctor or specialist in the condition). While it may be a factor, this probably misses the point in most cases. Assessments by doctors are, in our experience, of no higher quality.

The issue in a given assessment is far more likely to be poor application of the descriptors to a claimant’s circumstances, even where these factual circumstances are agreed. The extent to which this is caused by an incorrect but innocent belief about the test, or by deliberately incorrect training or working to targets, remains extremely contentious.



Issues around anchoring to the top descriptor, and bottom-up counting

Within the 17 activities in ESA and 12 in PIP, each activity carries multiple potential point-scoring descriptors. The scores available range from 6-15 in ESA and 2-8 in PIP.

In both benefits, it is very unusual for claimants to score more than the lowest descriptor in an activity. Assessors seem very reluctant to award higher scoring descriptors, which can make qualifying for the benefit a much more difficult exercise, particularly for people whose needs are severe but focused in one area. This has been referred to as bottom-up counting: reversing the order in which descriptors are considered so that only the lowest scoring one is counted, even if a higher score might also be justified.

Conversely assessors also seem anchored to the concept (see ‘rules of thumb’) that to score any points a claimant must be completely unable to carry out an activity (which generally relates to the highest descriptor). This leads to a double harshening of the test so that to score any points a claimant must factually satisfy the highest descriptor while only being allocated the points for the lowest.

ESA Example: Mrs W is losing control of her bowel on a daily basis. Instead of the appropriate 15-point descriptor, she was only awarded the lower descriptor for being ‘at risk’ of this happening.

PIP Examples: -

Mr C has autism but was awarded the lowest scoring two-point descriptor for social engagement: that he needs encouragement. The activity is supposed to encompass understanding body language and forming relationships reliably, which he is unable to do.

Many claimants who are physically unable to complete an activity at all are only awarded two points for ‘needing an aid or appliance’, where this does not seem relevant to their problem, and it is not explained how one would help.

Weight placed on purported counter-examples

Much of the assessment process for disability benefits relies on looking for counter-examples: activities a claimant can manage which would be inconsistent with a points score. Explored correctly, this is a valid technique: for example the fact a person who has recently moved house themselves without difficulty or receiving any help would be good evidence they could lift a cardboard box.

Use of this technique is problematic in ESA and PIP assessments, where alongside the ‘rules of thumb’, very dubious examples are often given disproportionate evidential weight. Often the examples are activities managed very occasionally, or in other cases, are examples lacking proper elements of the test in the descriptors. The LiMA software in ESA works particularly heavily along such lines[2].

Examples: -

Mr M was found able to cope with unexpected changes, and travel to unfamiliar places alone, based on him being able to sit in his car at the seafront near his home.

Miss P was said to be able to plan and organise tasks based on being able to drink water.

Mr R was said to be able to walk 200 metres without stopping based on getting to the foodbank, an unknown distance away.

Miss F was found to be able to cope with social engagement reliably due to attending rape counselling.

Many of our clients have been found to be able to cope with social engagement reliably based on going into a shop or to the GP, without any more detail about these encounters being asked.

The LiMA software in ESA is known to search for keywords in a claimant’s alleged typical day and to carry these examples over to its advice on activities, where it is used to affect the recommended score. This can be observed when a nonsensical example is occasionally picked up by the computer: for example, a statement that a claimant ‘sees his children’ might be carried over to the section about vision. Other examples of known keyword recognition include any statement including the word ‘shop’ being carried into social engagement, and any use of ‘dog’ being carried into mobility.

Irrelevant and pseudo-scientific mental health tests

In addition to often dubious counter-examples, ESA and PIP assessments both include tests such as asking the claimant to count down from 100, spell ‘world’ backwards, and remember three objects. While these have some use as tests for dementia and severe learning disability, they have no known validity in testing for mental health or emotional disorders, or autism-spectrum disorders.

Despite this, these tests are used routinely as purported evidence that a claimant can function socially, reliably plan and organise tasks at home or in a workplace, or cope with stresses.

Failure to refer to the claimants’ own evidence and to other evidence

In principle the DWP’s decision should take into account the claimant’s own evidence, either in the claim forms or other statements, and other relevant evidence, as should the assessor’s report.

In practice we do not find that this happens. The assessor’s report follows the pattern of focusing on the claimant’s account of the typical day and checking this for purported counter-examples. This also has the (possibly unintended) side-effect that because the LiMA manual asks for positive examples of ability only, it is very hard for the claimant to get evidence on record that might suggest they meet a descriptor. It biases the process towards non-entitlement.

Over-reliance on absence of treatments or input

A very common theme in ESA assessments is an observation that a claimant is not in receipt of certain treatments. Often this is summarised as ‘no specialist input’ or similar. Sometimes the particular treatment in mind is specified, such as ‘not been referred to the memory clinic’, or appropriate treatment is minimized, such as ‘only on standard medication’ or ‘a standard dose of painkillers’.

While it can, with care, be possible to draw appropriate inferences where an expected treatment is absent, there is reason to think this assessment technique is not being used appropriately. In a recent housing case, overuse of a similar asessment technique was criticized by the Central London County Court[3].

Many treatments may not be appropriate or available, and there may be other good reasons for a claimant not receiving them other than an absence of need. Receipt of treatments or certain medical input is not part of the criteria for receiving sickness or disability benefits and it is wholly wrong for assessors to substitute this as a proxy for the proper criteria. It is especially worrying when an implication that to qualify, a claimant should be overdosing on painkillers.

Problems specifically known to affect ESA

Use of rules of thumb

In 2013 Dr Greg Wood resigned from Atos and revealed that he had been trained to apply various rules of thumb which ‘he believed deliberately traduced the more nuanced written instructions in the assessors' handbook on five critical areas, so that assessors were less likely to award points to claimants’[4]. Training of these ‘rules’ was also independently recorded in undercover filming[5].

Despite the denial of this by Atos, and some attempts to backtrack from the more obviously incorrect rules, evidence of these rules or variants of them persists in reports.

Examples: We assisted Mr S to appeal against a decision incorporating a purported finding that he could mobilise more than 200 metres without stopping. The evidence cited was that he could walk briefly close to his caravan and was observed walking with a stick from room to room at the assessment.

A further effect of rules of thumb is that they discourage the assessor from recording, or even asking, enough information to arrive at a proper decision, since the cursory information is wrongly thought to be enough. (See also ‘counter-examples’ below)

Use of statistical norms

Rumours of targets or incentives to find more claimants ineligible for benefit have long haunted ESA. Then Minister for Work and Pensions, Chris Grayling, denied the existence of any targets anywhere in the system[6].

What has been now admitted is that assessors for ESA work to ‘statistical norms’[7].These are said to be different from targets, as an assessor does not know what the ‘target’ is. This is still problematic, as an assessor will know their numbers are being tracked so will still indirectly be influenced.

Since tracking norms requires assessors to follow the behaviour of other assessors, this leads to a self-perpetuating culture of incorrect outcomes. And since it is widely accepted that the initial tendency was to pass too few people, this set the course of the norm in an unmovable direction.

DWP objections to purported ‘double counting’

While not a consistent problem, the DWP has made repeated attempts to restrict what it purports to be ‘double counting’ - that is to alter the criteria so that a limitation cannot score points in more than one assessment activity. Most notably, an attempt at this succeeded in 2011 when three of the mental health activities were removed from ESA on this basis, significantly harshening the test[8].

As noted in the introduction above, it is normally necessary for a claimant to score in more than one area to qualify for benefit. Far from being ‘double counting’, this is a basic feature of the assessment process that has been created. Any future attempts by the DWP to resurrect this as an issue should be viewed with considerable suspicion.


Ministers statements on criteria

It is often the case that claimants’ expectations have been poorly managed by statements from ministers. People who are then found not to be eligible are made to feel as if they have been caught out or in some way accused of making a false claim. This is especially unfair in ESA, as a subsistence benefit for those unable to work, who may well have no other source of income and who will have come to be on ESA simply through being signed off work by their GP with no opportunity to make a positive decision to claim on the merits of their case. The assessment is usually the first time they learn that their GP’s note is not the final word.

There has been a long trend for ministers to make statements such as ‘we are committed to ensuring that those who cannot work are protected’ or that the ‘most vulnerable’ will not lose out.

When a claimant actually tries to claim the benefit and is found ineligible, the Department appears to retreat from such statements and to replace them (privately) with platitudes about the test requiring a ‘very high degree of disability’, or that despite significant disabilities being accepted, they are ‘not enough to be found to have limited capability for work’.

This disparity between ministers’ statements and the actual tests have led to increased suspicion and abuse of claimants, such as that seen in the right-wing press who feel empowered to assert that anyone who was ‘genuine’ would have easily passed their assessment[9]. This situation risks causing misguided campaigns for eligibility to be tightened even further.

This inconsistency was again seen in 2016 when the work-related component of ESA was abolished, with many MPs expressing an incorrect belief that anyone incapable of work was entitled to be in the support group – in effect, that being allocated to the support group was easy and expected. Even the newly appointed Secretary of State at the time had to correct a misleading statement to this effect[10]. This has led to a noticeable rise in people who feel that being placed in the work-related activity group of ESA is an insulting denial of their condition, or that it is equivalent to being found fit for work.

We would urge that the DWP should be required to ensure that there is a consistent message in public and towards claimants. In particular, if the policy is that significantly disabled or vulnerable people can nevertheless be ineligible for extra support, or should fall within the sanctions system, ownership of this needs to be publicly accepted by the DWP.


[1]              See for example the discussion in the Upper Tribunal in NH v Secretary of State [2014] UKUT 114 (AAC) http://administrativeappeals.decisions.tribunals.gov.uk//aspx/view.aspx?id=4141
[2]              Extract from the LiMA Technical Manual “Tip – Say what the claimant CAN do. LiMA works best when it has positive information about the claimant’s abilities. For example, the phrase ‘Can walk 400m to the shops’ is much more useful than the phrase ‘Cannot walk 800m to the town centre.’ Wherever possible, try to gather information about what the claimant CAN do.” [In an independent report, one is left to speculate why this is seen as more useful.]
[3]              Thomas v Lambeth LBC https://nearlylegal.co.uk/2017/10/vulnerabilitymedical-evidence-now-medical/
[4]              https://www.theguardian.com/society/2013/jul/31/atos-fitness-work-test-greg-wood
[5]              Channel 4 - Dispatches – Britain on the Sick - https://www.youtube.com/watch?v=2rQmAfrKEic
[6]              Channel 4 - Dispatches  - https://www.youtube.com/watch?v=0Npuh4im0jY
[7]              Freedom of Information response https://www.whatdotheyknow.com/request/atos_norms
[8]              https://publications.parliament.uk/pa/ld201011/ldselect/ldmerit/105/10506.htm
[9]              Daily Express 14th Oct 2009, 26th Jan 2011, 27th Jul 2011 “75% on sick benefits are faking” This story was repeated across the press in similar terms. It is clear that the figures were sourced from a closed DWP press release.
[10]           http://www.independent.co.uk/news/uk/home-news/work-pensions-secretary-stephen-crabb-disability-able-fit-a6951946.html

Friday, 2 December 2016

Ipso - Cuckoo in the Nest

Dear Mr Evans

I write further to our earlier email regarding your complaint about an article headlined “CUCKOO IN THE NEST Migrant foster mum reveals her horror at discovering ’12-year-old refugee’ in her care is actually a 21-year-old Jihadi”, published by thesun.co.uk on 22 October 2016.
On receipt of a complaint, IPSO’s Executive staff reviews it to ensure that it falls within our remit, and represents a possible breach of the Editors’ Code of Practice. The Executive has now completed an assessment of your complaint under the terms of the Code. Having considered the points you have raised in full, we have concluded that your complaint does not raise a possible breach of the Code.
You complained that Clause 1 (Accuracy) had been breached because you believe the article was fabricated. In support of this, you noted that the article did not explain why a 12 year old child from a war torn country was at a shooting range. You also said that whilst the refugee was reported to have jihadi material and child abuse images on his phone, he does not appear to have been investigated by the police. Further you expressed concern that the article included a pixelated photograph. You said that if the man had been identified as an 18-year-old and accused of serious offences, there would be no reason to pixelate his photograph. While we note your comments, we do not consider that this provides an adequate basis to conclude that the article contains a possible breach of the Code. You do not appear to have any direct knowledge of the situations described in the article, and your position appears to be based on speculation based on information contained in the article itself.
You are entitled to request that the Executive’s decision to reject your complaint be reviewed by IPSO’s Complaints Committee. To do so you will need to write to us within seven days, setting out the reasons why you believe the decision should be reviewed. Please note that we are unable to accept requests for review made more than seven days following the date of this email.
We would like to thank you for giving us the opportunity to consider the points you have raised, and have shared this correspondence with the newspaper to make it aware of your concerns.

Best wishes,



Isabel Gillen-Smith
Complaints Officer






Dear Ms Gillen-Smith


I am writing to request a review of your decision in line with your offer to do so.


I do not accept that you have summarized the evidence put forward in the complaint fully. (I acknowledge that because all paragraph breaks were removed from the complaint by the online submission form, it emerged less clearly laid out than it could have been.)


The points you have summarized are factors that make the story unusual, but are not in themselves determinative.


That the story is linked to David Davies MP, and that it is on record that he has told the same story before about a different part of the UK, does however show on the face of it that there is a serious question about the story's accuracy (even without the other problems with it) to the extent that, unless this is explained, it would seem proper to infer that the story is untrue. I should perhaps have been more careful to separate out this observation from the more circumstantial points I made.

You say that the complaint 'does not raise a possible breach of the Code'. I would suggest that you appear to have conflated raising a possible breach with concluding whether there was in fact one. My complaint evidently does raise a possible breach regarding accuracy. That is the core allegation in it. You appear to be saying that if you might conceivably conclude after an investigation that there was no breach, you will treat the complaint as not raising that breach. This is surely a prejudgment.

I would respectfully suggest that since my complaint has raised a possible breach, and that sufficient problems with the story (especially the link to Mr Davies and his previous similar story) have been shown that there is a case for the newspaper to answer. It is therefore surely the job of Ipso to answer the question: was the story in fact accurate?

It may be that the newspaper has a good explanation for the problems (such as why Mr Davies told a similar story in two different parts of the UK at two different times) , but as far as I can see it has not yet been asked to comment. I would further suggest that to conclude that the story was accurate without further investigation or explanation from the newspaper would be so irrational that such a conclusion is not properly open to you at this time.

I will therefore again emphasize that I believe a review of your decision is appropriate.


Regards


Tom Evans

Thursday, 17 November 2016

Repost - How did so many MPs come to minunderstand the ESA cut in the same way?

Earlier this month, the House of Commons voted to proceed with a hefty cut to employment and support allowance (ESA) (the name for incapacity benefit and income support) since 2008).

To remain on ESA after the initial assessment, a claimant must score 15 points from these descriptors. Since 2008, anyone scoring 0, 6, or 9 points is moved onto jobseeker's allowance and is 'fit for work'. Qualifying for ESA is getting past a high bar.

The legislation passed abolishes the 'work-related activity component (WRAC)' (which replaced the disability premium in income support for people unable to work). The 'support component' remains, which also replaces the disability premium but for a slightly different subset of ESA claimants. (The difference is small and arbitrary, and is essentially whether the claimant scores all 15 points from one activity.)

The naming is Orwellian and does not describe the subject matter in a way easily understood. The thinking appears to be that by generously adding the words 'work' and 'employment', ill people unable to work would be persuaded into employment anyway.

Since most claimants are in the work-related group rather than the support group, the removal of the WRAC leaves the level of ESA the same as jobseeker's allowance for most claimants.

This week, I was appalled to see that the new Secretary of State put out a grossly misleading and false statement, claiming that people on ESA with a work-related activity component have been found to be fit for work.

I then noticed that my local MP, Andrew Turner, has put out a suspiciously similar statement.

Further investigation uncovered no less than 13 MPs who has all repeated almost the exact same statement, often ironically decrying the 'misunderstanding' that the cut affected people who are ill.

It seems clear that MPs were lobbied on a factually incorrect basis and were misled into voting for the cut under false pretences. Even Conservative MPs had threatened to vote down the budget over proposed PIP criteria changes so cannot be taken to fully behind all benefit cuts. But on almost any analysis, the ESA cut is harsher than the proposed PIP changes and may affect much more vulnerable and ill people.

Wednesday, 16 November 2016

Email to Andrew Turner MP

Dear Mr Turner

I am writing concerning the vote tomorrow (Thursday 17th Nov) proposing to reverse the abolition of the work-related component of Employment and Support Allowance.

Although I am not a supporter of your party, I consider that you are an honourable man who have voted and spoken with your conscience in the past.

The previous vote to cut the ESA component was, I contend, tainted by a dishonest briefing of MPs by the government at the time as to what the proposal was, assisted by the deliberately confusing terminology. Many MPs, including I believe you, were told that the cut affected only those found fit for work. This was a lie as it affected only those found unable to do any work as defined under the stringent ESA criteria.

It was said that the money cut would be reinvested into supporting claimants to work. It has not been explained how this is possible when the people the money is to be taken from have been found unable to work.

It was said that the cut brought ESA into line with jobseekers Allowance. This was not true, as a disability premium is available to disabled JSA claimants. The ESA component is the equivalent of this for people too ill to claim JSA. The cut therefore makes ESA less than JSA for the same claimant.

I feel strongly that a vote by Parliament tomorrow to keep the cut would be an endorsement of the government lying to MPs and as such, the only proper course is for Parliament to overturn the cut pending a full and honest reassessment of it.

I trust you will do what is clearly right.

Yours faithfully

Tom Evans

Monday, 21 March 2016

My response to the PIP consultation to reduce the points for aids and appliances

Iain Duncan Smith resigned this week, ostensibly over the plans announced by George Osborne to reduce the score for claimants who need to use some aids and appliances in Personal Independence Payment.

IDS implied that this was a new policy that had taken him by surprise.

This is odd because his department had announced such a policy in December 2015, and had made it clear that the initial plan was for a larger reduction than was ultimately agreed following the public consultation. In fact, the final proposal he apparently considered unconscionable was more generous than any of the five options offered in December.

This was my response to the consultation in December:-



Response to Consultation — Aids and Appliances in Personal Independence Payment

From the Welfare Rights Department of  --------

Issue one – the number of claimants scoring solely through aids and appliances

1.       We note that one of the concerns raised by the consultation is the number of claimants scoring all of their points through a need for aids and appliances. Our experience of PIP assessment reports suggests that this figure may be misleading because of a trend for assessors to favour the aids and appliances descriptors over descriptors indicating a need for help from another person, where both descriptors are met.

2.       At present the difference is frequently not material to the outcome, and where this is the case, goes unchallenged. Should the qualifying criteria be changed in any of the ways suggested, we would anticipate that a significant proportion of those presently being scored as needing only aids or appliances would have grounds to challenge the selection of the aids or appliance descriptor. An example would be a client of ours who could not cook and prepare food for himself safely (due to blackouts) being scored as needing an aid or appliance. Because he was happy with the overall award level, there was no need for him to challenge this descriptor.

3.       We would also note that Paul Gray’s Independent Review does not specifically raise this as an area of concern in the sense implied. The Review raised a concern that claimants might be awarded a scoring descriptor where they had chosen to use an aid or appliance but did not need to use one. This is a valid operational concern, as the PIP criteria already do not support an award in those circumstances. We do not consider that the Review was recommending any change to the qualifying criteria.

Issue two — the claimed broadening of the meaning of aids

4.       The consultation raises particular concern that the meaning of ‘aids and appliances’ has been broadened by upper tribunal decisions. We do not agree that this has occurred.

5.       The PIP2 form has acknowledged from the beginning that a perching stool is an aid or appliance, as did the 2012 consultation on the criteria, so it is clear that seats and chairs were intended to be included in the definition. Lighter pans are also mentioned specifically. The important question is whether the claimant needs to use the aid to achieve the relevant, fairly undemanding, daily activity and not whether they possess or have paid for one.

6.       We would also note that it was clear to the drafters of the regulations that ‘spectacles or contact lenses’ would come within the meaning of aids or appliances if not specifically excluded from Activity 8. The decision not to exclude chairs, perching stools, and other everyday devices was therefore a deliberate policy choice.

7.       In conclusion, we do not agree that this premise of the consultation is factually accurate.

Issue three — the assessment of extra costs

8.       One of the solutions raised by the consultation is to replace the daily living component with a lump sum payment to purchase aids and appliances. We consider that this reveals a misunderstanding of the concept of extra costs, which was perhaps prompted by a single sentence in Paul Gray’s Review.

9.       It is made clear in the 2012 consultation that the criteria for PIP are considered to be a proxy assessment of a representative cross section of the claimant’s functions:

38 The activities have been carefully selected to act as a proxy for participation, levels of need and likely extra cost. We have not sought to assess each and every activity an individual might perform on a daily basis but rather we have selected a range of activities which cumulatively act as a good proxy. For example, individuals who have difficulties dressing and undressing are likely to have difficulties in other areas that involve bending and reaching, while individuals who have difficulty preparing food are likely to have difficulties carrying out other activities that require manual dexterity.

10.   The intention appears to be that a claimant who has some difficulty bending and reaching, for example, should score under dressing to reflect this limitation in bending across daily life.

11.   The extra costs may come in an almost open-ended number of ways such as needing to have purchases delivered, to shop locally at higher cost, to pay for domestic help, gardeners, simple home maintenance, heating, extra living space, taxis et cetera; combined with probable reduced earnings and reduced opportunities for work. The PIP assessment is the proxy for qualification but is not an assessment of the amount of the costs.

12.   The Review (somewhat by the way) mentioned the low cost of purchasing some aids and appliances, and this appears to be have been taken up by this consultation in its claimed Illustrative Examples. However, PIP is not intended literally to reflect the cost of purchasing aids and appliances, but to reflect extra costs in general via a proxy assessment of functional difficulties. In the examples given, needing to sit to prepare a simple meal, breathlessness dressing, and needing to use a sink for support just to get off the toilet are indications of significant disability rather than direct financial costs. To suggest otherwise is to misuse the nature of the assessment within its own stated terms.

Issue four — the options

13.   In light of the above, we consider that options one to three are flawed as they are founded on mistaken premises that the rate of PIP is related to direct financial need arising from activities 1-12. (There would presumably be no equivalent mechanism under these options for people who can demonstrate that their direct financial costs from these activities are in excess of £139.75 per week to claim for these costs through PIP.)

14.   Options four and five are logically valid if the aim is simply to restrict the number of people who qualify by raising the bar. Provided this is openly acknowledged to be the aim, this may be a legitimate policy but will cause hardship. We would suggest that two of the stated changes in PIP: face to face assessments and regular reviews, have found more people to qualify than was assumed would be the case and that this should also be openly acknowledged for any changes to have a legitimate foundation.

15.   We would however urge for proper consideration to be given to an option of making no changes to the criteria, along with an acknowledgment that the original assumption that face to face assessments alongside regular reviews would lead to a large reduction in awards appears now to have been incorrect.