Tuesday, 3 September 2013
Why ATOS are getting it wrong - Part 3
3. Misinterpretation of descriptors
This is something Greg Wood has talked about a lot, so I won't repeat it all in so much detail. I highly recommend his posts on the subject - he is completely correct to assert that this is an area of significant concern. The descriptors for ESA are here: to get or retain ESA, the claimant must score 15 points. Points are combined, but only one descriptor from a single activity can apply at once.
Although the LIMA system seems to award or rule out some descriptors, it is also clear from the manual that the assessor has a certain level of input as to when to award a descriptor as well. Since whether a descriptor applies is a legal question and not a matter of personal discretion, it is vital that the correct legal test is applied.
One particular problem seems to be what I would call an improper 'all or nothing' test. This is where if the assessor rules out the highest descriptor but doesn't appear to bother to check whether a lower one might apply. For example, a claimant states they can manage to see family every day. No points are awarded for activity 16 - dealing with other people. But hang on: what about 16 (b) and 16 (c) - these could still apply, as they relate to unfamiliar people, so more information is needed before ruling them out.
Similarly, I've seen monthly blackouts scoring no points, despite apparently scoring 6 points for activity 10. The assessor claimed that monthly was not significant enough to score points - but that isn't right - it's not what the descriptors say. A personal view of what's 'significant' can't override the clear wording of the law, but that seems to be what is happening.
The converse of 'all or nothing' is the 'bottom up counting' error. This occurs when the findings suggest that a high level descriptor applies - maybe one scoring 15 points - but instead a lower descriptor is awarded that is also applicable. For example, if a claimant has two blackouts a week, both descriptors 10 (a) and 10 (b) apply. Since only one of them can be awarded, the higher of the two should be awarded. 'Bottom up counting' leads to the lower wrongly being awarded.
A person who should have scored 15 points from a single descriptor thus ends up with fewer, and is kicked off ESA. I've seen this happen to several people.