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. 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.
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.
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’. Training of these ‘rules’ was also independently
recorded in undercover filming.
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.
What has been now admitted is that assessors
for ESA work to ‘statistical norms’.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.
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. 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. 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.
