Post by nickd on Oct 3, 2012 21:02:48 GMT 1
Just watch the video...
It highlights acts of shame & deception
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Here's a factual account of Hester's case
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I'm all too familiar with Hester's case because I helped her through her appeal; I am also grateful to her for agreeing to 'go public' over the difficulties she's faced grappling with a system which frankly just doesn't work. I've stayed in contact with Hester and her mother to see what happened after her appeal was first heard over a year ago (the first hearing was adjourned).
Hester's case provides us with the evidence of what's going wrong as claimant's get trapped in a perpetual cycle of injustice and a revolving process of appeal followed by reassessment followed by another appeal. This case amply demonstrates how we get it right whilst the State gets it wrong, it also shows up Atos as being inconsistent in their assessment. It is important to consider this in the context of the cost to the public purse; I say this with particular regard to how when legal aid is withdrawn next March Hester will no longer be able to access any statutory funded advice to help her through similar situations in the future.
So let's pick this apart in the usual Mylegal way and see what really happens to a young disabled claimant battling with the benefits system.
Remember that what Hester is appealing for is support into work, she wants to work and the system is doing nothing to help her. Indeed it seems that the benefit system has actively contributed to Hester remaining on benefits because it has done nothing to help her in to work, she has even been encouraged to claim benefits by the Jobcentre rather than pro-actively being helped into work.
Hester has a combination of complex problems including a visual problem she has suffered from since birth. Her condition first came to the attention of Atos when they conducted an occupational health assessment report. The report completed in 2007 wasn't a tick box assessment, it required the healthcare professional to write up a comprehensive report with detailed comment on the problems Hester was likely to come up against. The Atos occupational assessment looked at different subject headings and was completed by a doctor rather than a registered nurse.
Amongst the Atos occupational healthcare assessment findings the doctor concluded:
The occupational assessment noted that Hester had a 'non-verbal learning learning difficulty which had been diagnosed by a clinical psychologist. It was also recorded that she suffered from "Belpharophimosis, ptsosis and Epicantus Inversus". The report is a thorough one which adequately recognises the problems Hester faces both physically and mentally; most importantly it is individual to her.
Hester's problems (as so often happens when anyone completes the ESA 50 self assessment questionnaire) are confounded by a difficulty in communicating the extent of her limitation within the context of a workplace environment. Of particular importance is question 9. This relates to the 'pre-Harrington review' range of descriptors. Question 9 relates to Hester's visual problem, it's by no means her only problem but it is one which causes her significant difficulty.
In the ESA 50 form Hester is asked:
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Here's what Hester was NOT asked. These are the actual regulations behind question 9:
You will see there is a distinct difference between the claim form and the regulations. Hester is only given an opportunity in the form to answer questions which ask her what she CAN do whereas the regulations specifically look at what she CANNOT do. It's very misleading for claimants and detracts from establishing the facts relating to what the claimant cannot manage.
The fact is that the regulations are all built upon establishing the level of limitation experienced by a claimant. The ESA assessment is after all called the 'Limited Capability for Work Assessment' rather than the more generally used expression 'Work Capability Assessment'. The assessment in its regulatory form looks at limitation whereas Parliament and the DWP promotes the assessment as one relating to capability, there's a world of difference.
The form misleads people like Hester from the outset because it focusses on what she can do, whereas the regulations look at what she cannot do. The problem continues right throughout the decision-making process. It is noteworthy that Hester is not asked to comment on her fields of vision or advised to contact her optician who would have been able to give her an opinion on this.
If you say to someone:
What can you do?
instead of:
What can't you do?
You will get very different answers.
A further fundamental failing in the form is that in asking Hester about vision in question 9 it does nothing to ask her about problems which could be associated with her complicated condition. In gathering information for Hester's appeal it was necessary for me to gather some information about the condition Hester suffers from. You can see how complex a condition it is by using this link.
Since Atos assessed Hester in 2011, the rules have changed again under what are known as the 'post - Harrington review' rules. Here's an extract from how Atos are guided in considering the question of vision when assessing claimants:
"This activity not only relates to visual acuity (central vision and focus) and visual fields (peripheral vision) but takes into account the persons ability to adapt to their condition. The person’s confidence and training must be taken into account. Within the modern workplace, many adaptations can be made to accommodate those with visual impairment."
It places an importance on establishing the importance of 'confidence' and the 'workplace'. There's nothing about this in the original ESA 50 or the modified ESA 50 form, people are being deliberately distracted from being made aware over how they should be assessed. It's no better post Harrington as we will go on to look at.
It's also interesting to note that the Atos healthcare assessment in 2007 didn't require Hester to fill in any form, it relied on a much more open questioned approach being used by the assessing doctor. The 2007 occupational assessment elicited the right information, whereas the ESA 50 appears to thwart the prospects of getting it right before the assessment has even begun. It is upon the questionnaire that Hester is assessed for her Employment & Support Allowance.
Remember Employment & Support Allowance is meant to be about supporting people with a limitation in to work.
So let's take a look at Hester's ESA assessment
How would YOU like to be assessed by a computer?
Find out what happens to Hester in the next post where we look at how she was assessed by Atos, we'll then look at how the DWP looked at the evidence, how she had to appeal and then what helped she received from the Work programme in being helped in to work.
More soon...
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It highlights acts of shame & deception
- The deception is government says it wants to help disabled people back in to work
- Hester is in her 20's, she's disabled and wants to work
- Employment & Support Allowance is meant to help people like Hester
- Here's the deception; it doesn't and never will do.
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Here's a factual account of Hester's case
- Hester was occupationally assessed by Atos on the 22nd November 2007
- PLUSS workers and Job Centre recommended that Hester should apply for DLA and Incapacity Benefit.
- Instead she chose to look for work returning to college 2009/2010
- In 2010 Hester claimed JSA and received no help
- 2010 November:Job Centre and Hester's MP recommended that she should apply for ESA in order to get support into work.
- 16th December 2010 claimed ESA (assessment phase)
- 23rd March 2011 ATOS Work Capability Assessment
- 30th March 2011 ESA disallowed (0 points)
- 30th March 2011 Hester appeals (assessment phase)
- Hester went to see her MP who wrote to Atos/DWP
- On July 21st 2011 Hester attended first CAB appointment
- Case adjourned 7th September 2011 at Tribunal
- 18th November 2011 Tribunal decides Hester's case - decided in her favour (placed in Work Related Activity Group)
- 17th January 2012 - Hester sent out another ESA reassessment form
- ATOS assessment
- 1st October 2012 Hester turned down for ESA
- Hester now has to go through the whole cycle all over again.
[/li][/ul]
Hester's case
I'm all too familiar with Hester's case because I helped her through her appeal; I am also grateful to her for agreeing to 'go public' over the difficulties she's faced grappling with a system which frankly just doesn't work. I've stayed in contact with Hester and her mother to see what happened after her appeal was first heard over a year ago (the first hearing was adjourned).
Hester's case provides us with the evidence of what's going wrong as claimant's get trapped in a perpetual cycle of injustice and a revolving process of appeal followed by reassessment followed by another appeal. This case amply demonstrates how we get it right whilst the State gets it wrong, it also shows up Atos as being inconsistent in their assessment. It is important to consider this in the context of the cost to the public purse; I say this with particular regard to how when legal aid is withdrawn next March Hester will no longer be able to access any statutory funded advice to help her through similar situations in the future.
So let's pick this apart in the usual Mylegal way and see what really happens to a young disabled claimant battling with the benefits system.
Remember that what Hester is appealing for is support into work, she wants to work and the system is doing nothing to help her. Indeed it seems that the benefit system has actively contributed to Hester remaining on benefits because it has done nothing to help her in to work, she has even been encouraged to claim benefits by the Jobcentre rather than pro-actively being helped into work.
Hester has a combination of complex problems including a visual problem she has suffered from since birth. Her condition first came to the attention of Atos when they conducted an occupational health assessment report. The report completed in 2007 wasn't a tick box assessment, it required the healthcare professional to write up a comprehensive report with detailed comment on the problems Hester was likely to come up against. The Atos occupational assessment looked at different subject headings and was completed by a doctor rather than a registered nurse.
Amongst the Atos occupational healthcare assessment findings the doctor concluded:
"Hester should start with a phased introduction to part time work"
"Hester needs a supportive and empathetic approach"
"She will be unable to make her own way to work until she becomes familiar with the route and will require a taxi door to door to start with, or a companion on her journey to work on public transport"
"She would need a careful demonstration of tasks and supportive mentoring/buddying until she is familiar with the tasks"
"She gets lost easily"
"She has poor memory"
"Cannot use both eyes together - gets double vision"
"Hester needs a supportive and empathetic approach"
"She will be unable to make her own way to work until she becomes familiar with the route and will require a taxi door to door to start with, or a companion on her journey to work on public transport"
"She would need a careful demonstration of tasks and supportive mentoring/buddying until she is familiar with the tasks"
"She gets lost easily"
"She has poor memory"
"Cannot use both eyes together - gets double vision"
The occupational assessment noted that Hester had a 'non-verbal learning learning difficulty which had been diagnosed by a clinical psychologist. It was also recorded that she suffered from "Belpharophimosis, ptsosis and Epicantus Inversus". The report is a thorough one which adequately recognises the problems Hester faces both physically and mentally; most importantly it is individual to her.
So all in all it would be quite reasonable to conclude Hester would need some support into work.
Hester's problems (as so often happens when anyone completes the ESA 50 self assessment questionnaire) are confounded by a difficulty in communicating the extent of her limitation within the context of a workplace environment. Of particular importance is question 9. This relates to the 'pre-Harrington review' range of descriptors. Question 9 relates to Hester's visual problem, it's by no means her only problem but it is one which causes her significant difficulty.
In the ESA 50 form Hester is asked:
|
[/li][/ul][/td][/tr][/table]
Here's what Hester was NOT asked. These are the actual regulations behind question 9:
(9) (Regulations) Vision including visual acuity and visual fields, in normal daylight or bright electric light, with glasses or other aid to vision if such aid is normally worn.
|
You will see there is a distinct difference between the claim form and the regulations. Hester is only given an opportunity in the form to answer questions which ask her what she CAN do whereas the regulations specifically look at what she CANNOT do. It's very misleading for claimants and detracts from establishing the facts relating to what the claimant cannot manage.
The fact is that the regulations are all built upon establishing the level of limitation experienced by a claimant. The ESA assessment is after all called the 'Limited Capability for Work Assessment' rather than the more generally used expression 'Work Capability Assessment'. The assessment in its regulatory form looks at limitation whereas Parliament and the DWP promotes the assessment as one relating to capability, there's a world of difference.
The form misleads people like Hester from the outset because it focusses on what she can do, whereas the regulations look at what she cannot do. The problem continues right throughout the decision-making process. It is noteworthy that Hester is not asked to comment on her fields of vision or advised to contact her optician who would have been able to give her an opinion on this.
If you say to someone:
What can you do?
instead of:
What can't you do?
You will get very different answers.
A further fundamental failing in the form is that in asking Hester about vision in question 9 it does nothing to ask her about problems which could be associated with her complicated condition. In gathering information for Hester's appeal it was necessary for me to gather some information about the condition Hester suffers from. You can see how complex a condition it is by using this link.
Since Atos assessed Hester in 2011, the rules have changed again under what are known as the 'post - Harrington review' rules. Here's an extract from how Atos are guided in considering the question of vision when assessing claimants:
"This activity not only relates to visual acuity (central vision and focus) and visual fields (peripheral vision) but takes into account the persons ability to adapt to their condition. The person’s confidence and training must be taken into account. Within the modern workplace, many adaptations can be made to accommodate those with visual impairment."
It places an importance on establishing the importance of 'confidence' and the 'workplace'. There's nothing about this in the original ESA 50 or the modified ESA 50 form, people are being deliberately distracted from being made aware over how they should be assessed. It's no better post Harrington as we will go on to look at.
It's also interesting to note that the Atos healthcare assessment in 2007 didn't require Hester to fill in any form, it relied on a much more open questioned approach being used by the assessing doctor. The 2007 occupational assessment elicited the right information, whereas the ESA 50 appears to thwart the prospects of getting it right before the assessment has even begun. It is upon the questionnaire that Hester is assessed for her Employment & Support Allowance.
Remember Employment & Support Allowance is meant to be about supporting people with a limitation in to work.
So let's take a look at Hester's ESA assessment
How would YOU like to be assessed by a computer?
Find out what happens to Hester in the next post where we look at how she was assessed by Atos, we'll then look at how the DWP looked at the evidence, how she had to appeal and then what helped she received from the Work programme in being helped in to work.
More soon...
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