Severe mental health problems & 'fit for work'

[Patrick Torsney]

Here is a case study from a Welfare Benefits specialist at Bolton CAB. The early intervention of the legal adviser correctly identified the wrongful termination of a person's disability benefit. The client, Mrs B, had been deemed fit for work despite clearly suffering a severe psychiatric illness, which had been even been clinically diagnosed. The intervention of the legal adviser, funded under legal aid, resolved the issue for Mrs B, so avoiding costly and lengthy tribunal proceedings. The agency was paid a fixed fee of £167 for the work. Under the current proposals, Mrs B would not receive any legal help. The question is this, what would happen then and, how much would the cost be to the state...?

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Mrs B is a 46 year old lady with severe mental health problems.

She approached us due to her Employment Support Allowance (ESA) stopping after she failed a Work Capability Assessment (WCA). The Department of Work and Pension (DWP) used the provisions of Regulation 19 of the Employment Support Allowance regulations 2008 as its justification for doing this.

Mrs B was (and is) under the care of a psychiatrist, and it was obvious from observations and detailed discussions about the criteria for the benefit that she was not fit for work and ought to have passed the assessment.

We obtained a report, using the Legal Aid scheme, from Mrs B’s psychiatrist detailing her problems and their affects on her every day life and as a result of the information provided to the department of work and pensions to support the case we were able to use this to get a reconsideration of the original decision in the client’s favour and this saved Mrs B the trouble of attending an appeal and also the cost of the appeals process.

[sharnden]

We are a charity who help people with mental health problems. We regularly see client's who have severe and enduring mental illness, have attendedn ESA medicals, and scored 0 points.
We have successfully appealed all of the cases using the legal help scheme.
The reason they score 0 points is two fold.
1. The ESA50 form gives no assistance to a person who has poor insight into their condition. They complete the form themselves and indicate they have no problems.
2. The Atos medical assesors appear to have no knowledge of Regulation 35 of the ESA regulations 2008, nor do the ESA DM's or benefit processors.

reg 35 states as follows;

Certain claimants to be treated as having limited capability for work-related activity
35—(1) A claimant is to be treated as having limited capability for work-related activity if—
(a) the claimant is terminally ill;
(b) the claimant is—
(i) receiving treatment by way of intravenous, intraperitoneal or intrathecal chemotherapy; or
(ii) recovering from that treatment and the Secretary of State is satisfied that the claimant should be treated as having limited capability for work-related activity; or
(c) in the case of a woman, she is pregnant and there is a serious risk of damage to her health or to the health of her unborn child if she does not refrain from work-related activity.
(2) A claimant who does not have limited capability for work-related activity as determined in accordance with regulation 34(1) is to be treated as having limited capability for work-related activity if—
(a) the claimant suffers from some specific disease or bodily or mental disablement; and
(b) by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work-related activity.

It is obvious to us that a person with a severe mental condition satisfies this regulation, that is why it has been legislated for.

[nickd]

As welfare benefits specialists (funded by LSC) covering much of the South Devon area we are experiencing a greatly increased workload in appeal work, many of our clients tell us how they would never manage to obtain justice in Social Security appeal tribunals without our assistance. We are currently campaigning our clients to participate in MyLegal by telling us their own stories. Where our clients provide their express consent to publicise their stories we will post these on Mylegal so the information can be used to challenge proposals to remove Legal Aid in these essential areas of social welfare law. The current economic climate is a time when people are increasingly in need of our services. This is no time to propose cuts in our funding which will seriously disadvantage those who turn to us as their voice in overturning unjust decisions. Follow Bolton's CAB's good example by providing as many stories as you can , it's real life stories which can be used to highlight the essential work we do, these stories are out there and need to be told, so let's hear them!