Employment & Support - The 'mental minefield'

[nickd]

A claim for Employment & Support Allowance..





Can be full of problems for people claiming on mental health grounds....


A claim for Employment & Support Allowance made on mental health grounds often follows a particularly difficult happening, illness or event. In this article we take a look at how we decide whether someone is entitled to claim. It is not always quite the easy 'claimant journey' portrayed by the Jobcentre Plus. A person can find themselves claiming Employment & Support Allowance in different ways, their claim could follow a period on Statutory Sick Pay, it could be a direct claim to the allowance or a person may end up having their Incapacity Benefit related (including those claiming Income Support on the grounds of Incapacity) claim converted to an award of Employment & Support Allowance. Claims for Employment & Support Allowance can be made solely on mental health grounds or quite often they are combined with physical problems as well. In this article we are only going to be looking at Employment & Support Allowance claims related to mental health problems.


This article is related to a secondary one which provides more information about the process by which a claim for Employment & Support Allowance on mental health grounds is determined in law. Please use this link for more details. This is a hard hitting article which deals with some quite brutal situations such as suicide. I must discourage any one who may be sensitive to or affected by such issues from reading further. This is real life stuff which affects people in all sorts of ways, it expresses some of the real experiences I have encountered in advising often highly distressed clients during the course of my work as a welfare benefit specialist. If you are affected by such issues there is a link to the Samaritans here. You can call them on 08457 90 90 90 if you feel you would like to talk to someone.


A client claiming Employment & Support Allowance through any of the routes I have referred to may find themselves claiming sometime after they became unwell, it may be possible to claim the allowance on a backdated basis. You may need to submit a claim for Housing & Council Tax Benefit at the same time. In some cases you may be able to claim help towards your mortgage interest costs. Employment & Support Allowance may be awarded on the basis that you have paid sufficient National Insurance Contributions (contribution - based) or providing you do not have excess income or capital you may qualify for an income - based variant. You can find out more about claiming Employment & Support Allowance here.


It can all be very confusing, especially when you are facing a tough time, it will involve making telephone calls or a claim on-line, it can be very frustrating and claimants can be given conflicting information over whether they are able to claim. You can access free of charge help from a Citizens Advice Bureau by clicking here, help is also available from local welfare rights offices, law centres, local Councils and a number of very good sites accessible via social media. There is also access to advice sources right here on Mylegal. You should not have to pay anything for advice from any of the links on this page.


So that's the practical stuff out of the way. Next we take a much more in depth look at the problems encountered by those claiming Employment & Support Allowance on mental health grounds. We will take a look at some of the judgements we all make, the ones we make on first impressions, those we make on our morals, those made on financial grounds, the ones made by clinicians, those made by the healthcare professionals who assess you, and finally we'll take a look at how the decision - makers employed by the Jobcentre Plus and independent Tribunals decide entitlement according to law. Employment & Support Allowance is decided by a process of assessment which potentially discriminates against metal health claimants and is currently subject to an important case for judicial review which you can find more about via the Guardian here.


In the Judicial review the judge has already described the assessment system as "pretty crude". Judgment has been reserved until a later date but it follows calls by the British Medical Association (BMA) to have the 'Work Capability Assessment' scrapped on the grounds that it is causing distress to thousands of people with long-term health conditions who are being deemed fit for work.


So let's take a look at a hypothetical client and consider the situation in which they may find themselves and the process by which their entitlement is determined. Let's start by taking a look at how this may make you feel or react in a pretty drastic situation; it requires a fair bit of soul searching and you need to honest with yourself. There will be more in the next post when we have our first 'encounter' with a client in an all too real situation (more tomorrow)....

[nickd]

What's this person thinking?







Who knows - who cares?



Yes it is quite chilling if you really look at the picture, try and imagine it's very windy and recall that feeling you get when you look over the ledge of a very high building; you'll recall that sense of fear. Try and imagine what our person may be thinking? I want you to imagine this person and ask yourself whether they are worthy of some support from the State.


The reason I've brought you here is because this is reality, this is what it is like for people who are on the edge. Some of them act it out in their mind, others go beyond this stage and put themselves in this situation for real. It is what happens to a person which determines whether they get this far. Those that just contemplate it aren't perhaps as vulnerable as our stranger is on the top of this cliff; but they are vulnerable to the risk of taking it this far. Please don't think this is using extreme examples which benefit specialists never get to hear about. I can tell you that before lunchtime yesterday I had listened to two completely separate but equally harrowing tales; both of which graphically expressed the dreaded word we don't like to talk about; the word 'suicide' - horrible isn't it? This is what a fair number of benefit claimants with mental health problems find themselves thinking about on a regular basis; in my view it makes them eligible for a degree of compassion and that's why we're here. I'm trying to tell you that our current benefit system just doesn't do compassion.


Of course our person could just be someone who is able to throw caution to the winds and sit on the edge marvelling at the view; there again they may be someone who finds themselves well and truly 'on the edge'. This would I guess be the kind of chilling view many see moments before deciding to take the plunge in exiting from a world which to them seems increasingly hostile, uncaring and unable to offer them anything worth living for. The sad reality is that since 2007 there has been a shock rise of 15% in the number of suicides which can be related to rising unemployment & financial hardship; some areas are seeing rates soar by as much as 50%. This isn't a nice subject, it's not an easy one to decide to write about but it is one which has a relevance to the devastating impact troubled times are having upon people. In my work as a welfare benefit specialist I all too often get to listen to people who are simply living in fear of the far reaching consequences of the financial meltdown. These people are a by - product rather than the cause of our current economic crisis. I recently recorded just a few examples of the troubled life stories revealed to me in one of my many working weeks as a benefit specialist; these people are genuinely living in fear.


In the recent legal aid reforms, government decided in its questionable wisdom to abolish access to welfare benefit specialists on an absurd assumption that by and large we just spend our time helping our clients fill in benefit forms, the reality is we hate filling in benefit forms. The reason we hate form filling is shared by none other than our very own Prime Minister who expressed his heartfelt desire in putting paid to the days when getting the right benefit help meant having to answer more questions than you would when "applying for a mortgage". In his address to the National Autistic Society on the 16th July 2009 David Cameron fully recognised the need for benefit specialists as he pledged to helped disabled families. You can read David Cameron's once promised pledges here. In his speech David Cameron put the benefit specialist on the same plateau as he did "doctors, paediatric nurses & physiotherapists". You might think that far fetched, I can tell you though that our work does help save lives. It can make all the difference as to whether or not a person feels sufficiently valued to carry on. Whereas kicking them has the very opposite effect. You wouldn't kick our person on the cliff edge would you? yet many of us do so from our warm offices, from our social chats in the pub and when nodding in agreement with today's hostile media.


David Cameron was of course speaking from his personal and bitter experience following the very sad death of his son Ivan who died aged 6 from severe epilepsy and cerebral palsy in February 2009; the Prime Minister in his speech related to the complicated claim process involved in the completion of a 40 page Disability Living Allowance questionnaire. It is with no disrespect to the memory of the Prime Minister's son that we can fairly safely say that any claim made on Ivan's behalf would hopefully have been a more straightforward process because by and large such claims are more compassionately assessed in profound disability cases. It's by no means always the case but profound & more readily identifiable disability tends to be better recognised by the doctors and decision - makers. The difficulties become far more problematic when you start to assess claimants who have less easily identifiable mental, intellectual function & cognitive impairment health related problems. David Cameron recognised this in his work with the National Autistic Society (it was his party which presented the first Autism Bill); he specifically cited the need for more support to help autistic adults in more actively integrating into society:


"A third of adults with autism have suffered severe mental health problems because they lack the right support. Just fifteen per cent of those on the spectrum are in full-time, paid jobs. Too many feel locked out of society when they could be playing an active part."


Although he can speak from the personal experience of his severely disabled son, it is with regret that David Cameron appears to have lost his perception of the huge difficulties faced by thousands of claimants who may have a a harder to define limitation but none the less are in need of support to help them integrate into society, many of them would dearly like to be able to go to work. Ironically it is the more recently introduced Employment & Support Allowance introduced in 2008 (replacing the previous Incapacity Benefit introduced in 1995) which should be providing claimants with this essential support. Few people comprehend the key differences between the older Incapacity Benefit and its replacement.

• (1) Incapacity Benefit simply determined whether claimants were capable or incapable of work.
  
  
• (2) Employment & Support Allowance seeks to determine:
  
  
• (A) Which claimants have no or insufficient limitation and are deemed capable of all work.
  
  
• (B) Which claimants have limitations and need support to help them back into work (Work Related Activity Group)

[/i]

[/li][li](C) Which claimants are deemed incapable of work (Support group)[/li][/ul]

So there are fundamental differences between Incapacity Benefit and Employment & Support Allowance.


Now take our person at the top of this page teetering on the edge of that perilous cliff and ask yourself which of the three Employment & Support Groups (A B or C) should he or she be placed in?


You cannot possibly know, so let us start to look at how you may go about formulating a judgment. We'll meet back at the cliff top tomorrow and we'll talk more about the judgments which we all too easily make. I want you to think about how different your judgment would be if it was made at our cliff top because ultimately that is where our person has decided to make their choice; it may help you distinguish between the dangers of making judgements which are made in isolation from the reality of what we're dealing with in serious situations such as this. [/b][/color][/i]


If you are affected by what you read here there is a link to the Samaritans here. You can call them on 08457 90 90 90 if you feel you would like to talk to someone.

[/size]

[nickd]

Your judgement...







Will be very different when faced
with a real situation...


In this post I want you to have a think about how you make a judgment; ultimately it's what this is all about. In the previous piece I asked you to have a think about the person on the edge of this perilous cliff, today I want to ask about how YOU judge people.


We are all make judgements, each and everyday. In my view the current economic climate has made us decidedly more judgmental in how we look upon others. We all know that certain someone who will tell us about how they know someone up the road; they have an inherent knack of knowing all about them, how they are on benefits and how they know for certain that there’s ‘sod all wrong with them'. They make no secret in telling us how they would like to see benefits cut because 'society is sick and tired of paying for lazy benefit cheats'. There are around 30 million people in Britain who claim at least one State benefit and despite all you hear the fact is that percentage wise only a very low number are proven to be making fraudulent claims. Despite the current emphasis on austerity we seem to be absolutely hell bent on clapping a benefit cheat in irons. The Sun newspaper has almost turned claiming benefit claiming in to an offence in itself, yet society doesn't seem to vent the same degree of anger towards those who cheat the country out of billions in tax as pointed out in this excellent article in by Tax Research UK. The true percentage of actual benefit fraud amongst all claimants is actually just a bit over 1%. With half the country claiming at least one State benefit (think about it - we can even include our Prime Minister) it's hardly surprising that you may end up reckoning you know someone who's a benefit cheat. I just wonder how many of you who wag the finger at benefit cheats with such pointed enthusiasm think nothing of dodging a bit of vat by falsely claiming it back through lets say a business when in reality you know very well you shouldn’t. You know what I mean, when you have perhaps splashed out on something for the wife like a new laptop or maybe a phone; you know damn well it's not something for your business at all. Isn't that cheating the State out of revenue in just the same way as someone cheating their benefits?


Remember what I'm trying to emphasise here is how you only think you know how to identify a benefit scrounger, we are looking at how people judge those they deem to be worthy or unworthy of support from the State. If you've read the post before I would assume that you ended up concluding you wouldn't have had the slightest clue in knowing what is going through the mind of our so far unnamed person on our cliff edge; unless of course you're some kind of mind reader that is, in which case well done - you're far more gifted than the rest of us! You may be able to recognise people with certain physical disabilities but working out who has a mental health related problems is nigh on impossible; they just don't go around with a big label marked ‘mental health’ on their forehead. There's an excellent article covering some Channel 4 footage over this very problem out by Amelia Gentlemen in yesterday’s Guardian – called “Channel 4 Goes Mad season challenges mental health stigma” ; it's well worth a read. The fact is that many of you out there will happily shame without so much as a name; papers like the Sun love you. If they tell you 75% of those claiming sickness benefit are ‘scroungers’ the unfortunate fact is far too many of you believe it.


But let's get back to our cliff top drama. What I would like you to think about is how you will react to the situation shown in the picture above. You're out for a walk and at first all you can see is the cliff top and the sea. But it all changes when you catch a glimpse of our person. You soon come to realise that your walk along the cliff path is all about to change. This is an encounter and you are going to have to make a judgment, the judgement you make could make all the difference to how this turns out. This is a judgement you end up making as you witness a real situation; it’s a million miles from making one in a cosy office, in the pub, in an Atos medical examination centre, in the DWP decision – making department or in a benefit appeal tribunal room.


Let's call our individual by the name Tom to give him an identity; I think it is very important that Tom has a name. Assume you are about 10 metres away from Tom and the wind is really blowing quite fiercely. Ton looks scruffy and unkempt, you can't see his face and he doesn't know you are there but he appears to be looking outwards towards the sea, he's definitely in a very dangerous position. How would you react, what would you do? What would go through your mind because ultimately this is what dictates what your next action may be? Bear in mind how Tom may feel perfectly safe as he sits and takes in the view, he may just be about to take one final leap for mankind. On the other hand Tom could be on a drug fuelled high or perhaps in a euphoric state of mania. You know absolutely nothing about Tom but do remember how your actions could end up startling him; the consequences of which I have to remind you may well turn out to be well and truly disastrous. This isn't a nice topic and for those of you who may feel upset by it I would advise you not to read any further; I'm saying this because I care and I'm all too aware this could affect someone’s state of mind quite drastically.


Ask yourself what your first impression might be? Then ask yourself what you would do? You could:

• Leave Tom where he is and walk away.
  
  
• Take a bit of time to gauge the situation before deciding whether to intervene; you might decide to call your mobile to summon help.
  
  
• You could shout out to Tom and tell him to get back from where he is precariously situated.
  

If you decided to answer 'walk away' then perhaps social welfare just isn't your thing; so I'll thank you for reading this far and won't be in the least offended if you leave the forum now. If however you've decided to read on or answered with either the second or third answer then I'd like to set you a little challenge. It's quite easy, absolutely painless and only involves you in registering on the forum; I'm just curious to see whether the numbers rise with this simple request. Yes, this article requires a bit of viewer participation - the way I look at is this; I care enough to write this stuff and it would be good for me to see how many of you care enough to show me you're actually reading it - it's my way of conducting my very own 'social conscience' poll - I live in hope !
[/b]


Tomorrow we learn a little bit more about Tom & maybe a bit more about ourselves....

[gianetti]

maybe i would gently sit down next to him and ask him how he is as knowing me i wouldn't have a mobile and i would want to help!

[nickd]

Many thanks gianetti for joining the forum and for being the first person to give a viewpoint on this - it would be good if maybe some others could too, anyone?

[edyourself]

I am already a member but...if not I would've joined up!

Fiona

[nickd]

Judging upon our perceptions







You cannot judge who you do not know...


I am heartened that at least two people decided to post their thoughts after yesterday's posting. People seem to be incredibly reluctant to express their thoughts on subjects such as this, it therefore pleased me immensely to see new member Gianetti join the forum and post the following:


"Maybe i would gently sit down next to him and ask him how he is as knowing me i wouldn't have a mobile and i would want to help!"


Out of the 1,000 registered views on this article I would call two posts and a comment pretty good going on the whole. There will be a whole host of different personalities amongst the 1,000 viewers who have been drawn to this post. Some will have read a couple of lines, others will hopefully have stayed with it and got round to reading this far; who knows how many will stay with it till the conclusion this weekend. Even those who logged off quickly will have arrived at a judgment when saying to themselves 'I can't be doing with this' - 'haven't got the time to read it all' - 'or blimey this is boring'. You get used to it when dealing with and trying to push the case for social welfare justice; few seem to want to listen. I think it is a sad reflection upon our current difficult times that we turn such a blind eye to social justice issues. As a welfare benefit specialist I am getting to see far too many welfare reform casualties, it's as though they are seen as fair game by a culture bred upon greed in blaming those in need; unperturbed I shall push on. What pleases me about Gianetti's comment is that it shows an inclination to get to know a little bit more about Tom. It's a vital but so often overlooked starting point in making the judgments we do.


Whilst Gianetti indicates a welcome willingness to try and befriend Tom, the vast majority of us will reflect upon whether to intervene only after we have formulated a judgment made upon our first impression of Tom, in most instances it will affect the entire judgment process which follows thereafter. Most of us will base our judgment upon our perception of others at first glance. I'm going to give you a bit of a head start and introduce you to Tom in two opposing guises.



First of all we have Tom - the 'scumbag'...




Tom the drug dealer



Tom comes from the roughest neighbourhood in town, he's on benefits, he takes class 'A' drugs, is always in trouble with the Police and is known for burgling people's homes to fuel his dreadful habit; you often see his name plastered all over the paper following just another of his many Court appearances. He's been in and out of prison and everyone calls him sheer outright 'scum'. You've heard endless bad rumours about how Tom is a parasitic drug dealer who has beaten the crap out of people who cross his path. Tom is the kind of bloke you keep well clear of. No one has anything good to say about him - he's just outright trouble.



Secondly, we have Tom - who you know from the past...




Tom who you used to work with



Tom is someone you know. Let's say you knew Tom from three years ago when you worked alongside him. You remember him as a good laugh, he often went along to the pub with you and your workmates. All in all he was a pretty good bloke; a pleasure to chat with as you enjoyed a pint or two. Tom was a real family man who worked really hard and enjoyed his job, he often talked fondly of his family and everything about him gave you an impression that he really enjoyed life. But then his wife left him, he started to take time off work, he ended up ringing in sick more and more often, when he did manage to come in it was all too clear he'd been drinking heavily from the night before. Tom became difficult to work with and you and your work colleagues ended up having to cover for him, he became a liability. Tom became awkward, unpleasant, often late and abusive towards others. You felt sorry for him but at the same time you were very relieved when he ended up getting the sack. Tom didn't make a fuss about his dismissal and left without even saying farewell. The last that you heard of Tom was that he had his home repossessed, his wife had moved away; taking the children with her. You heard he'd had some trouble with the Police over breaking an injunction when he tried to see his kids in breach of a Court order. You also knew he'd ended up on benefits and hadn't worked since his dismissal.


So now what are going to do? Come on be honest? Would your reaction be any different in treating 'good' Tom to the one most people seem to despise? Would you feel more confident in being able to talk to the 'good' Tom, whilst perhaps being a little nervous about approaching the 'bad' guy for fear he may end up taking you with him. Who deserves more of your support?

• The 'good' guy?
  
• The 'bad' guy?
  
• Neither?
  
• Both the same?

[/b]
[/li][/ul][/size]

You know his name - not his story


What I hope to have illustrated so far is how judgment calls can alter according to the situation in which you find yourself and your perception of the person involved. What you will never know is what our person thinks or senses. Unravelling life stories is often what being a welfare benefit specialist is all about. It's a complex, personal and immensely sensitive process. You cannot simply assess someone with a clip board and pen. People with complex mental health problems just do not
fit neatly in to the DWP's tick boxes. Assessing people in this way is frankly as daft as sending an ATOS health-care professional and DWP decision - maker to our cliff top then asking them to assess our Tom by applying the wretched 'Work Capability Assessment' - that would be absolute lunacy wouldn't you agree?


I can tell that as a welfare benefit specialist I have arrived at my office to be confronted by a detective instead of my first client of the day; the client having committed suicide only the day before, it sends a chill through you as it brings home the reality of what we are dealing with - real lives. Equally, I can recall other cases in which my clients have been affected by other traumas such as those relating to serious crimes like murder, rape, armed robbery, serious assault and early age sexual abuse. In addition to which I have listened to how lives have been dramatically changed by serious road traffic collisions, domestic violence, wrongful accusations, paedophilia, imprisonment, victims of fraud, as well as a broken relationships, redundancy and financial disaster. Yes these are all the kind of live events which bring people my way as they battle the State for a bit of 'support'. It's true to say that any of these horrible events could be the real core reason why the 'good' or 'bad' Tom finds themselves in the situation I have used here to illustrate my point.


Tomorrow we are thankfully going to move away from our cliff and take a look at the assessment process involved in determining whether Tom gets support - it's a million miles from our cliff top! Tomorrow we take a look at the 'judgment of aliens' - those who decide Tom's need of support from afar. I hope you'll join me in examining how utterly futile and farcical this charade of an assessment really is...

[howlingatthemoon]

I would definitely call for help, but I would also try to engage him in some form of conversation if he allowed it.

If not, I'd be inclined to sit as close to him as was comfortable and just allow him to feel that he was not alone on that edge..

[wildcandytuft]

I am certain that if I came across someone who appeared to be in trouble I couldn't walk away. I'd ask if they were okay firstly and take it from there. I'd like to think I was open minded. I recently tried to help a man who was staggering along the street, clinging to lampposts for support. Turned out he'd been drinking all afternoon and I was a little scared of him, but I did stop and try to call for someone to pick him up. I don't know what struggles he must have been going through, he just needed help. I'm sure it's human instinct to reach out to each other when we're in trouble? It's so apparently easy for Sun readers to pour out hatred anonymously online, and for neighbours to maliciously call hotlines in secret, but what if they met that person face to face and got to listen to the real story?

A member of my own family who claimed benefits (genuinely!) thought his neighbour was faking his bad back to avoid work and claim money. He saw him taking a boat out on fishing trips and labelled him a scrounger. That was until an ambulance turned up outside the man's house. The man across the street now walks around with the aid of crutches or a stick. Will people only believe a disability when it's made obvious and visible to them?

[nickd]

Judgment by aliens







What planet are they on?


'What planet are they on?' it’s an all too common question I find myself being asked as yet another worked up client comes my way clutching that all too familiar letter from the Jobcentre Plus; yes it's the one which has arrived in its manila envelope to tell my distraught client how very sorry the DWP is that they have deemed them unworthy of State support. It's become something of a standard joke as I ask my administrator which welfare reform gems await me in the day ahead, the word 'ESA' is a guaranteed response. 'Get away' I say as I get another blue pocket file ready to enshroud the 60 - 70 odd page wad of documents which we so fondly identify as the 'Secretary of State's submission'.

Writing these articles is always something of an experiment as you never know which ones will attract interest; it's pleasing to see this one catching on. To be honest getting four different people to add their compassionate comments and having no less than five new members register on the forum tells me I'm at least connecting with some of you out there who are in some way affected by all this. So to all of you I would like to say 'thank you' you have made my day; I genuinely mean it. But today I want to go a step further and look beyond those that have shared their compassion over Tom's plight; I want to talk about the aliens. No I haven’t yet gone mad, yes I really want to take a good hard look at all the aliens who between them make their distanced judgements over whether Tom is worthy of support. I suspect these are the people who Tom sees as alien to him - those who he sees as standing a million miles away from him on that windy cliff top which we visited in the previous posts....


Aliens en masse...







You! - The ‘general’ public


In all shapes and sizes, from all walks of life, some are nice - some are rotten; some sit somewhere in between. A mixture of gender, a blend of race, some are bigots, some are compassionate, some are young - some are old. Some will love you whilst others just hate you. Those who you may love regrettably may not reciprocate. Those that you loathe may just love you. This is by and far large the biggest bunch of aliens, there are millions of you on the planet and you know what? - each and every one of you has a say in what happens to our Tom. You can't blame it all on the government for their anti - benefit claimant stance without asking yourself who it was who put them where they are. You can't blame it all on those who voted for this wicked war on welfare without asking yourself who it was who never thought to vote against it. Whether you like it or not you are just one of the much wider general public who by far have the ultimate say in dictating what shapes the society we live in.

What's to stop our general public saying to their respective Member of Parliament; stop this war on welfare or else I give you notice that I will not vote for you? - The inescapable conclusion has to be that some just don't care, some can't be bothered, some are too busy and some actually positively like waging war on those who have to rely on welfare. Lets just face it some of you don't give a damn over what happens to our Tom - that's the reality which tells us heaps about the aliens we share our planet with.

Clients with mental health problems often tell me they panic in crowded places – are you one of the aliens who freak them out?


Aliens in power...







Aloof politicians



My sincere apologies to our chancellor of the exchequer - I just wanted an image which depicted the word 'aloof'. Sorry George but ever since that damn comprehensive spending review of yours, many of my clients see you as being just a little bit too harsh on them as they turn to the State in the absurd hope it may just recognise their need of support. Mind you the majority of my clients with mental health problems by and large see all politicians as aloof to their needs. If anything it is more often the well educated parents of my mentally ill clients who see the current coalition government as being culpable in the neglect of those they should be helping rather than hindering. Those with the more severe mental problems think very little about politicians, they tend to end up spending more of their time wondering how they are going to survive from one day to the next; it very often ends up keeping them awake well in to the small hours. The problem is that my clients see our politicians as their enemy; it undoubtedly exacerbates their paranoia. You have to see the effect this has upon people to appreciate how the actions of those in power appear to be making my clients even more unwell; it saddens me that some of my clients even feel the need to have to apologise for being a burden upon the state.

Indeed it sickens me that those with troubled minds are treated with such contempt.


Aliens in white coats...







Are distanced from people like Tom


There's a misconception surrounding the role which an Employment & Support Allowance claimant's own doctor may have had in signing their patient off as ‘sick’. In cases where a claimant may once have claimed the now phased out Incapacity Benefit the reality is that it may have been years since they last saw their own doctor. Let's say our drug fuelled Tom first claimed Incapacity Benefit 6 years ago in 2006. His own doctor would only have been asked to initially sign him off. The DWP would then have assessed him under what used to be called the 'personal capability assessment'. Providing Tom had passed the assessment, his doctor would have been told by the DWP that there was no longer any need for them to supply their patient with sick notes. Even now when an award is 'converted' from Incapacity Benefit to the newer Employment & Support Allowance there is no statutory requirement to even ask the claimant's own doctor for any evidence at all. It is only in the case of someone who has made a new claim for Employment & Support Allowance that evidence will be required from the claimant’s own doctor. Clients with mental health problems often tell me their doctor knows nothing about them. It is therefore hardly surprising that patients feel alienated from healthcare services. It is with complete irony that the DWP refuse to accept their culpability in leaving thousands of claimants out in the ‘welfare wilderness’ and now turn them down for Employment & Support Allowance for an apparent 'lack of medical evidence'. The lack of contact between a claimant and their doctor is not unique to this country, you can read of similar difficulties which are being experienced abroad. Is this alienation between the benefit claimant and their clinicians a deliberate attempt to prise them apart for fear they may support them? Or is it a merely a feature of a welfare state which is neglecting its duty of care? I rather suspect it is the former given how much I read about doctors who are simply up in arms over the inept process by which the DWP are contracting private healthcare professionals to assess the extent of mental health problems being experienced by claimants. The whole process is heavily condemned by almost every mental health organisation. To me it’s the sanity of nutty professor Harrington which we should be questioning – he has devised the most ridiculous mode of mental health assessment. I will show you ridiculous it is later on in this article.

Is it any wonder that mental health claimants feel so alienated from the State when it has so spectacularly failed to support them? Shouldn't we be wagging our fingers at the DWP for discouraging claimants from maintaining contact with their own doctors?


Aliens with laptops...







Just tap away at computers which all too often say NO!



You wouldn't dream of assessing Tom with a laptop on the cliff edge so why do the DWP's appointed 'healthcare professionals' use them in their equally cold and hostile examination centres? It is the computer aided medical assessment conducted by French IT form Atos which is seen as the most alien component of the mental health assessment used in determining whether people like Tom qualify for Employment & Support Allowance. The healthcare professional seems to spend more time tapping away at their laptop than they do in humanely interacting with the claimant as they work their way through the most bizarre choice of 'multiple choice' descriptors made available to the 'disability analyst' from the firm's infamous 'Lima Logic' computer software programme. The BBC reported the assessment by ATOS as one which was in meltdown because of increasing delays as people like Tom wait longer to be assessed. Atos should throw away their wretched logic based software system and revert back to trying human interaction. How can you possibly apply a logic based system to the completely illogical range of problems experienced by claimants who have muddled minds? How can you expect to illicit a logical answer from a person who is disabled from thinking logically?

People like Tom end up wondering why they ever bothered to step back from the edge only to have to endure an un-dignified assessment process which turns out to be nothing more than a computer based point scoring game which is specifically engineered to exclude people from getting support.



Aliens in call centres...







Conditioned in to treating claimants as targets



Tom’s battle with the aliens continues as he negotiates an increasingly telephone or internet based ‘customer experience’ It’s guaranteed to exacerbate his anxiety as he finds himself confronted by DWP / Jobcentre Plus frontline claim handlers who have been rebuked for being 'too friendly' to claimants. The customer journey is absolute torture to people like Tom who find themselves at their wits end as they try in vain to get someone to see them as a person rather than as a national insurance number. Read the Guardians exposure over how the Jobcentre Plus are being targeted to take people's benefits away. I have spoken with many very good people from the DWP and the Jobcentre, I know they exist but why are so many of clients telling me they receive a completely hostile reception when they eventually get through to speak with someone?


Aliens under stress...






Make bad judgments


With so many claimants such as Tom battling a welfare state which increasingly alienates itself from its duty to provide support, is it little wonder that the whole system is said by the Guardian to be in chaos as more and more people end up having to appeal for support. It's bad enough for a person with physical problem to face the indignity of having their disability put in question but can you imagine what a detrimental effect the denial of state support will have upon a person who has a troubled mind? We cannot deny how DWP decision – makers are being placed under unacceptable pressure to work their way through ridiculous workloads to help achieve benefit reduction targets. The standard of decision – making was far better in days gone by. The quality of submissions prepared by the State has no consistency, it is all too clear that some have been prepared by people who simply do not what they are doing. You can tell a submission which has been prepared by a properly experienced & competent decision –maker. Far too many appeals are based upon sparsely worded submissions with tick box decisions fattened up with evidence to make it look as those they’ve made an effort to get it right What we shouldn't forget is how the State is all too often getting it wrong as shown by high numbers of successful outcomes in appeals. With proper help we would see successful outcomes increase even further.


Alien advisers...







Just another frustrating telephone call?


As if a claimant hasn't enough to contend with in fighting an increasingly alienated society, their frustration reaches boiling point when they can no longer access help from hard pressed advice agencies who have been forced to streamline their services by offering limited support over the telephone. The problem is that advice agencies are buckling under the strain. It is sheer madness to pretend that inexperienced advisers can understand the complex range of mentally related limitations experienced by people like Tom. We must not assume that those with complex mental health problems are in touch with under resourced community mental health teams and all happily taking prescribed ant—depressants which are successfully combating their problems. There are thousands of unidentified victims to be found within the welfare wilderness; it is how we treat them which will determine whether or not they end up being driven to the edge in a society which increasingly alienates itself from those most in need.


Tomorrow and over the weekend we will be looking at how all of this pans out when Tom battles his case out before a Tribunal. We will look at the insane legal system by which we determine whether Tom has a mental health problem which is sufficiently serious to justify his case for support from the state.


See you in Court!....[/b][/color][/i][/size]

[nickd]

Judgment day looms...







Tom's case will be heard tomorrow


Before you can go to court you need to get there. In Tom's case it has been a long and torturous journey, around 6 months have elapsed since Tom found himself on that perilous & windy cliff top. In this article we've taken a good hard look at many different factors which can be related to what people have to contend with in their Employment & Support Allowance appeals. My clients see their appeals as a tremendous ordeal, as I carefully forewarn them that they will need to go court in order to state their case, they literally freeze with fear. The Court shown above is the County Court at Torquay. Initially its primary jurisdiction was as a County Court, but since the merger of HM Courts & HM Tribunals Service it now hears cases as a multi - function centre combining cases in the Magistrates' Court (a criminal court) as well as continuing in its predominately 'civil' function as it hears cases in the 'small claims track', it also has the jurisdiction to try cases in the High Court in its main Courtroom. The main courtroom is where Tom will have his Employment & Support Allowance appeal heard tomorrow. It's not a venue which is as 'user - friendly' as the Ministry of Justice portrays in their 'self - help' video aimed at encouraging people like Tom to prepare their own Employment & Support Allowance appeals. Please click on the link and view some BBC television footage which we managed to get earlier on in the year when drawing attention to what I called the 'explosion of appeals' which we are seeing as more and more people end up having to appeal to get their benefits sorted out. We highlighted the battle of one of our younger clients in getting some support - its what Employment & Support Allowance is intended to provide.


Put yourself in Tom's shoes


I strongly discourage anyone, particularly anyone with a mental health problem to try and 'go it alone' with an Employment & Support Allowance appeal, it can be like walking in to a 'lion's den' if you are unprepared. Remember how this article started? It highlighted the intense isolation of an individual who was perched on a cliff top contemplating their fate. We've taken a look at how our individual may have felt, we looked at how others may have felt when faced with the sight of someone in a state of desperation, we looked at the 'aliens' who stand in judgement and now we move towards the legal process by which we determine whether Tom gets his Employment & Support Allowance. Thankfully we've seen some people express some compassion over Tom's plight and for the purpose of this article I'm going to ask you to imagine it was the intervention of one of the four people who've posted on here who talked to Tom and managed to persuade him against taking the most drastic step you could ever imagine. Government says these cases aren't 'sufficiently serious' to justify legal aid, try telling that to someone in Tom's shoes - go on - put yourself in Tom's shoes?.

As you contemplate, I'll be back later to tell you what's been involved in the preparation of Tom's case. Government doesn't get how much we have to do, they just think Tom needs a bit of 'generalist' advice. the reality is it is a highly specialist area of work especially in cases where people are affected by a mental health condition. Whether or not Tom gets support - I would say life saving support - is something which Government says can be provided by speaking to him on the phone with a bit of 'generalist' advice, handing him a leaflet or running him through their misguided video. Try telling that to Tom.

Right see you back here later on.



If you are affected by what you read here there is a link to the Samaritans here. You can call them on 08457 90 90 90 if you feel you would like to talk to someone.

[nickd]

The preparation of Tom's case...


Here we take a look at how Tom's case was prepared before he goes to his Tribunal on the 22nd July 2012. This is a run down on how a legally aid welfare benefit specialist may have worked on the case in the run up to the appeal. The times which are said to be 'claimable' are what the Legal Services Commission may consider paying for according to very strict contracting arrangements between the organisation who the benefit specialist works for and the commission. However much is claimed by the organisation the maximum amount is capped at a 'fixed - fee' of just £150 (there are exceptions in very long cases). This is worked out on an average of £50 per hour (3 hours per case). Some cases do not take as long, but you can see how some - like Tom's may take well in excess of the average of 3 hours. Here's how Tom's case progressed (the details are fictional but based on typical client cases) from when he was first seen in January of this year...



The 'first meeting' with Tom







That all important creation of trust



I always make a point of starting an interview with a shake of the hand. Not in some corny corporate kind of way but in a genuine attempt to build a bond of trust. You can tell a lot from a client by the way they respond, a feint grasp may point to a broken spirit or it could just mean you have a long way to go before they put their faith in you. Tom's feint grasp tells me it's a bit of both.


My first encounter with Tom is in January of this year. It follows the short period which he had spent in hospital after being admitted back in December. It was just after Christmas when it all got too much for Tom and he decided things had just just got too much, that's what it was which took Tom to the edge. It was a compassionate soul who had talked to Tom for a while after summonsing the Police, they arrived and after spending some time carefully chatting to him, he agreed to go with them. Tom's still in contact with the Community Mental Heath Team and it was they who suggested he came to us to 'sort out his benefits'. In reality as pointed out by someone closely following this story (it's surprising how much of a dialogue goes on behind the scenes) it's unlikely that Tom would have taken himself to the cliff in broad daylight; it would much more likely have been in the dark of night. What we now need to establish is not only what's happened in Tom's life but also what needs to be done to help get things back on track. We work out that Tom's benefits stopped just before Christmas. Tom had been on Jobseeker's Allowance for three years but hadn't been able to find a job. Last October the Jobcentre had suggested he claimed Employment & Support Allowance. His doctor agreed to sign him off with depression and put him on a course of anti-depressants. Tom tells me he doesn't like taking them.


Tom went for an examination with ATOS at their medical centre in Exeter, unsurprisingly he didn't score any points. Two weeks prior to Christmas he realised that no money had been paid into his account. Tom had hoped to visit his older children up country but couldn't afford the journey. I ask him if he has any closer family, he tells me his both parents are dead and his eldest son lives nearby but they don't communicate. Tom tells me how he used some of the rent money to buy his kids presents. He managed to send them off never heard back from them and therefore wasn't sure if they were ever received. Tom's clutching a tatty Tesco bag full of papers, amongst them I can see that all too familiar manilla envelope; the one which tells Tom how sorry the Jobcentre is that they can't pay him Employment & Support Allowance. You recognise the signs, the manilla envelope sports the coffee cup stains which tells you it's been around without getting the attention it needs. I pull it out of the envelope and tell Tom how we'll ask for a late appeal to be admitted under the 'rules of natural justice'. I am confident it will be admitted given Tom's recent spell in hospital as well as contact with the community mental health services. In our first meeting I draft the all important GL 24 appeal form and tell Tom we'll arrange a further appointment once the appeal papers arrive. A full case history is taken.

Time spent (claimable)

Interview - 60 minutes (taking case history / explaining procedure GL 24 appeal form - 18 minutes Engagement letter - 6 minutes Confirmation of advice/instruction - 12 minutes

Considering the evidence







A further meeting is called



Once the appeal papers have been received consideration needs to be given to their contents. We need to make sure the quoted legislation is correct, whether the stated facts are correct and raise any issues. This may mean making an application for 'interlocutory directions' or we may just choose to raise them when we prepare our response. Typical issues arise out of whether the decision under appeal has been correctly stated and revised or superseded under social security law. We may take issue with the medical evidence and the way the decision - maker has cited grounds for disallowing Employment & Support Allowance. We will carefully look at around 66 pages in the Secretary of State's submission to see if the contents of the ATOS examination recorded in the ESA85 medical report are consistent with the decision reached. It will also be necessary to look at the answers Tom provided in the completion of his ESA50 'self assessment' questionnaire as well as work out whether any 'exceptional circumstances' apply. We consider the evidence and discuss them with Tom in a further interview, we also give consideration to obtaining further medical evidence from Tom's doctor and the Community Mental Health Team. We need to relate the evidence to when the Jobcentre Plus made their decision back last year; his suicide attempt cannot necessarily be taken into account because it post dates the 'decision under consideration' - we will however contend it has a relevance. Upon discussion there is definite merit in Tom's appeal.


Time spent (claimable)

Interview - 45 - 60 minutes (preparing case /agreeing grounds) Reading 66 page submission - at least 30 minutes

Preparing the 'appellant's submission'







Putting the case



This is where in my view a welfare benefit specialist really has to use all their specialist skills based upon a thorough working knowledge of the Tribunal procedural rules, social security law, advocacy in terms of written and verbal arguments and all the skills you acquire in interviewing people; I can think of no better example where all of these skills have to be utilised to the full when helping people like Tom. We have to look at the reality, establish the facts and apply the often illogical answers we get to an interpretation of how they may apply. Take all we have looked at in this long article and imagine how you are going to persuade a Tribunal that Tom is eligible for his Employment & Support Allowance. Our Ministry of Justice tells us that benefit appeals are just about facts and all they need is a bit of generalist advice. To quote the Right Honourable Kenneth Clarke QC:


"What people require in these difficult times is general advice on a general combination of problems from which they suffer."


He couldn't have got this more wrong. It was in a debate over legal aid that Clarke showed up his total lack of comprehension over how questions of fact are intrinsically linked to rather than remote from Social Security law. It was my own MP who challenged Clarke in what I think was an excellent statement:


"The Secretary of State says that because welfare appeals often involve arguments about points of fact rather than points of law, welfare appellants should not qualify for legal aid. However, justice is about facts."


Dr Sarah Wollaston MP couldn't be more correct. What we have in Tom's case is someone well and truly on the edge; quite literally - and dangerously so if want a reminder as to how dangerously, just click on here for a stark reminder. It is on just 7 of the most absurd & most basic of questions of 'fact' that Tom is asked to indicate whether he has a mental health problem in his Employment & Support Allowance (ESA 50} 'self - assessment' questionnaire. We need to establish how Tom felt when he was in the most desperate of situations; we need to go back to how this all started. Earlier in this article I have constantly asked you to use your imagination. I am now going to go a step further and ask you to imagine you were on the cliff top with Tom back in January of this year. At the cliff top I want you to ask Tom the same questions which he was asked in his questionnaire for Employment & Support Allowance. Befoe you ask the questions Tom tells you what it is that brings him to where he is:


"I feel useless, the wife's left, my kids don't want to know me, I can't do this any more, no work, no money, no future, I've let my boy down, he doesn't want to know, can't blame him, there's nothing, just nothing, nothing...."


You do what everyone trying to help would do, you offer reassurance and say " No mate, I know it looks bad, I get what you're saying, now come on mate, come on, there is help out there, really there is, it always looks worse than it really is..."


Now lets just hold things right where they are and apply your re-assurance to reality. Lets just look at those 7 questions and imagine you asking them at the cliff top, imagine applying them to the situation before you and ask yourself how your crazy conversation would go. I reckon it would be something like this. We'll use some 'real life' language to bring a bit of reality to what we're applying this to, but it's okay because auto moderation will take out the swear words so just use your imagination and you'll get my drift:


Q1. Learning tasks. Tom, can you learn to do everyday tasks without difficulty?


"Course I [auto mod] can, I'm not [auto mod] stupid."


Q2. Awareness of hazards. Tom, can you keep yourself safe when doing everyday tasks such as cooking?


"Oh for [auto mod] sake, you saying I can't open a tin of [auto mod] beans and cook em?"


Q3. Initiating and completing personal action. Tom, can you manage to do daily tasks without difficulty?


"I have to manage, got difficulty, who hasn't, everyone making out I can't manage, [auto mod] stupid questions, just need money so I can manage"


Q4. Coping with change. Tom, can you cope with change to your daily routine?


"[auto mod] have to, don't we all?"


Q5. Getting about. Tom, can go out on your own?


"I bloody well got here didn't I, any more stupid [auto mod] questions?"


Q6. Coping with social engagement. Tom, can you cope with social situations?


"Yeh, yeh, I know what you're getting at, me other half used to say I'm never out the [auto mod] pub"


Q7. Appropriateness of behaviour with other people. Tom, does your behaviour upset other people?


"[auto mod] told yah, no one wants to know me, they ain't gonna be upset are they, for [auto mod] sake."[/b]


It sounds a fit far fetched you may think? But these are exactly how the questions are asked in the form which Tom would have been asked to complete. He would even in his most desperate moment indicate none of them apply to him, how absurd is that? Someone on the brink of suicide and they fail the DWP's test for determining whether someone has a mental health problem! Go and check out an ESA 50 form if you want to see for yourself. If you answer positively to any of the above questions the form clearly instructs the claimant to move on to the next question. I would therefore not be in the least surprised if in the course of preparing Tom's appeal he had indicated that not one single mental health descriptor applied to him; this is the absurdity of Professor Harrington's (the 'architect' of the assessment) revised assessment. It is mad isn't it?

This is one of the biggest problems which claimants are coming up when faced with the Employment & Support Allowance questionnaire. They are mainly 'factual' questions but the answers will determine a number of things:

Whether a claimant will proceed with their claim Whether a decision - maker or advisor interprets the answers as they appear Whether a claimant with mental health problems starts to think they have no problem.

As a welfare benefit specialist we appreciate the complexity of mental health issues and also know that the questions on the form are a greatly simplified version of the statutory test enshrined in the Employment & Support Allowance regulations. Harrington and his working committee have no doubt put a lot of work in to devising the test but the form is then simplified to make it 'user friendly' for the claimant. The problem is that the claimant (as illustrated in the 'real life' example I have used above) may fail to realise what each question is seeking to establish.

It's not just a failure on the part of the claimant, it is also one which I see duplicated in Tribunals who ask questions of the appellant before them from the form as they go through the evidence. Similarly the Atos healthcare professional is unlikely to appreciate how the regulatory questions differ from the ones flagged up by the Lima Logic software system used by Atos. An Upper Tribunal judgement by Judge Williams picked up on this failure in the case of CE/2373/2009 a case to which I often refer in the First Tier Tribunal. There are many instances where it may be necessary to refer to Upper Tribunals as precedent but legal argument cannot merely be related to cases of binding judgement. Issues will arise over whether for instance the lack of a diagnosis may disqualify a claimant from entitlement, I would argue that in Employment & Support Allowance it is the existence of a condition rather than diagnosis which counts. You can check on all of the relevant Employment & Support Allowance descriptors using the link here.

However, much as though Ken Clarke may like to see us thrashing out eloquent 'points of law' debates as our Tom teeters on the cliff edge, I think we should be better focussed on reality. It is here that we need to remember what we are dealing with. It's beyond me how anyone can think Atos has managed to come up with a computer software system which can outwit the human mind; they last tried it as far as I recall in a sci- fi film called 'Space Odyssey 2001' using a highly intelligent system called H.A.L. 9000 - I don't think it went much further than the cinema screens. What we should not forget is how we are dealing with problems of the human mind. If it takes a professor to devise a mode of assessment it stands to reason you are going to have problems in interpreting how it works. There are some good reads which illustrates what an in depth subject mental health is on the internet. I can recommend this NAWRA Thesis on mental health & social security benefits or this link to some excellent articles by 'The Care Guy' with reference to an article on the meaning of psychiatric diagnosis. You cannot hope to present an appeal on mental health grounds without some degree of subject based knowledge in to what your are dealing with. It's something which develops as you gain experience in interacting with so many different people - it's not something you pick up easily on a two or three day training course.

What preparing these Employment & Support Allowance appeals is all about is trying to fit square pegs in to round holes. What I pay the least attention to when considering the evidence are the answers provided by the claimant in their questionnaires, all too often they've nearly all made the classic mistake of trying in vain to get their conditions to fit the rather hopeless questions in the form. You have to consider the regulations very carefully to see where the client fits in to them, it's definitely specialist work.

So with Tom's tribunal looming upon us, I ask him in again and firm up the argument I will be advancing in our written submission. It's important to pitch the case in the right way, it will involve you in trying to get the Tribunal to see your client as a person who has a limitation. In Tom's case I go through it all with him at a 'pre-hearing' interview. I agree upon tactics, tell him what to expect and make sure everything is covered. It's important in setting out your argument as a professional representative to make sure issues are raised for the Tribunal to consider. If the Tribunal overlooks to deal with them you can cite grounds to appeal an adverse decision to a higher Tribunal. If you neglect to deal with them or omit to mention them you could have an angry client on your side when it goes pear - shaped. At last Tom's case is all ready and everything is dispatched in time for the hearing. Usually it all goes according to plan but it means working to tight deadlines and on occasions it is not always possible to have everything ready in time for the hearing. Sometimes the case comes up more quickly than expected and on other cases it is adjourned or postponed at the last minute. Under the legal aid scheme we are not paid to represent at the hearing so on occasions we have to do it 'pro-bono' (professionals working free of charge) if we consider it's really necessary. In a case like Tom's I would be reasonably confident that I could prepare him sufficiently well to give him the confidence to attend. It quite often entails a few last minute telephone calls with the client to calm their fears.

Time Spent (claimable)

Interview - 60 minutes - Pre - hearing Appellant's submission for ESA case - between 150 and 180 minutes Dealing with obtaining & compiling medical evidence - 30 minutes Telephone calls - 18 minutes Letters to client & Tribunal - 12 minutes

[/size]

[nickd]

Can you fit square pegs into round holes?









Why not take the ESA mental health test and see how you get on?



Just take a look at the following 7 questions taken from the 'ESA 50' 'self - assessment' questionnaire. Consider whether you would if filling in filling in the DWP's official form need to click on any of the words in blue. Remember you should only click on any of the 7 potential answers if you are really sure it can be applied to you. If you do find yourself clicking on any of them don't worry about where it takes you, we will be looking at all of that after Tom's tribunal has taken place. All you need to consider is how good or bad the test is for working out whether a benefit claimant has a mental health limitation which qualifies them for Employment & Support Allowance. See how you get on..



The seven questions asked by the DWP in the ESA 50 questionnaire:



(1) 11.Learning tasks Please do not click here if you can learn to do everyday tasks without difficulty.



(2) 12. Awareness of everyday hazards (such as boiling water or sharp objects) Please do not click here if you can keep yourself safe when doing everyday tasks such as cooking.



(3) 13. Initiating and completing personal action (which means planning, organisation, problem solving, prioritising or switching tasks). Please do not click here if you can manage to do daily tasks without difficulty.



(4) 14. Coping with change Please do not click here if you can cope with change to your daily routine.



(5) 15. Getting about Please do not click here if you can go out on your own.



(6) 16. Coping with social engagement due to cognitive impairment or mental disorder. Please do not click here if you can cope with social situations.



(7) 17. Appropriateness of behaviour with other people, due to cognitive impairment or mental disorder. Please do not click here if your behaviour does not upset other people.



If you did not click on any of the questions you have indicated that you do not have a mental health problem according to the questions in the Employment & Support Allowance self assessment questionnaire.


You can go back and repeat the test if you like by clicking on the questions which you think are most likely to apply to you; then look at the set of questions where the link takes you to and ask yourself how you would find yourself answering them.


Please feel free to comment on how good or bad you think the questions are. What do you think of them? Do let us know what you think about how the DWP ask benefit claimants about their mental health problems. Remember, it's Tom's turn tomorrow...

[nickd]

Tom's Tribunal will take place here...




Please note: This is not the main Courtroom at Torquay as an image is unavailable. However, the Courtroom at Torquay
is still a formal one.


At 3.00 this afternoon.

Respondent: The Secretary of State

V

Appellant: Tom 'Good - Bloke'

At 4.00 this afternoon.

Respondent: The Secretary of State

V

Appellant: Tom 'Scum'

In deciding either of the above appellant's entitlement to Employment & Support Allowance with effect from December 2011, it is open to the Tribunal to arrive at any of the following determinations:

That the proceedings be adjourned That the appellant is not entitled to Employment & Support Allowance That the appellant is entitled to Employment & Support Allowance at the 'Work Related Activity group' component That the appellant is entitled to Employment & Support Allowance in the 'Support Group'

As you wait why not read some of the information we have taken a look at over the last seven days? It's been a long week and I'll be back later on to let you know how Tom (the 'good' and the 'bad') gets on.....





(1) Preparing Tom's case from January to today.


(2) Why not take the ESA Mental Health test and see how you get on?


(3) Tom's story - 'from the cliff edge'


(4) Put yourself in Tom's shoes as he awaits 'judgement day'.



The decisions reached by the Tribunal will be issued on here later today between 8.00 and 9.00 pm. See you later...

[nickd]

The decisions have been made


These are the panel members who decided the case of Mr. Tom 'Good Bloke'...



The Judge





The Doctor






These are the panel members who decided the case of Mr. Tom 'Scum'...



The Judge





The Doctor






What do you think they decided?


Learn of their 'verdicts' between 8 and 9 this evening....

[nickd]

Note:

[nickd]

The decisions reached by the Tribunals...


In Mr. Tom Good Bloke's case...







The Tribunal allowed the Appeal


The Secretary of State's decision of the 18th December is revised/superseded. Mr. Tom Good Bloke is entitled to Employment & Support Allowance from the 18th December 2011.

The Tribunal is satisfied that the appellant should be awarded the following descriptor(s) from the The Employment and Support Allowance (Limited Capability for Work and Limited Capability for Work-Related Activity) (Amendment) Regulations 2011:

16. Coping with social engagement due to cognitive impairment or mental disorder.

(c) Engagement in social contact with someone unfamiliar to the claimant is not possible for the majority of the time due to difficulty relating to others or significant distress experienced by the individual. = 6 Points


However the Tribunal could not agree that the appellant should be awarded the following appealed for descriptor:


17. Appropriateness of behaviour with other people, due to cognitive impairment or mental disorder.

(c) Occasionally has uncontrollable episodes of aggressive or disinhibited behaviour that would be unreasonable in any workplace. = 9 Points -

Because he had not worked for three years prior and therefore could not satisfy the Tribunal that he experienced unreasonable behavioural problems in the workplace.


However, it was decided that the appellant satisfies the conditions of regulation 29 (2)(b)


Exceptional circumstances

29.—(1) A claimant who does not have limited capability for work as determined in accordance with the limited capability for work assessment is to be treated as having limited capability for work if paragraph (2) applies to the claimant.


(2) This paragraph applies if—


(a)the claimant is suffering from a life threatening disease in relation to which—
(i)there is medical evidence that the disease is uncontrollable, or uncontrolled, by a recognised therapeutic procedure; and
(ii)in the case of a disease that is uncontrolled, there is a reasonable cause for it not to be controlled by a recognised therapeutic procedure; or
(b)the claimant suffers from some specific disease or bodily or mental disablement and, 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.




In Mr. Tom Scum's case...



Tom the drug dealer



The Tribunal disallowed the Appeal


The Secretary of State's decision of the 18th December remains unchanged. Mr Tom Scum is not entitled to Employment & Support Allowance from the 18th December 2011.


The appellant having requested an oral hearing failed to attend his hearing. It was therefore decided in his absence that he did not meet any of the conditions. The Tribunal did not accept that the appeal should be adjourned because he had to attend a hearing at the Magistrates' Court as he would have known about this for some time beforehand and failed to request a postponement when he had ample opportunity to do so.




Please feel free to comment on whether you agree with the decisions made by the Tribunals.

Do you think they were fair? Would you understand the legal issues involved & could you identify any ground to appeal in either case?

Would Tom Scum have benefited from specialist help?




Please Note: The decisions are not set out as they would normally appear on a Tribunal decision notice, they are shown as they are to illustrate some of the points which arise out of this article.

[edyourself]

Bad Tom's appeal was automatically rejected because he didn't turn up to the tribunal and he didn't turn up because he had to be at the Magistrates Court at the same time?

Did Bad Tom speak to a legal bod about not going to the tribunal and was a legal bod representing him at the appeal tribunal?

How do people who are appealing find out about postponing?

Fiona

[angelusmalus]

I know these are fictional examples, but it would be totally bizarre for a tribunal not to recognise that behavioural problems would be an issue in the workplace purely because the claimant hasn't been in a workplace environment for some time. If they use that logic, only people who've worked and experienced issues (and can prove it too, I guess) would gain any points.

[nickd]

Fiona: The issue over the adjournment would be one where I would definitely look to appealing to the Upper Tribunal. He had after all requested an oral hearing and it would be in the interests of justice to admit his appeal. It could be possible to argue that given the merger between HM Courts & HM Tribunals it was partly their error in the simultaneous listing of two different cases especially as the Court deals with the administration of both. There is case law on the issue of adjournments (CDLA/2156/2010) a case I know only too well (see next post for link). I would say the Tribunal was in breach of procedural rule 31(b) as it was not in the interests of natural justice to proceed. For the purpose of this article the 'bad' Tom was unrepresented, we could not assist him because there was a 'conflict of interest' and he was unable to access help elsewhere. It may be relevant to the argument to say the Tribunal in deciding to refuse an adjournment was prejudiced by their awareness over Tom having to attend a criminal court. Would they have made the same decision if he had been attending a hospital appointment with equal prior notice of when it was to take place?


angelusmalus: I totally agree. The application of descriptor 17 would in my view be one which should have been applied by the Tribunal rather than dismissed for the reason it was. The 'good' Tom had in the history clearly demonstrated problems in the workplace a number of years beforehand, indeed it was to a large extent contributory to his dismissal. The fact that he is not working is irrelevant to the argument. The issue is what would happen if he was working. His absence from the workplace may help in an argument that he exhibits behavioural traits which be problematic within the workplace if he were so placed.

Thank you both for your good points, any more? Anyone?

[nickd]

See attached decision on adjournments

Attachments:

[ian]

I agree with both points raised by other posters, and I'd be interested to know why two claimants with identical mental health issues are treated so differently particularly upon appeal, is this a case of the tribunal's prejudice against Tom Scum.

The problems all seem to stem from the poorly worded ESA50 initially.

Very interesting thread. BTW where does one find the attached decision on adjournments referred to in your previous number 20 post?.
(Edit) its now appeared.
Ian

[nickd]

Ian : Thanks for joining and glad you've found it interesting. You have to register & login to be able to download any attachments; glad you found it.

I'm glad you picked up on Tribunal prejudice, it's why I've left post 15 blank as I intend to come back to this, it would be good to hear if any of you out there have encountered any prejudice at any of the Tribunals you may have attended?

Are Tribunals always fair?

Never fair?

Does it vary according to the claimant as perhaps it did in the case of the two different Toms? By the way, there's more to come on this when Tom Scum takes his case to an upper Tribunal. That will be a new thread I think, need to catch up on other things before I can come back to it, but it's been excellent to see this gain such a lot of interest & a few new members too - thanks to all those who have joined

[ian]

Quote:
The problem is that the claimant (as illustrated in the 'real life' example I have used above) may fail to realise what each question is seeking to establish.

Quote:
Similarly the Atos healthcare professional is unlikely to appreciate how the regulatory questions differ from the ones flagged up by the Lima Logic software system used by Atos.

Quote
It's not just a failure on the part of the claimant, it is also one which I see duplicated in Tribunals who ask questions of the appellant before them from the form as they go through the evidence.


IMHO this is where the problems start for a claimant. The ESA50

The claimant has to understand and establish/interpret the meaning of each question either on the ESA50 no matter the state of mind or the illness.

Then again in front of the HCP using LIMA software which brings the HCP into the mix. HCP employed by a multi million pound contractor, and trained on the software and little else.

Then the DWP DM has to, with the aid of using DMG (does this correspond with the LIMA software or the ESA50? ) make that all important decision which can lead claimants to pass or fail, leading to appeal for a majority.

Which brings some but not all claimants to welfare rights. Who then have to look for points of law and pull together a case together to be bought before the tribunals who are working with in the same flawed questions and mis-matched regulations in essence.

Just how many people can be wrong during a process, its so obviously the process which is flawed. It seems to me, that the Government have added a lot of hoops that just don't need to be there.

Firstly a claimants GP/specialist/care team should be the first point of call for all claims.

One simple form that a claimant would take or send to their GP/specialist/care team

The shambolic system above is designed because they don't/won't believe the claimants own medical team? It must be easier & cheaper for the government to police the professionals such as GP's rather than award various contracts to companies who's best interests are not the UK government nor the claimants they process, but themselves.

This whole process must be a breach of a disabled persons human rights to be repeatedly put through a system so flawed?

[nickd]

Ian: Thanks for joining and raising some very valid points.

The ESA assessment is potentially discriminatory and we currently await the outcome of a judicial review on how it may unfairly impact upon claimants with a mental health problem. Yes the ESA 50 is in many respects the route of the problem as far as the claimant is concerned. It's very misleading because the way in which the questions are set out could easily dissuade a claimant from furthering their claim. The form bears no proper resemblance to the regulations which although far from perfect can at least be argued in terms of their applications. We will be taking a look at the regulatory side of this as a follow on to this article and I shall soon be starting a new thread on this.

With such an absurd mode of assessment there is a need for legal advice in all cases involving mental health applications purely because the interpretation is so vague and hard to apply to those who have a significant problem. In my view more people should be arguing their applications on exceptional circumstance grounds, conveniently the form doesn't provide a link to this ground of application. It will be interesting to see how the judicial review turns out because what is all too clear is how much the assessment has to be changed to give claimants a chance to receive some much needed support (where they fall into the WRAG group).

[nickd]

www.independent.co.uk/news/uk/politics/fear-of-fitness-to-work-tests-driving-disabled-patients-to-suicide-say-6-of-gps-8197432.html

[louloucherry]

Hi, Just signed up after finding this forum while looking at claiming ESA on grounds of mental health for myself & it has scared me even more. I am terrified of being judged as i have worked full time before my depression, which is a symptom of what i think may be underlying Borderline Personality Disorder. I am awaiting diagnoses from a psychiatrist on 5th Feb this year. I have never ever claimed ESA before but my circs have changed considerably and it has affected my health, I have attempted suicide and i self harm. I used to work for the DWP processing claims for JSA in my previous job so i know a bit about how the system works and it is terribly unfair for people suffering with mental health. The had employers such as myself and colleagues (no longer working for them) who were also judged on their mental health. we are at the mercy of ATOS. As employees, we had to face sickness management n it was awful. I would want to help Tom if i saw him in the cliff top, tho in my current state, i would join him. he questions asked make u really doubt yourself and would make me want to die coz it feels as if my illness is made up. People judge alcoholics and drug addicts without knowing how they got there in the first place. It really is unfair!

[louloucherry]

I scored 60 on the mental health questions, what does that mean?

[nickd]

Sorry Louloucherry,

I meant to answer you question the other day. At 60 points you should qualify for ESA and most probably in the support group as they must have been scored on some of the higher end descriptors which equate to a support group award.

Regards

Nick