A tale of two tribunal decisions

neither the DWP nor the assessment provider are never held to account for allowing such terrible decisions to be made

.....So it is a low stake strategy. DWP/maxmoose have nothing to lose - they just lose face. There is also much to gain (browny points) because DWP workers gamble that the claimant will be insufficiently informed of his/her rights and will not realise they can go to a court.

A system of fines would certainly help to make sure the assessors/DMs have an interest in getting things right.

https://data.gov.uk/data/contracts-finder-archive/contract/1644334/

Reading through the contract for the WCA the following points may be of use to people who have been dealt with by Maximus:

The Supplier will ensure that Claimants who arrive on time for their consultation are seen within 30 minutes of the scheduled appointment time. Refer to Service Level SC12.

10.27. During the Face-to-face consultation, the Supplier will adhere to the standards of conduct required by the Authority which include:

ensuring that the report accurately reflects the Claimants evidence

37.3. The Supplier will ensure that wherever possible all assessment reports and advice:

are evidence based – are medically reasonable and reflect the consensus of medical opinion;

are fully justified, particularly when any advice is at variance with other evidence including the Claimant’s statement or a medical report;

take full account of and record the effects of pain, fatigue and medication on the Claimant’s ability to perform activities;

account for all conditions claimed to be relevant by the Claimant

43.1. The Supplier will have an internal dispute resolution procedure for dealing with complaints from Claimants about the Supplier (and/or any of its Sub-Suppliers).

43.2. If the dispute between the Claimant and the Supplier (and/or the Sub-Supplier) cannot be resolved the dispute shall be referred to the Independent Case Examiner (ICE) (http://www.ind-case-exam.org.uk/) for mediation.

43.6. The Supplier must ensure that its complaints process includes provision for allegations of serious misconduct.
43.7. The main types of serious complaint include, but are not limited to:
assault as a consequence of consultation;
injury as a consequence of consultation;
inappropriate intimate examinations;
racial abuse;
sexual abuse;
serious breach of professional conduct;
theft or fraud;
criminal activities.

Please note that fraud is a criminal offence, so if an HCP has written lies in their report (that can be evidenced) then they have committed a criminal offence. They have also commited a Tort because a false report can be seen to materially disadvantage an ESA/PIP claimant.

43.8. The Supplier must inform the Authority immediately upon receipt of a complaint in this category. The Supplier should also consider suspending the HCP from carrying out assessments until any investigations into the complaint have been completed.

53. EXCLUDED HEALTHCARE PROFESSIONALS
53.1. The Supplier will ensure that the following HCPs are excluded from assessing a Claimant or providing advice:

any HCP previously involved in advising on, or assessing, a claim that has resulted in an appeal, in relation to the Claimant, where identified;

any HCP who the Claimant has made a complaint about

......so if the tribunal does not pursue this then the onus is upon the claimant to then pursue it. The DWP rely on the fact that most people don't know their rights and how to pursue wrongdoing. That is what needs to change.

Yes, that's how it appears to be. They need to raise a complaint against the HCP with Maximus and then raise it with ICE. Doing so may or may not ensure suspension of the HCP, but at the very least a complaint will make sure that the same HCP does not then reassess the claimant following a tribunal ruling in their favour.

In addition to that, I would always raise a fitness to practice complaint with the https://www.nmc.org.uk/ (nurses) or http://hpc-uk.org/ (other healthcare professionals).

It seems to be the nurses and allied hcp who most often write the false reports. I have not read of any cases of doctors doing this (unless anyone knows otherwise).

How DWP deals with breach of contract by a contractor (or subcontractor) depends on
the nature of the goods/services being procured as well as the circumstances of the
breach. You should note that there is no contract between DWP and any subcontractor
the contractor uses. Therefore, no legally binding commercial relationship exists
between DWP and any subcontractor. In a contract, with a supplier to DWP, there will be
clauses that set out how breaches of contract will be dealt with. Where DWP becomes
aware that there has been a breach of contract it will assess the nature of the breach
before deciding how to respond to the breach. The most serious response would be to
terminate the contract and to sue the contractor. DWP would only be likely to sue for
blatant and persistent breaches of legislation where compliance with that legislation for
example, the Equality Act, is made a term of the contract.
https://www.whatdotheyknow.com/request/163940/response/402006/attach/3/2611%20reply%20240613.pdf

The claimant can sue for a contractor's breach of the contract.

Bryan posted the details on UM. I am not sure if this was saved by Gadily.

That's right, there is no contract but they are still a third party provider of services albeit under the auspices of the DWP and in that way they are subject to sort of actions that can be taken against any third party.

WP providers once said to me that they were the DWP, until I put them right on that score

The most serious response would be to terminate the contract and to sue the contractor. DWP would only be likely to sue for blatant and persistent breaches of legislation where compliance with that legislation for example, the Equality Act, is made a term of the contract.

It could be argued that Maximus are finding people who need surgery as fit for work in WCAs in error of the spirit of the law contained in the ESA Act clause 93(b) and that ESA claimants are being punished at the assessment phase because there are long NHS waiting times.

Absolut wrote:

The most serious response would be to terminate the contract and to sue the contractor. DWP would only be likely to sue for blatant and persistent breaches of legislation where compliance with that legislation for example, the Equality Act, is made a term of the contract.

It could be argued that Maximus are finding people who need surgery as fit for work in WCAs in error of the spirit of the law contained in the ESA Act clause 93(b) and that ESA claimants are being punished at the assessment phase because there are long NHS waiting times.

Do you mean that Maximus are finding people, awaiting surgery, as fit for work based on the predicted outcome of surgery they have not yet undergone, merely because the waiting time for the op' far exceeds the assessment phase?

Mary_FV wrote:How DWP deals with breach of contract by a contractor (or subcontractor) depends on
the nature of the goods/services being procured as well as the circumstances of the
breach. You should note that there is no contract between DWP and any subcontractor
the contractor uses. Therefore, no legally binding commercial relationship exists
between DWP and any subcontractor. In a contract, with a supplier to DWP, there will be
clauses that set out how breaches of contract will be dealt with. Where DWP becomes
aware that there has been a breach of contract it will assess the nature of the breach
before deciding how to respond to the breach. The most serious response would be to
terminate the contract and to sue the contractor. DWP would only be likely to sue for
blatant and persistent breaches of legislation where compliance with that legislation for
example, the Equality Act, is made a term of the contract.
https://www.whatdotheyknow.com/request/163940/response/402006/attach/3/2611%20reply%20240613.pdf

The claimant can sue for a contractor's breach of the contract.

Bryan posted the details on UM.  I am not sure if this was saved by Gadily.

you mean this post of bryans i think

https://respectfulbenefits.forumotion.com/t50-atos-were-in-breach-of-their-contract-held-with-the-dwp-contracts-rights-of-third-parties-act-1999

That's the post!

Thanks g.

Caker wrote:Do you mean that Maximus are finding people, awaiting surgery, as fit for work based on the predicted outcome of surgery they have not yet undergone, merely because the waiting time for the op' far exceeds the assessment phase?

Sorry, I didn't make myself clear. The DWP bangs on about getting people "back to work" yet they actively prevent claimants from doing so or they try to offload sickness/disablity costs onto employers, while at the same time having a rule within ESA that if the claimant fails to undertake to remove their LCW when they are on ESA then they will get a 6 week sanction.

When a claimant is in the assessment phase their LCW status is accepted until the WCA is undertaken. For instance, a claimant goes to their doctor about their hip arthritis. They are signed off as not fit for work by their GP and a referral is made to a surgeon who places that person on their waiting list for a hip replacement. That same claimant then attends a Maximus WCA before their name has gone to the top of the waiting list. They are then stripped of their LCW status in the WCA.

Here's an example straight from the DWP's own documents:

Miranda has significantly reduced mobility due to arthritis of the right hip and is on the waiting list for a hip replacement. She uses a walking stick to help with balance, but this does not enable her to walk any further than 200 metres before she experiences pain. She has not been advised to use a wheelchair. The HCP advises that she has no other health problems, and in their opinion based on clinical experience, would be provided with a manual wheelchair if she asked her consultant about this. If she had a wheelchair, she would be able to mobilise over longer distances. The DM decides that it would be reasonable, having considered all relevant factors, for Miranda to use a manual wheelchair, and that none of the Activity 1 descriptors apply.

If Miranda was on a waiting list for surgery then the WCA must have taken place long after the 18 week NHS waiting time:

In cases where hospital admission is pending, HCPs can recommend ‘Treat as LCW’ if there is evidence that the claimant is due to have a major procedure within the next 21 days. HCPs should state the nature of the anticipated procedure and be sure that it is consistent with the claimant’s medical condition.

If you add the 13 week assessment phase to the 21 days quoted above then that is 16 weeks, which is 2 weeks short of the standard 18 week NHS waiting list times so yes, waiting time for an op' could possibly exceed the assessment phase.

The question I ask is "within 21 days of what?". Clearly, the WCA face to face interview.

I don't see where they get the 21 days from. There is no provision anywhere in the ESA 2013 Act regarding 21 days. In other words, it's a made up number that doesn't appear in ESA primary legislation (as far as I am aware).

It's also worth noting that any surgery that isn't an overnight stay isn't classed as a "major procedure". Day surgery cases are also not classed as a "major procedure". Recovery times are also ignored if recovery isn't undertaken while in hospital.

Removing LCW from "Miranda" pre-surgery and designating her fit for work if she gets there by wheelchair is clearly designed to either keep that claimant on some sort of benefit (as long as it's not ESA) or in order to offload the costs of Miranda's surgery onto the employer via SSP. The claimant clearly needs an operation to remove their LCW which the DWP accepted right up until the WCA but she can't remove her disability under ESA because the WCA designates her as "fit for work". She then either has to

a) wait 6 months and claim ESA again in the hope that her hip has deteriorated enough to get ESA again
b) go on JSA and try to get the op done under the 13 week extended sick scheme or
c) find an employer who will hire her with an op waiting in the background

Chances of an employer hiring Miranda with an op waiting in the background? Zero.

ESA legislation:

93.—(1) Subject to paragraph (3), paragraph (2) applies where a claimant—
(b) fails without good cause to attend for or submit to medical or other treatment (excluding vaccination, inoculation or surgery which the Secretary of State considers is major) recommended by a doctor with whom, or a hospital or similar institution with which, the claimant is undergoing medical treatment, which would be likely to remove the limitation on the claimant’s capability for work.

So, according to the above, if the claimant fails to remove their LCW when on ESA (and that includes the assessment phase btw as LCW is accepted right up to the WCA) then it's a 6 week sanction. That claimant then being found "fit for work" in a WCA despite needing an operation that will remove their LCW is highly suspect.

Section 93 has no "and" following on from (a). In other words it doesn't say "where a claimant has limited capability for work by reason of the claimant’s own misconduct AND fails without good cause to attend for or submit to medical treatment" etc. It appears that (a), (b), (c) etc stand on their own. The semi-colon between the sections appears to be a stand in for the word "OR".

If rule 93(b) isn't and hasn't been used by any DM since the Act came into force then why is it even in the Act?

Rule 93(b) is there, to my mind, to make sure that if a claimant is on ESA (assessment phase or otherwise) and they are waiting for surgery or treatment and they then refuse that treatment when they are given a date to attend it, then a DM is authorised to enact a 6 week sanction against them for non compliance. Seriously, if that's not what 93(b) means then what does it mean? I would very interested to know what a judge in a tribunal would make of it.  

Logically then, if a claimant in any phase of ESA needs surgery to remove their LCW then removing that LCW status arbitrarily in a WCA is in breach of rule 93b. Rule 93(b) doesn't include major surgery but it most definitely includes other surgery of some type.

“medical treatment” means medical, surgical or rehabilitative treatment (including any course or diet or other regimen), and references to a person receiving or submitting to medical treatment are to be construed accordingly

It could be argued that Maximus and the DWP are finding people who need surgery as fit for work in WCAs in error of the spirit of the law contained in the ESA Act clause 93(b) and that ESA claimants are being punished at the assessment phase because they haven't had their surgery done yet (ie they are at the mercy of NHS waiting times).

In the long term, if the DWP really wishes to get people back to work then anyone on a waiting list for surgery should be found LCW in a WCA regardless of whether or not they can get to a fictional employer's place of work. The claimant will, in the long term, be able to get back to work and, more importantly actually hired, a lot faster than if they are found (erroneously) to be fit for work in a WCA just because they could use a wheelchair.

Example of at least one victim found fit for work despite needing surgery:

Stephen Hill, 53, of Duckmanton, died in December of a heart attack. The dad-of-two had suffered heart problems for around two years and was awaiting major heart surgery but following a ten-minute medical examination on November 17 he was deemed well enough to work.

Extract from an IDS speech..

Reform UK wrote:However, the design of ESA as a short term benefit, where the vast majority of people are helped to return to work, simply hasn’t materialised in reality.
ESA may have been designed with the right intentions, but at its heart lay a fundamental flaw.
It is a system that decides that you are either capable of work or you are not.
Two absolutes equating to one perverse incentive –
a person has to be incapable of all work or available for all work.
Surely, this needs to change.
In the world beyond ESA, things are rarely that simplistic.
Someone may be able to do some work for some hours, days or weeks, but not what they were doing previously.
As ESA becomes part of Universal Credit, the two approaches seem at odds.
We need to look at the system and in particular the assessment we use for ESA.
The more personalised approach under Universal Credit sits alongside a Work Capability Assessment, which sets the wrong incentives.
That’s why I want to look at changing the system so that it comes into line with the positive functioning of Universal Credit.
A system that is better geared towards helping people prepare for work they may be capable of, rather than parking them forever beyond work.
We need a system focussed on what a claimant can do and the support they’ll need – and not just on what they can’t do.
Conclusion
So, whether it’s through Fit for Work, Universal Credit or an improved assessment….
….the more that people feel there’s someone with them, helping them get over the hurdles back to work and to stay in work….
…the more likely their lives will change for the better.
I want to place people at the heart of the system, and make the system work around them, rather than the other way round.
It was this back-to-front approach that we inherited….

http://www.reform.uk/publication/rt-hon-iain-duncan-smith-mp-speech-on-work-health-and-disability/

I am not an expert on ESA and can only comment based on people I have assisted, my observations:

1. The assessment bar has been lifted so high to the point that most people are determined as being capable of some work for a few hours a week.

2. People are assessed on what they can do at home and during the course of their day to day life.  The WCA does not identify work the person is capable of doing, this role is undertaken by the JC official who is not an OHA!

When a family member was medically retired 25+ years ago, they had a thorough Occupational Assessment and was helped to identify jobs they could do, but it was determined that they could not return to any type of work at the time.  If the same assessment took place today, some work would have been within their reach due to technological developments.  

3. I retired several years ago from an 8 hour week job.  I can carry out some of the same functions via my other work related activities, for example  posting here and spending a few hours volunteering in the community etc..  However, I can pick and choose the days/times I work based on how I'm feeling.  I can also lie down or go to bed whenever I need to.  Would an employer employ me?  I doubt it very much!

4. GP letters generally include an assessment of the person's heath conditions, medications, treatment etc. and a comment along the lines.. "I cannot comment on his/her functional ability".  Most GPs are not occupational health assessors and they expect the WC assessor to carry out this function. Ha!

5. The forms are deliberately difficult to understand and complete. A high proportion of people who apply for any type of disability benefit are not successful with their own applications.  The government is aware of this fact and they also know many people will not appeal.  

6. DWP officials and contractors are not provided with the appropriate level of training to make sound as well as accurate decisions.

7. DWP targets influence the decision making process.  Magistrates/other judges/Decision Makers are not required to meet quotas.

You make many excellent points Mary  

3. I retired several years ago from an 8 hour week job.  I can carry out some of the same functions via my other work related activities, for example  posting here and spending a few hours volunteering in the community etc..  However, I can pick and choose the days/times I work based on how I'm feeling.  I can also lie down or go to bed whenever I need to.  Would an employer employ me?  I doubt it very much!

The UC rules regarding taking any work for any hours simply doesn't fit into the real world does it? One of the examples in a DWP document was that a claimant could keep a wheelchair at work despite the fact that in the example the chap couldn't keep a wheelchair at home and couldn't get to the workplace in order to use the wheelchair stored at work It really is breath-takingly insane.  

4. GP letters generally include an assessment of the person's heath conditions, medications, treatment etc. and a comment along the lines.. "I cannot comment on his/her functional ability".  Most GPs are not occupational health assessors and they expect the WC assessor to carry out this function. Ha!

What gets me is how WCA HCPs disingenously ignore consultant letters as well, someone with a higher medical degree than them! HA! indeed

Absolut wrote:What gets me is how WCA HCPs disingenously ignore consultant letters as well, someone with a higher medical degree than them! HA! indeed Sad

From my experience it is the medical evidence that often helps the most at Tribunal.

Interestingly, DWP rarely ever requests it! Most claimants cannot afford the fees charged by the medical professionals for the evidence they need.

Fortunately, the Tribunal does request the information, but it takes weeks to arrive.

Mary_FV wrote:-

GP letters generally include an assessment of the person's heath conditions, medications, treatment etc. and a comment along the lines.. "I cannot comment on his/her functional ability".  Most GPs are not occupational health assessors and they expect the WC assessor to carry out this function. Ha!

I know from experience that occupational health is a specialist activity of the OH consultant (who is medically qualified) or the occupational therapist (who is qualified in practical assessments and recommending equipment adaptations). Neither a physiotherapist or a registered general nurse (as some WCA assessors are) has completed occupational health training (unless they have undertaken this after qualifying). Nurses and physiotherapists without specialist training, are outside their scope of practice in regard to assessing capability for work. 'Work' is obviously a diverse activity and any assessment of a persons capability for work needs to be multi-factorial and not based upon a few basic physical dimensions, as I understand the WCA is.

Caker wrote:Mary_FV wrote:-

GP letters generally include an assessment of the person's heath conditions, medications, treatment etc. and a comment along the lines.. "I cannot comment on his/her functional ability".  Most GPs are not occupational health assessors and they expect the WC assessor to carry out this function. Ha!

I know from experience that occupational health is a specialist activity of the OH consultant (who is medically qualified) or the occupational therapist (who is qualified in practical assessments and recommending equipment adaptations). Neither a physiotherapist or a registered general nurse (as some WCA assessors are) has completed occupational health training (unless they have undertaken this after qualifying). Nurses and physiotherapists without specialist training, are outside their scope of practice in regard to assessing capability for work. 'Work' is obviously a diverse activity and any assessment of a persons capability for work needs to be multi-factorial and not based upon a few basic physical dimensions, as I understand the WCA is.

Thanks for that information C.

It is interesting that people who are employed and have been seriously ill and/or need reasonable adjustments usually have to go through a OHA. I think I had 2 or 3.

The WCA can only be a test of a person's physical and/or mental capacity within the scope of their day to day life, surely a person's GP or medical specialist can do that more competently than a DWP assessor?

I agree that a GP is more qualified to assess physical and mental capacity. Occupational health is a very complex arena. If a GP (of 7 years training) is not willing to commit him/herself to commenting upon functional capacity, then I find it quite astonishing that anyone (DWP/Maximus) can rely upon the credibility of a person with little or no OH training (such as a nurse or physio').  

If the WCA was properly designed as a thorough and objective assessment, then I believe, it would at the very least, need to be performed by an OH professional (medic). Nurses and other HCP are effectively being used as 'cheap' labour to carry out a formulaic assessment that is not fit for purpose i.e. lacking in the necessary rigour to assess whether a person is capable to perform in a job they would otherwise be able to do (if not incapacitated).

I don't believe the WCA design is an accident  I am convinced that the crude design is calculated to prevent claimants meeting the threshold for financial assistance.

I think you must be right C, hence the reason so many people fail the WCA and MR process!

Mary_FV wrote:DWP rarely ever requests it!

Going through how the paper trail works, it appears to me that no medical evidence is ever seen by any DM until after the HCP WCA report has been sent to them.

From Chapter 42:

The questionnaire, the medical report, and any other medical evidence obtained by medical services, are referred to the DM to consider whether the claimant has LCW.

The DM determines whether the assessment is satisfied from
1. the questionnaire if one is available (see DMG 42161) and
2. a statement from the GP1 if one is available and
3. the medical report of the claimant’s ability to perform the specified functions and
4. the personalised summary statement and
5. any other relevant evidence.

However, there is provision for the claimant to send medical evidence directly to the DWP and bypass Atos or Maximus completely:

Evidence of LCW should be provided for the day or days of LCW until the claimant has undergone the LCWA. Evidence may be1
1. self-certification2 (see DMG 42146) or
2. a statement from a doctor3 (see DMG 42148) or
3. if it is unreasonable to require such a statement, other evidence which is sufficient to show that the claimant is limited by their physical or mental condition and it is not reasonable to expect them to work because of some specific disease or bodily or mental disablement4.

A Fit Note may not sufficiently describe the difficulties a claimant may have, or a deterioration in their condition has occurred after an ESA50 has been sent (for instance surgery has taken place). Under the above provision the claimant can clearly send evidence other than a Fit Note to the DWP before the LCWA. In fact, claimants are required to inform the DWP if their condition has improved or deteriorated. As there is no way to have a new Fit Note issued until the old one has run out, then when a condition deteriorates there must be some mechanism for the claimant to inform the DWP about it. I see no signposting directing the claimant to inform Maximus or Atos about it.

Is this then a way to get medical evidence directly to the DWP without it going into the black hole that is Atos or Maximus?

Cross reference:
https://respectfulbenefits.forumotion.com/t234-a-guide-to-medical-evidence

In a recent case I assisted with I asked the person to get his GP to complete the medical questionnaire, which he did brilliantly and no charge was made.
This evidence was copied to to the Decision Maker by the Tribunal. When I consulted with Welfare Rights they thought it was so good s/he would not have to attend the Tribunal. However, the Tribunal wanted all the evidence from every consultant & medical professional.

I had to pay £35 from memory for a GP letter, some charge up to £100. I also included in my evidence, witness testimony, a diary, the Occupational Health Assessor's report and copies of my consultant's letters that are automatically sent to me after each consultation.

A diary is very useful to a GP, DWP/a Tribunal, because it helps them understand your day to day pain/difficulties. Use a score of 1-10 to describe pain levels.

Thank you for the links on the new thread about medical evidence. I will scrutinise them lol

All very good tips you list btw.