Last month Release won four Employment and Support Allowance (ESA) appeals at Social Security Tribunals on behalf of our clients. A good month you might say, but in fact it’s not unusual. An increasing number of our clients are being deemed capable of work following Atos medical assessments and then finding that their benefits stop as a result. For many this comes as a complete shock as they struggle to manage their affairs and don’t often open letters – especially the brown envelopes!
But the country has to save money, and so there has to be a system to weed out the false claims doesn’t there? But what if that system doesn’t work? What if, instead of identifying those that really shouldn’t receive sickness benefits, the system actually excludes those who are most in need of support? This is exactly what the DWP’s method of assessing ESA claimants does in relation to people who use drugs (and many other groups). Clients report assessments lasting no more than 20 minutes, physical examinations undertaken when only mental health conditions are reported by the claimant, completely incorrect information being recorded and supporting evidence being ignored. How can this possibly determine someone’s fitness for work or otherwise? In short, it can’t. But it does.
Last month Release, along with the UK Drug Policy Commission, Central & North West London NHS Foundation Trust, Drug Scope and Turning Point, responded to a call for evidence about the Work Capability Assessment (WCA) by Professor Harrington as part of an on-going independent review. This is the third such review and after each previous analysis Professor Harrington has made recommendations for improvement. The current evaluation intends to determine what has changed since the last report in 2011. Overwhelmingly the clients we interviewed reported no change between their most recent WCA and the one the year before. Some even said the earlier one had been better! Despite Professor Harrington’s calls for improvement in the assessment process, it appears that no change is occurring on the ground and in fact things are getting worse, with claimants continuing to suffer.
Release is successful in over 90% of the ESA tribunals they attend, and frequently get decisions overturned without even the need for an oral hearing. Shockingly, this experience is not replicated for other claimants. Figures released by the Ministry of Justice just last week show that only 42% of ESA tribunals in the first quarter of 2012/13 found in favour of the appellant. This doesn’t necessarily mean that the original decision was correct – often it is the result of having little or no support in preparing for and attending the hearing. Legal Aid is available for representation in these cases, but with a fixed fee of £167 per case payable to the representative it is not an attractive prospect – particularly if you consider the work actually involved with these cases. This often means that minimal time is spent on case preparation, and representation is then not provided so vulnerable people attend tribunals unaccompanied. As Release is not constrained by public funding our legal advisers spend 12-16 hours on an average case from start to finish, taking instructions, obtaining supporting evidence, drafting submissions and representing at the hearing. And that doesn’t include the time spent chasing the DWP when they still haven’t implemented the Tribunal decision months later! These figures highlight the need for specialist representation, and the dramatic consequences of not having it – already disadvantaged people are further marginalised.
Back to the issue of money. How much do these appeals cost the taxpayer? Between April and June 2012 there were 52,300 ESA cases disposed of by the Tribunal Service – at an average cost of £293 per case, plus £55 cost to the DWP of defending an appeal - that’s over 18 million pounds just in the first quarter of the year! This doesn’t include those cases where legally aided representation is provided. And in 42% of cases there will be the additional expenditure of lump sums to claimants to cover backdated pay that they were entitled to during the appeal period – this can reach significant amounts when you consider that many appeals take between 9 and 12 months to be heard because of the backlog.
To date the Government has already outsourced £3 billion worth of contracts to Atos for various undertakings, including a newly awarded contract of £400 million to provide assessments for those claiming the new type of disability living allowance which will be introduced next year. It is shocking that the Government continues to waste public money on a private company who continuously gets it wrong in relation to medical assessments, and even more disturbing that they intend to expand the use of this service, which undoubtedly causes further distress to those already suffering from mental and physical health problems. The Government has to take responsibility for this failure, but this is unlikely considering those on benefits have been demonised in order to bring about some of the most vicious cuts on welfare spending since the introduction of the Welfare State.