This is the detailed application I have lodged with the High Court requesting a full Judicial Review of Hertfordshire County Council's changes to policy on charging for care together with cuts in services and the slashing of funding to the very third party organisations who are expected to pick up the slack as from April Fools Day 2011 when the cuts start to bite.
Case Lodged 28th February 2011 at the Royal Courts of Justice
Detailed Statement of Grounds
Hertfordshire County Council have clearly failed to meet their duties under Section 49(a) of the Disability Discrimination Act as amended by the Disability Discrimination Act 2005 commonly known as the "Disability Equality Duty" (DED) which will form part of the "General Duty" under the provisions of the Equalities Act 2010 which comes into force in April 2011.
The consultation on proposals to change the Council's Non-residential Services charging policy, carried out between August and October of 2010, failed to meet the standards required under the DED and the provisions of the Department of Health Guidance for Councils with Social Services Responsibilities issued in 2003.
The Council have failed to have due regard of the government's announcements regarding additional funds which are being set aside precisely to offset the disadvantage disabled people and their carers face due to the austerity measures.
The planned reductions in funding to organisations such as Hertfordshire Action on Disability and the Supporting People Service and proposed restructuring of The Money Advice unit have/or are being put through without any consultation with those directly affected and in direct contradiction of the stated rationale for changes to Non-residential Services policy.
The changes in Non-residential charging policy are due to be implemented from 1st April 2011 it is therefore imperative that the issues raised in this application be resolved prior to that date given the chaos, uncertainty and distress to service users that will ensue if the changes are implemented and then have to be reversed at a later date. This is particularly true for the two grant funded bodies who are currently having to consider staff reductions and redundancies based on the reductions in their funding recently announced by Hertfordshire County Council.
It is also in Hertfordshire County Council's best interests that this matter be resolved as a matter of urgency in order that suitable provision can be made for funding any shortfall in revenue and/or the need to provide additional grant aid over and above that now proposed to Hertfordshire Action on Disability and Community Support Services throughout the county as a result of any lawful consultation and reconsideration of the policies in question under this application for judicial review.
As with the recent judicial review of the decision by the Leaders' Committee of London Councils to cut £10m from their £26.4m Grants Scheme, where it was held that decisions taken were unlawful because of failure to meet Public Sector Equality Duties, the result of this judicial review may well have far reaching implication for other local authorities and the bodies which they fund to provide services to disabled people.
An urgent clarification of the law in regard to what constitutes a "lawful" consultation in relation to changes in policy relating to disabled people and or the subsequent consideration of that policy will, therefore, be of benefit to all the service users of other local authorities in England, many of whom are currently in the process of imposing similar increases to charges at the same time as reducing services to these disabled people and at the same time also reducing the level of funding provided to the third sector organisations expected to pick up the slack following those cuts.
The interim order I am seeking is as follows:
"It be ordered that changes to the Hertfordshire County Council's Non-residential care charging policy and reductions in funding to relevant grant aided providers of services to disabled people in Hertfordshire, such as Hertfordshire Action on Disability and Community Support Services, be put on hold pending the result of the judicial review and thereafter be subject to any further directions or orders made by the court in respect of the judicial review in question."
Main Facts Relied on are as follows:
1. The original "Consultation" Document sent out via letter on the 21st July 2010 (pg 54 - 56) stresses throughout that the main rationale for the changes is to avoid making cuts in front line services. However, later decisions by HCC will clearly impact on front line services due to cuts in funding of organisations that provide services to disabled people and most notably with the 50% cut in the budget for the Community Support Service.
2. No mention is made at all about the inclusion of services provided by the Community Support Service to those in sheltered accommodation including those with extra care arrangements and/or those living in the community who none-the-less need to make use of their services from time to time like myself. In fact it was only the fact that I was considering moving into such sheltered housing myself whilst the consultation was underway that a member of staff "warned" me not to follow that option as they were aware of the implications for my net income if I was relying on the existing arrangements for Community Support.
3. In fact HCC went even further and actually forbade front line workers discussing the changes to charging with this particular group with the only direct information about the impending changes being that contained in the letter from Community Support Services to clients dated 4th February despite the fact many in this group will be hardest hit by the changes as currently those on housing benefit are entitled to free support but will be subject to the full impact of the changes to the tune of approximately £55.00 per week in many cases (pg 91)
4. Again no mention is made about the increase in charges for Meals on Wheels but this is included in the final report as though it had been part of the main consultation.
5. Despite it being obvious that the main group affected by the changes will be exactly the same group as were hit by the original change to "fairer" charging i.e. single adults in receipt of the severe disability premium of Income support or the equivalent for those on pension credit as they will now be extremely likely to lose the entire amount of the premium in charges but the "worked examples" used during the consultation (and indeed also the current charging for care leaflets provided by county to potential service users) fail to clarify this.
6. In effect HCC will now be taking the equivalent of the Carers allowance from disabled people even where they are only providing a few hours of care per week whereas those in receipt of Carers allowance have by definition to be providing a minimum of 35 hours of care per week to qualify.
7. It is impossible to read the original consultation documents without being given the impression that those who will be being expected to pay more would be the people with the means to pay because they were relatively affluent when the reality is that it is those on Income support levels of income who will effectively have 100% of their "disposable" income taken from them.
8. Whilst an albeit flawed consultation was carried out for some of the changes to the so called "Fairer" charging policy no such consultation has taken place with regard to the reductions if funding to key providers of support to disabled people which as recent case law has established is of itself a direct breach of the Disability and other Equality Duties the local authority has.
9. Perhaps the most stark evidence that this consultation and the Equalities Impact assessment were little more than a tick box exercises is that simple fact that the original proposals as included in the consultation have passed into policy with only minor changes to the day to day running of the scheme with regard to appeals but which still do not provide a truly "independent" review other than via a complaint to the Ombudsman.
10. Above all what is evidenced by all the documentation I have provided is that HCC have asked only "Can we do this?" and not asked the question "should we do this?" which should be the paramount concern of local authorities who are charged with helping to redress the disadvantage disabled people face rather than actually make matters worse for them.
N.B. The change in the policy will increase charges for care dramatically, especially for those on benefits, with people like myself seeing an increase in costs from about £35 per week to £55 as from April Fools Day.
Even worse for those current under the supported People Services in sheltered housing or extra care sheltered housing will see an increase from zero now (if they are in receipt of housing benefit) to the full charge of about £50 to £55 per week in one giant leap.
As I said in my "Everest" thread over on Ouch this is a battle I have to fight, even if I lose, because at least then the local authority will know that their actions are being challenged and not simply hidden in this years budget as "efficiency savings" with no mention at all that services are being cut or that disabled people are facing dramatically increased charges and that third party organisations expected to pick up the slack have all had their funding slashed.
For those wishing to follow the progress of the case the case number issued by the Administrative Court at the Royal Courts of Justice in London is CO/1873/2011
Further updates will follow as and when I have more news.
As it says in the Bible: "Go though and do likewise". LOL
Peter aka "Sociable"
"Go placidly..be gentle with yourself..strive to be happy"
But don't take any $hit from either the DWP or your Local Authority. :)
Campaigning against the government's distressing war on disabled benefit claimants. All posts represent the opinions of their respective authors and not WtB as a whole.
Showing posts with label Independent Review. Show all posts
Showing posts with label Independent Review. Show all posts
Thursday, 3 March 2011
Friday, 3 December 2010
The WCA Independent Review: Fit for Purpose?
The first annual review into the performance of the ESA Work Capability Assessment by the independent reviewer Professor Malcolm Harrington has been published, and calls the operation of the WCA by DWP and their contractor ATOS Origin into serious question; but did the review itself address everything it should have? As an ESA claimant and one of those who made submissions in response to Professor Harrington’s call for evidence I read the report with considerable interest and many of the conclusions and recommendations are an acknowledgement of the concerns expressed repeatedly by the disability community over the last two years or so, however detailed examination reveals some serious issues with the review. This article focuses on those issues, but that should not be taken to mean an outright condemnation of the report.
The issues with the report fall into three groups: concerns not addressed at all, concerns reported but not addressed or not adequately addressed in the recommendations and concerns with recommendations that appear to preserve or even exacerbate the problem rather than challenge it. Rather than deal with the concerns in thematic groups the ordering of the report has been retained for ease of cross-referencing.
Foreword
Professor Harrington lists a number of organisations which he met with to discuss the situation: disability charities, unions, DWP, JCP, ATOS Origin, but how much direct contact he had with individual disabled people trying to negotiate the system is not clearly indicated. It is unclear whether the review passes the litmus test of ‘Nothing About Us, Without Us’.
In his introduction Professor Harrington refers to Dame Carol Black’s report ‘Working for a Healthier Tomorrow’, describing it as part of the wider context within which the WCA has been introduced. Unfortunately Dame Carol’s report is fatally flawed by failing to acknowledge the widespread disablist bigotry experienced by disabled people in the workplace, the ultimate reason that forces many of us to access the benefits system and keeps us there, no matter our desire to work. There is no indication within the current review that Professor Harrington truly understands the sheer volume of discrimination experienced by disabled people both in finding work and in retaining it. Without that understanding, Professor Harrington lacks the perspective to view the WCA system and its outcomes from within the context experienced by disabled people.
Slightly later in his introduction Professor Harrington states ‘In addition, some conditions are more subjective and evidently more difficult to assess.’ Most disabled people would regard this statement as blatantly obvious, it is not unusual for disabled people to go through decades of medical treatment without a clear diagnosis, yet it appears that the impossibility of simply pigeon-holing disabled people according to some simple schema comes as a startling shock to DWP, ATOS Origin, and to Professor Harrington. Having identified the problem, Professor Harrington then fails to follow through to the logical conclusion that a computerised assessment system, as used by ATOS, is clearly not fit for purpose, because it cannot make an individual assessment of need and necessarily relies on a limited set of pre-programmed rules. It is worth noting with regard to this that both the Disability Discrimination Act and the new Equalities Act are built around, and define in law, the absolute necessity of dealing with each person’s disability on an individual rather than procedural basis.
Professor Harrington’s introduction closes with a paean to the benefit of work which can be summed up in its opening sentence: ‘Work is, by and large, good for people.’ This claim is repeated as the opening statement of the immediately following executive summary and at regular intervals throughout the review. Unfortunately the WCA is not dealing with a ‘by and large’ population of claimants, it is dealing with a population of people who universally experience difficulty in working because of their disabilities or illnesses and in many cases will find working adversely affecting their health. Professor Harrington’s repeated references to the benefits of work, which also raises serious concerns in other areas dealt with later, without similar acknowledgement of the universal difficulties faced by the disabled claimant population in accessing and accomplishing that work, raises serious concerns about the neutrality of his position.
Executive Summary
The Executive Summary states ‘The Work Capability Assessment (WCA) was designed to focus on a person’s capability rather than their incapacity’ and Professor Harrington clearly accepts this point as unreservedly a good thing. Yet capability and incapacity may often be diametrically opposed. To use my own situation as an example, I am capable of work that many people might label ‘rocket science’, yet doing that work results in rapidly rising pain levels, which in turn interferes severely with my ability to work at that level and ultimately prevents me from working at all. It is difficult to accomplish much while curled in a foetal position on the floor as a result of the levels of pain working has engendered. Any assessment which does not focus on both my capability and my incapacity will necessarily fail me.
Included in the review’s recommendations is a need to institute ‘champions’ in each assessment centre to mentor staff in dealing with mental, intellectual and cognitive health issues, an area where clear failings has been identified. However the review itself identifies that claimants from many other areas of disability, in essence all but people with SVIs, or who are wheelchair users or amputees and fall within the traditionally recognized definition of ‘disabled’ are experiencing similar difficulties in conducting an educated dialogue with the ATOS assessors, and the failures in education lie with the assessors, not the claimants. What goes for mental, intellectual and cognitive health issues, also goes for invisible disabilities, for fatigue and pain based disabilities, for anything which cannot be physically waved in the face of an assessor. Appointing mentors for mental, intellectual and cognitive health issues is essential, but must not stop there, and the need to educate ATOS staff around basic disability issues raises serious concerns with respect to the basic adequacy of the ATOS training regime.
Professor Harrington states that a focus for his second report will be the descriptors used in the assessment system, particularly with regard to the coverage of fluctuating conditions. However there is no indication that this is intended to do anything other than tweak the descriptors, no indication that the basic suitability of fixed descriptors against an infinitely variable range of disability will be seriously questioned. This represents a lost opportunity of significant proportions.
Chapter 1: The Review Outline
The first concern which needs to be addressed is the startlingly late appointment of Professor Harrington to perform the review. This did not occur until 29th June, 2010, with the review due by November, a seriously problematical amount of time in which to produce a report of the quality and depth the subject required. A further, related, concern for many disabled people subject to the WCA will have been the appointment of an occupational health specialist to conduct the review. The only contact many of us will have had with occupational health physicians will have been with the hired guns who wrote the medical reports to back up companies which had decided our disabilities made us too much trouble to continue employing. No matter the independence and good intentions of Professor Harrington, our past experience with openly disablist behaviour by other members of his discipline will compromise the perceived independence of his report. Someone from within the disability movement, perhaps one of the past EHRC Disability Commissioners, would have been a far better choice by having the credentials to be taken seriously by both government and disabled people.
Similar concerns exists with the panel appointed by the Secretary of State to oversee, advise and challenge Professor Harrington, which includes one senior GP, two Occupational Health professionals who work for major employers, and only one representative from a Disabled Peoples Organisation. One of the Occupational Health professionals also represented the CBI, a particularly puzzling, if not troubling, appointment.
The report clearly identifies the concerns of disabled people that their answers are being frequently ignored, distorted or downright falsified by ATOS assessors, Professor Harrington himself states “It is clear that the process by which WCA decisions are reached is crucial to ensuring the fairness of the overall assessment. Individuals need to be treated with respect, need to be listened to and be able to get their case across,” yet methods to address these concerns are signally absent from his recommendations. The suggestion of a trial of recording interviews and consideration of providing an executive summary of the WCA to the claimant might be argued to address this, but the structure of the recommendation seems to suggest that Professor Harrington has concluded the concerns expressed are largely not factually correct, that disabled claimants do not understand the structure of the assessment and that they will be forced to acknowledge this if presented with clear evidence of what was said and how the process was conducted.
But what if the evidence from the trial shows instead that the problem does lie with the assessors, as the disability community believes? A whole year of additional distorted reports will have resulted, never mind the distorted reports that have gone before. How will the people subjected to those distorted reports find justice?
Equally Professor Harrington reports the concerns of disabled people that assessors are extremely reluctant to allow them to fully explain their situation and why it limits their ability to work, trying to force them into yes/no answers that have no place in any intelligent discussion of disability, and attempt to hurry the assessment to a conclusion in order to allow them to complete both it and their report in the allocated 46-49 minutes, something which apparently concerns even the assessors themselves, yet there are no related recommendations whatsoever. Are we to assume therefore that Professor Harrington does not believe it is important to the assessment process that we are entitled to fully explain our situation and likewise accepts unreservedly the use of the
Chapter 2: The Evidence for a WCA
Chapter 2 opens with several pages extolling the virtues of work and demonising the health risks of being out of work, an attitude summed up in the statement “It must be made clear to all sections of society that being out of work is bad for an individual’s health.” This level of diktat is inappropriate in any independent review, particularly a review looking at a specific population of disabled people for whom being in work is entirely likely to have deleterious consequences. There may indeed be benefits from being in work in the general case, but we are not dealing with the general case and Professor Harrington appears to have forgotten this. Ill-considered generalisations about the ability or not of disabled people to work, further distorted into mindless bigotry by the yellow press, are leading to a significant rise in negative perceptions of disabled people from the non-disabled populace and disabled people are experiencing an all-too-necessary increase in their general fear of abuse as a result. To see ill-considered generalisations of this type repeated in this review, with an exhortation that everyone must believe them, is distressing in the extreme. At best this is a further example of Professor Harrington being unable to perceive the situation from the perspective of the individual disabled person.
Professor Harrington goes on to conclude Chapter 2 by arguing that the case for the benefit of work and the appropriate nature of ESA and the WCA is therefore proven. Yet nowhere in the chapter has he even discussed a dissenting opinion. A debate in which only one opinion is allowed is no debate at all, an argument to which no challenge is permitted is no kind of proof, scientific or otherwise. Work will benefit many disabled people claiming ESA, it will absolutely not benefit all and whether ESA and WCA are the most appropriate methods has not even been addressed, never mind pursued to a conclusion. And that is without even discussing whether WCA outcomes are matched by the availability of work and the willingness of employers to hire disabled people.
Chapter 3: Assessment: Process and Numbers
The report acknowledges that a large percentage of claimants fail to complete the WCA process, but fails to address several issues relating to this. Unaddressed, in fact not even acknowledged, is the deliberate and intentional use of ESA by the DWP as a holding pattern for benefit claimants who become temporarily too ill to actively look for work on JSA or who become unemployed for narrowly specific health reasons that do not limit their general employability. These claimants form a significant cohort of withdrawn claims and WCA attendees who can be largely guaranteed to fail the WCA, their existence serving to distort the wider statistics around ESA when combined with those claimants with significantly limiting long term disabilities. Failure to identify this cohort and classify them separately in the provided statistics compromises the value and function of those statistics.
Other issues leading to prematurely terminated claims include the intimidating nature of the ESA50 form, which is discussed later, and the widespread concern among disabled people that many claims are being abandoned because of the contempt with which disabled people perceive themselves to be treated by the process. The use of these statistics of abandoned and rejected claims by both the DWP and the yellow press to imply that ESA claimants are universally workshy (an example of collective bigotry that amounts to a deliberate and sustained campaign aimed at inciting disability hatred amongst the general populace, and confirmed to be working by the BBC’s recent survey) makes this an area of clear concern for disabled people, whether claimants or not, and further contributes to abandoned claims, but Professor Harrington glosses over it as an area with conflicting data, ATOS claiming there is no problem, respondents to the review that there is. The conflicting data may prevent conclusions from being firmly drawn, but should not have prevented the recognition that this is an area of extreme concern to the disability community, requiring corrective action to be taken
Chapter 4: Experiences of the WCA
Professor Harrington dismisses concerns expressed about the fairness of the process by disabled claimants as ‘misconceptions’. I find his attitude here very troubling. At best it is dismissive, there seems no attempt to understand why the concerns are so persistent, nor whether they may in fact represent a genuine discontinuity in his understanding resulting from an inability to consider the situation from the viewpoint of a disabled claimant. Statements made by the assessor during my own assessment would seem to validate these supposed ‘misconceptions’ as fact, not fiction, nor failure to understand. Professor Harrington worries that these ‘misconceptions’ may become commonplace. They already are, and that information is readily available on any disability discussion board.
Professor Harrington makes the bald statement that there is no evidence that ATOS are being incentivized to rule a certain percentage of claimants as fit to be placed on JSA and dismisses opinions otherwise as misconceptions, yet there are many anecdotal reports of assessors being pressurized to declare more disabled claimants as fit for work. Even Danny Alexander, MP, before accepting a position in the government as Secretary of State for
Even if the ATOS contract does not include incentives, the possibility exists that ATOS assessors may be incentivized for internal, company reasons or even because of the perceptions of their immediate supervisors as to what the company really wants; the review even acknowledges later that any assessor whose results differ from the local average will be audited, which clear incentivizes individual auditors to converge their results on an average, no matter the actual situation of the claimants they see. These concerns cannot be dismissed in a sentence, particularly when to dismiss them contradicts evidence elsewhere in the report, they must be addressed and explained away, any less suggests a contempt for our concerns and calls the reliability of the statement into question. Rhydian Fôn James’ Guardian article on the review also points out the existence of an implicit cost goal for DWP and ATOS, the need for the WCA to generate at least £250m in savings just to break even against its own costs.
Professor Harrington goes on to state that disabled benefit claimants should not fear being found fit for work and placed on JSA because DWP personnel are committed to helping disabled people and the procedures in place for disabled claimants of JSA should alleviate the concerns of those who find themselves transferred onto it. Having been a disabled claimant of JSA until February this year, before the DWP decided that JSA was completely unable to cope with my disability, I can assure Professor Harrington (as I did in my submission to the review) that the many frontline DWP personnel I dealt with, including DEAs, were near universally clueless about disability, the only exceptions being themselves disabled, and that their concept of appropriate support for a disabled claimant was to try and force me into minimum wage positions from the outset, no matter that I am a highly skilled engineer with extensive experience, an attitude that amounts to institutional disablism. It took a complaint to ministerial level to actually get them to look at my disability on an individual basis, not treat me as identical to all of their other non-disabled claimants. Other disabled people, from all across the country, report near-identical experiences. DWP and JSA are part of the problem, not part of the solution.
DWP’s sub-contractors are actually worse, even specialist disability charities such as the Shaw Trust and RBLI are widely reported to be operating from inaccessible premises, no matter the access requirements of their entire client base, while the non-disability specialist agencies lack even the most basic knowledge and understanding of disability issues, such as the legal requirements on them in relation to access and data protection. Meanwhile their overall tone in written communications can best be described as threatening (something which the report does acknowledge), not a manner likely to be productive with the many disabled people who have problems in dealing with authority or stressful situations. JSA is not fit for purpose with respect to disabled claimants.
Problems with the ESA50 form required to be completed by all ESA claimants are acknowledged in the report, but appear to have little understanding of the difficulties disabled people experience with it. The form is tens of pages of questions asking for the most intimate detail of how disability affects our lives as disabled people, yet appears to have been designed by someone completely unaware that many disabled people will find the form intimidating to the point of preferring to terminate their claim, that several decades of complex and occasionally contradictory symptoms cannot easily be fitted into a two inch high box, and that many disabled people will find a paper form difficult if not impossible to deal with due to the nature of their disabilities. Parts of the problem are easily dealt with by ensuring that an electronic version of the form is both available and publicised, but no such recommendations are made. Some of Professor Harrington’s statements in relation to the form are themselves problematical, he talks about people trying to put entries against as many questions as possible and of being coached to do so by advocacy organisations as though these are problems. Why does he consider it a problem for someone to identify every area in which their disability affects them? I was surprised by how widespread the effects of my disability were when I sat down to think about it in the systematic manner that the form enforces? Is there really something wrong in realising that your physical disability may affect you psychologically and acknowledging this? Is it really so wrong to complete the form from a position of knowledge rather than ignorance? (My WCA assessor certainly appeared to think so).
Equally Professor Harrington reports a statement by a tribunal president that “Many claimants give careful and detailed descriptions [in the ESA50] but this evidence is never referred to in the ATOS HCP report. Nor is it drawn upon by the decision-maker. It seems to be air-brushed out of the information gathering process”, yet in the immediately following recommendations section no recommendations are made to enforce the consideration by DWP and ATOS of the sole opportunity that claimants have to make a considered and systematic report on the nature of their disability.
Chapter 5: The ATOS Assessment
Chapter 5 relates that ATOS employ some 1250 assessors and that in the last year they have stopped using 25 of them for cause. Professor Harrington appears not to realise that an effective dismissal rate of 1 in 50 professional staff per annum is symptomatic of an organisation with a very serious problem.
Having discussed a wide range of misreporting by assessors, the review then dismisses them with the statement “In part these concerns reflect the difference between a medical examination, which focuses on diagnosis, and the ATOS assessment, which looks at a person’s functional capability.” Yet all of the misreporting detailed is directly or potentially relevant to functional capacity.
Professor Harrington acknowledges that the very limited training of ATOS assessors is an area of great concern for disabled people. Many disabled people have combinations of medical conditions that have taken specialists many years to reach a diagnosis over, others are without a specific diagnosis even after decades of investigation, but are recognised as genuinely disabled by the specialists who have spent years working with them. How is someone without a background in disability medicine, with barely 8 days of training, meant to be able to give a superior assessment of capability to work in comparison to a specialist with years of experience of both discipline and patient? To quote my own pain management specialist: ‘It is nearly impossible to get a doctor from another discipline to adequately acknowledge how disabling pain can be’. How can I trust the judgement of someone with 8 days training in the face of that? How can any disabled person trust it? How can Professor Harrington fail to address it in his recommendations?
Chapter 6: The Decision Making Process.
This chapter is perhaps the strongest of the review, identifying major weaknesses in the balance of the assessment process that mean it is not working as defined and outlining corrective action. Unfortunately the needs of the assessment process may run counter to historical social forces.
Professor Harrington acknowledges that the system is designed to provide for DWP decision makers to consider all of the evidence available and to overrule ATOS reports when needed, but that the decision makers themselves have identified that they are uncomfortable overruling decisions by ATOS medical staff ‘because they’re doctors’ and states that their training should be bolstered to support them in this. However this fails to address a widespread societal problem relating to the historical perception of the doctor-patient relationship. The perception of doctors as godlike figures of wisdom is still regrettably common and cannot be overcome simply by a day or two of extra training, yet the system as designed depends on precisely that.
The report also acknowledges that a high percentage of disabled people are apparently unaware that they are able to present medical evidence with the ESA50 and at the WCA itself, not simply at the appeal stage, while those who do present it frequently believe that it is simply being ignored by the ATOS assessors. The ability to present medical evidence is simply not being made known to disabled claimants, yet there are no recommendations to change this. Equally the failure of ATOS assessors to address medical evidence contrary to their conclusions in their reports to the DWP is clearly an area in need of urgent attention. It would not be unreasonable to consider the suppression of contrary medical opinions, particularly as part of a quasi-legal process, to be a serious breach of professional ethics.
Chapter 7: Appeals
In discussing appeals Professor Harrington implies that many appeals are filed because of ignorance of the assessment process on the part of claimants. This may be true in some cases, but cannot explain the very high rare of successful appeals: over 30% of decisions are being appealed, 40% of those are being upheld. Any quality department in any business would be horrified by a 12% reject rate and heads would roll if it was not fixed, The report acknowledges the high rate of appeals and hopes that they will be reduced by the additional training to be provided to assessors and the additional communication to take place with claimants, but the real problem here is not the rate of appeal, but the rate of success appeal. 4 out of 10 assessments taken to appeal are being judged to be incorrect. Imagine the outcry if a similar situation happened in the Criminal and Appeal Courts, yet the report simply glosses over this by hoping additional training will fix it.
I cannot help but be extremely concerned by Professor Harrington’s recommendation that appeal tribunals should be reminded of the benefit of work. It is impossible to construe this as anything less than an attempt to undermine the independence of the tribunal system. Is work beneficial? In general, yes; but tribunals are not dealing with the general case, they are dealing with the specific, and for many disabled people, forced into the appeals system by the failures of the WCA, work means pain, distress and the likely worsening of their conditions. An attempt to bolster the case for work without parallel reminders that this is not generally applicable to the population of disabled people who find themselves arguing their case for justice before a tribunal distorts and brings into clear question the fairness and impartiality of the appeals process. This appears to be a case of Professor Harrington thinking solely as an occupational health physician, hanging doggedly onto one of that discipline’s sacred Shibboleths come what may, and forgetting his responsibility to approach the context of the review impartially and with due regard for the needs of both the people operating the system and those who find themselves struggling to navigate it.
Chapter 8: A Programme of Work For Year 2
The approach for Year 2 necessarily draws on the conclusions discussed above, repeating the same flaws already identified. That is not to say that there is no value in the work proposed, simply that it fails to address major areas of concern. A major focus for the year is looking at the descriptors used in the process, but nowhere is there any discussion of considering whether the use of descriptors is actually appropriate, nor is any review definitively proposed outside of the area of mental, cognitive and intellectual impairments, even though identical concerns over descriptors are acknowledged by the review to exist for fluctuating and pain and fatigue based impairments. The possibility of looking at these is raised, but no more than that.
Conclusion
The conclusions repeat the tired assertion that work is universally good for you and the WCA the way to get the disabled population into work. There is no real evidence of independence of thought here, simply someone who believes the problem and the solution are precisely as the government has outlined and merely wants to smooth the process. That not all disabled people can work is barely acknowledged, that the
Not Addressed
Completely missing from Professor Harrington’s assessment is any reference of the physical suitability of DWP and ATOS premises and those of their training contractors, an issue that is frequently raised on disability discussion boards (and an issue which I for one included in my submission to the review). People have arrived for WCA and other ATOS or DWP operated assessments and meetings to find offices without on-site disabled parking, offices that are inaccessible to wheelchair users, offices that have failed to provide needed adjustments in seating and other areas. If the basic building stock is not fit for purpose, then how many disabled claimants are deciding that if the system treats their most basic needs with this contempt then they have no hope of a fair hearing and give up their claim? I know that I very nearly did. Access is not a luxury, for many of us it is an essential, our right to it is enshrined in law and failure to provide it can throw us into days, weeks, or even months of exacerbated symptoms.
Fit for Purpose?
There is clear value in parts of Professor Harrington’s report, he has identified major failings in the operation of the WCA system, but he has done it from what is largely an establishment viewpoint and has signally failed to address the needs and concerns of the disabled people who find themselves at the sharp end of the system’s decision-making process, even in cases where he has identified and reported on those concerns. The failings in the review may result from its rushed nature, but that explains rather than excuses. To sum up the report: D-, must do better next year, and, unfortunately, the personal opinions in relation to work expressed throughout the report mean that I think we may have the wrong man for the job.
And, as always, looking at ESA and the WCA only addresses a small part of the difficulty of moving disabled people into work. The active and deliberate disablism that forced many of us out of the workplace in the first place and that continues to deny us positions within it will not magically disappear by forcing hundreds of thousands of disabled people onto JSA, it will simply obfuscate the intolerance we face and draw a polite curtain across the existence of that den of bigotry at the heart of British industry.
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