Essential Information for claims, assessments and appeals.

There are three essential ideas to keep in mind when claiming Employment Support Allowance (ESA) because of the nature of the ESA50 form, and the fact that Atos are seeking to deny benefits, NOT assess disability: this will not be a fair investigation of your health issues. This information needs to be shared widely so people are made aware of them, and can use them when claiming ESA or appealing. These very helpful ideas are:

Reliably, repeatedly and safely Exceptional circumstances Regulations 25 and 31 Atos assessments and pitfalls how they try to deceive you

1. Reliably, repeatedly and safely.

Lord Fraud made this statement in the House of Lords: It must be possible for all the descriptors to be completed reliably, repeatedly and safely, otherwise the individual is considered unable to complete the activity. You might be able to go up three steps *once* but you cannot do it reliably, repeatedly and safely, and therefore, in Frauds own words you CAN NOT do it at all. Apply the phrase reliably, repeatedly and safely all through your ESA50 or appeal form, use it on each of the descriptors. Make sure you state clearly which activities you can not do reliably, repeatedly and safely because Atos will otherwise assume you are consistently capable of them all.

2. Exceptional Circumstances Regulations 25 and 31 (were previously Regulations 29 and 35.)

Regulations 25 and 31 replace the old Special Regulations 29 and 35 from before April 2013. Because of the tick-box nature of the ESA50 form, it is likely that people will fall below the number of points required to be declared incapable of work it doesnt take into account variable illnesses, mental illness, or the effects of having more than one illness. However, the Exceptional Circumstances Regulations may cover us they both state that the claimant should be found incapable of work (Regulation 29) or work-related activity (Regulation 31) if:

they have an uncontrolled or uncontrollable illness, or the claimant suffers from some specific disease or bodily or mental disablement and by reason of such disease or disablement, there would be a substantial riskto the mental or physical health of any person if the claimant were found not to have limited capability for work/work-related activity.

If you feel this is your circumstance, then we suggest adding something like this, where you put other information on the ESA50: If the scoring from my answers above is insufficient, then I believe applying the Exceptional Circumstances Regulations would be appropriate due to the severity and interaction of my conditions, and my inability to reliably, repeatedly and safely encounter work-related situations and/or safely perform work-related tasks.

I am taking all available and appropriate medication as prescribed by my doctor(s), and there are no reasonable adjustments to a workplace which would mitigate my medical condition(s). Therefore I believe being placed in the Support Group would be appropriate, because there would be a serious substantial risk to mental and/or physical health if I were placed into a workplace environment or in the work-related activity group. Please change the wording to fit your situation, delete mental or physical if appropriate, leave both in if necessary. If your illness cannot be controlled at all, or medication cant be used to control it, add that instead. Regulation 25 covers people who might be put in the Work-Related Activity Group (WRAG), which has work-focused activities, sometimes it has workfare placements, and sanctions may apply, while Regulation 31 covers people who are not fit for any kind of work activity. This is for people who might be placed in the Support Group. There are no conditions placed on you for getting your ESA, such as workfare, if you have limited capability for work-related activity. You can ask your doctor for a letter to support you with this claim, as it is stated in the regulations: (b) evidence (if any) from any health care professional or a hospital or similar institution, or such part of such evidence as constitutes the most reliable evidence available in the circumstances may be presented to support your case. The full text of the legislation appears at the end of this article (Appendix A).

3. The Atos assessment and what you need to know.

You have a right to have your assessment recorded. You will need to request this in advance, but its worth making sure you use this opportunity to gather evidence on record because in doing

so, you make it much more difficult for the Health Care Professional (HCP) to disregard what you tell them and write inaccuracies in their assessment report. I would strongly recommend you exercise this right. Its also worth knowing that Atos dont conduct medical assessments, they conduct disability analysis. You are not a patient to Atos, you are a claimant. Bear in mind throughout the assessment that your answers to any apparently innocent questions, such as:

Do you watch television Do you read Do you use the internet

may be translated into phrases for the assessment report like these:

Can sit unaided and unsupported for at least half an hour. Has no problems with concentration and focus Has no visual problems

Assessment starts on the day of your appointment with the HCP reading the form you completed when you applied for benefit. Remember that every single question you are asked is designed to justify ending your claim for ESA and passing you as fit for work. That is what Atos are contracted to do by the Government. This is not a genuine medical assessment, but rather, an opportunity for the DWP to take away the financial support that you are entitled to. Things that are noted from your form:

Did you complete the form yourself Is the handwriting legible

Are the contents coherent

These observations are already used in assessing your hand function, your cognitive state and concentration. Further observations made:

Do the things you have written add up, is there consistency Does your medication support your diagnosis What tests have you had to confirm diagnosis. For example a diagnosis of sciatica is not accepted unless diagnosed by MRI scan

Do you have supporting medical evidence from your GP or consultants. If you do, it shows that you are able to organise getting this information

When the HCP has read your form they input some data into the computer system. The assessment properly begins when they call your name in the waiting room. At this point the HCP assesses:

Did you hear your name being called Did you rise from your chair unaided, did the chair have arms or not

Were you accompanied assessing your ability to go out alone Were you reading a paper while waiting assessing your concentration

Did you walk to the assessment room unaided, did you use aids correctly. Did you navigate any obstacles safely assessing sight

The HCP will shake your hand on introduction assessing your handshake, noting if are you trembling, sweating signs of

anxiety. Note that you are under constant scrutiny. The HCP will often ask on the way to the assessment room:

How long youve been waiting assessing your ability to physically sit, and appraising your mental state How did you get here today assessing your ability to drive or use public transport

Formal assessment begins by listing medical conditions/complaints. For each complaint you will be asked:

How long have you had it, have you seen a specialist Have you had any tests, what treatments have you had Whats your current treatment. Have you had any other specialist input e.g. physiotherapy, CPN

The HCP will use a lack of specialist input/ hospital admissions to justify assessing your condition as less severe. Medications will be listed and it will be noted if they are prescribed or bought. Dates will be checked on boxes to assess compliance with dosage and treatment regime. Any allergies or side-effects should be noted.

A brief note is made of how you feel each condition affects your life A brief social history will be taken who you live with, if have you stairs in your house or steps outside your house

An employment history taken when you last worked, what you work entailed, reason for leaving employment

Your typical Day this is the part of the assessment where how you function on a day to day basis is used to justify the HCP decisions. Anything you say here is most often used to justify the HCP failing you and assessing you as fit for work. The HCP records their observations.

Starting with your sleep pattern, questions are asked about your ability to function. This will include:

Lower limb problems ability to mobilise to shop, around the house, drive, use public transport, dress, shower Upper limb ability to wash, dress, cook, shop, complete the ESA form

Vision did you manage to navigate safely to the assessment room

Hearing did you hear your name being called in the waiting room

Speech could the HCP understand you at assessment Continence do you describe incontinence NOT CONTROLLED by pads, medication. Do you mention its effects on your life when describing your typical day

Consciousness do you suffer seizures with loss of continence, possible injury, witnessed, or uncontrolled diabetes

The HCP observations include noting how far you walked to the examination room, watching to see if you removed your coat independently, did you handle medications without difficulty, did you bend to pick up your handbag

Formal examination consists of simple movements to assess limited function. Things the HCP also looks at:

Are you well-presented, hair done, wearing make-up, eyebrows waxed Do you have any pets this can be linked with ability to bend to feed and walk

Do you look after someone else as a parent or carer if you do, this will be taken as evidence of functioning

Are you doing any training, voluntary work, do you socialise this will be used as evidence of functioning

This is not a comprehensive list, but it gives you an idea of how seemingly innocent questions are used to justify HCP decisions to pass you as fit for work. Mental Health:

Learning tasks can you use a phone, computer, washing machine Hazards can you safely make tea, if you claim you have accidents, there must be emergency services involvement, e.g. fire service. Near miss accidents do not count

Personal Actions:

Can you wash, dress, gather evidence for assessment Do you manage bills

Other observations made by the HCP appearance and presentation:

Coping with assessment interview any abnormal thoughts, hallucinations, confusion, suicidal thoughts Coping with change ability to attend assessment, attend GP or hospital appointments, shopping and socialising

More HCP observations include:

Appearance, eye contact, rapport, any signs/symptoms that are abnormal mood/thoughts/perceptions. Any suicidal thoughts How you cope with social engagement- appropriateness of behaviour any inappropriate behaviour must have involved police to be considered significant

Your capacity to cope with the assessment, overall responses and level of engagement with the assessor

Again, this is not an exhaustive list, merely some examples. Additional information: Special cases: exemptions from assessment include terminal illness, intravenous chemotherapy treatment and regular weekly treatment of haemodialysis for chronic renal failure; treatment by way of plasmapheresis; regular weekly treatment by way of total parenteral nutrition for gross impairment of enteric function. At present to qualify for ESA you need to score 15 points. This can be a combination of scores from physical and mental health descriptors.To qualify for the support group you must score 15 points in one section. As long as you are claiming incomebased ESA then your award can be renewed at each assessment, if you gain 15 points. Remember that you may also qualify without meeting the 15 points criterion, even if you dont score any points, because of Exceptional Circumstances (Regulations 25 and 31) if there would be a substantial risk to your mental or physical health if you were found not to have limited capability for work and/or work-related activity respectively. Contribution-based ESA lasts for 1 year only, unless you are in the Support Group. After 1 year, in the Work-Related Activity Group (WRAG), you may only get income-based ESA if your household income is below a certain threshold. It makes no difference how long you have previously paid National Insurance. Further information: Exceptional circumstances: Employment and Support Allowance Regulation 25 Exceptional Circumstances: Employment and Support

Regulation 31 Employment and Support Allowance: 2013 Regulations in full Explanatory memorandum to all benefits 2013: Full legislation document Recommended - Implications of the changes and advice: Employment Support Allowance claim update: Exceptional Circumstances Regulations 25 and 31 The new Work Capability Assessment 2013: DWP Guide Appendix A: Regulation 25 25.(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) Subject to paragraph (3), 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 reason 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.

(3) Paragraph (2)(b) does not apply where the risk could be reduced by a significant amount by (a) reasonable adjustments being made in the claimants workplace; or (b) the claimant taking medication to manage the claimants condition where such medication has been prescribed for the claimant by a registered medical practitioner treating the claimant. (4) In this regulation medical evidence means (a) evidence from a health care professional approved by the Secretary of State; and (b) evidence (if any) from any health care professional or a hospital or similar institution, or such part of such evidence as constitutes the most reliable evidence available in the circumstances. *Regulation 25 outlines exceptional circumstances in which a person will be treated as having limited capability for work, but may be capable of work-related activities. People in these circumstances are placed in the ESA work-related activity group (WRAG) However, there are further exceptional circumstances in which a person will be treated as having limited capability for workrelated activity in addition, and will therefore be placed in the ESA support group. These are outlined by Regulation 31. Regulation 31 31.(1) A claimant is to be treated as having limited capability for work-related activity if (a) the claimant is terminally ill;

(b) the claimant is (i) receiving treatment for cancer by way of chemotherapy or radiotherapy; (ii) likely to receive such treatment within six months after the date of the determination of capability for work-related activity; or (iii) recovering from such treatment, and the Secretary of State is satisfied that the claimant should be treated as having limited capability for work-related activity; (c) in the case of a woman, she is pregnant and there is a serious risk of damage to her health or to the health of her unborn child if she does not refrain from work-related activity; or (d) the claimant is entitled to universal credit and it has previously been determined that the claimant has limited capability for work and work-related activity on the basis of an assessment under Part 5 of the Universal Credit Regulations 2013. (2) A claimant who does not have limited capability for work-related activity as determined in accordance with regulation 30(1) is to be treated as having limited capability for work-related activity if (a) the claimant suffers from some specific disease or bodily or mental disablement; and (b) by reason of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work-related activity. Appendix B

Most Atos HCPs are not doctors, they are usually nurses or occupational therapists. You can demand that a qualified doctor or specialist conducts your assessment under some circumstances. List of conditions judged suitable for assessment by neuro trained nurses/any health care profession, so make sure that you are seen by a qualified HCP: Prolapsed intervertebral disc Lumbar nerve root compression Sciatica Slipped disc Lumbar spondylosis Lumbar spondylolisthesis Lumbar spondylolysis Cauda equina syndrome Spinal stenosis Peripheral neuropathy Neuropathy Drop foot Meralgia paraesthetica Cervical spondylosis Cervical nerve root compression Cervicalgia Nerve entrapment syndrome Carpal tunnel syndrome Trapped nerve Paraesthesia Tingling Numbness Brachial plexus injury Polyneuropathy Dizziness Vertigo Essential Tremor

VWF Alzheimers List of conditions judged by the DWP and Atos Healthcare as suitable only for assessment by doctors: Stroke Head injury with neuro sequelae Brain haemorrhage Sub Arachnoid Haemorrhage Brain tumour Acoustic Neuroma Multiple Sclerosis Motor Neurone Disease Parkinsons disease TIAs Bulbar Palsy Myasthenia Gravis Muscular Dystrophy Guillain-Barre Syndrome Amyotrophic lateral sclerosis Syringomyelia Neurofibromatosis Spina bifida Polio Fits (secondary to brain tumour) Learning difficulties (with physical problems) Nystagmus Myelitis Bells Palsy Trigeminal Neuralgia Paraplegia Quadriplegia Huntingtons Chorea Huntingtons Disease Further reading:

More on questions you may be asked at assessment: DWP examination forum How to deal with Benefits medical examinations: A Useful Guide to Benefit Claimants when up against ATOS Doctors More support and advice here: How to deal with Benefits medical examinations

Written by Robert Livingstone and Sue Jones. With many thanks to Joyce Drummond for contributing such valuable information about the Work Capability Assessment.
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