RITB Welfare Training June 2016 part 2

This is the second of three posts covering the training.

This first post is the background and purpose.

The second and third posts are by Alex Williams who has written about both days – both the experience and the information.

Account of the RITB Welfare Benefits training delivered by Tom Messere and Yvonne Bennett by RITB member Alex Williams.

Disclaimer: these are notes from the training days and don’t replace individual benefits advice and reading through the Big Book of Benefits and Mental Health.
Introductions

Fourteen participants attended both sessions on the 1st and 2nd June. All participants had before signing up to the training agreed to use the learning to benefit other survivors. One participant is going to support members of the hearing voices group which she facilitates on a weekly basis, while another learner plans to set up a free workshop. Other people taking part were in a position to support peers with their claim forms and accompany them at medicals. This training model can lead to the creation of a ripple effect lasting far beyond the two days. Participants can feedback to Maddog the ways in which they have assisted other claimants, whether that is an individual or multiple people with mental health issues who really need benefits advice, advocacy and representation.

“I learned so much, how to help someone else”

The first day served as an introduction to the welfare benefits system and made reference throughout to The Big Book of Benefits and Mental Health. This book is an amazing resource which was created by Tom’s late wife, Judy Stenger, and is now in its 16th edition. Tom updates the book on an annual basis and new content is co-authored by Yvonne.

Tom and Yvonne are welfare rights advisers and trainers with vast experience of assisting claimants and health professionals, doing all levels of benefits casework from completing forms to taking cases to Upper Tribunals.

The Big Book of Benefits and Mental Health
All of the 14 people taking part in the training were given a copy of The Big Book of Benefits and Mental Health and guided on how to dip in and out of this resource to find examples, suggestions, descriptors and case law.

“the Big Book of Benefits is going to be my bible”

The Big Book of Benefits and Mental Health may seem both welcoming and scary due to its scope and size at 411 pages. The book is a practical walk through the world of benefits and includes examples of claim forms as filled in by composite clients with different mental health issues. The written examples always help claimants and advisers filling in forms to tell their story when it fulfils descriptors and underlying legislation. The reader can find toolkits and explanations which aid their claim and its likely success. The book originally came from course notes from training done by Judy at Neath Mind about benefits and mental health. The first publication was made possible by lottery funding.

The first message of the day was that there is a huge amount of unclaimed benefits out there even though there are cuts to the budget for welfare benefits. Tom and Yvonne understand well that living on basic benefits is a struggle and the premiums/top ups gained from disability benefits can make the difference between someone living and existing.

“user friendly, dispelling the jargon, I liked the examples, and it helped me to think about the varied approaches one can take. I now feel more able, with less fear, to tackle these forms, BTW lunch was spot on”

Barriers

There are many barriers to claiming benefits when the individual has mental health problems. Examples of these barriers are the complicated nature of the benefits system, the online claim form, (Universal Credit is to all be done online), the need to keep appointments and deadlines and staff attitudes which may seem unsympathetic. Letters about benefit entitlement will sometimes not even make sense to experienced advisers! People with mental health issues may feel wary and exposed by giving out their personal details as part of an application. Some people may worry that revealing they are not coping within a claim form could lead to intervention from child protection or mental health social services, though the trainers confirmed that in practice this doesn’t happen since the content of claims is between the applicant and the DWP rather than shared with care agencies.

The government is placing more emphasis on claimant responsibility which doesn’t consider how the nature of anxiety may mean that some claimants can’t open their post or turn up to appointments on time. Applying for benefits relies on telephone or online channels which cause difficulties for people who struggle to communicate with the authorities. Several participants felt anxiety about being wrongly judged by medical assessors on the basis of their appearance when ‘high functioning’ , able to apply makeup or well dressed. The benefits system does make people ‘jump through hoops’ to get the benefits that they are entitled to often.

Questions about accessing benefits

There were many questions asked on the first day about benefits and dealing with the system. One participant asked whether the social fund still existed and it was explained that in England social welfare assistance had been devolved to local authorities. This localisation means that councils operate different schemes with varying levels of support, for instance in some places a referral to a foodbank is offered rather than financial assistance. Wales and Scotland still have Social Fund schemes; the one in Scotland is particularly successful and well promoted.

Another participant was concerned about whether a claimant could be forced onto Universal Credit. At present, Universal Credit applies only to straightforward jobseeking claims though a gradual roll out will take place over the next two – three years. Universal Credit was feared by some survivors due to any ongoing contact with the Jobcentre which may expect additional hours to be worked to reduce the amount of UC paid out. Tom explained that under UC everyone is a jobseeker until they reach full time work but then the claimant would need to agree with the Jobcentre where full time hours weren’t suitable due to health reasons.

Sanctions – an unnecessary ‘last resort’

The issue of sanctions was raised frequently as a social injustice and punitive measure against the vulnerable. It is now known that 49 claimants have died while subjected to sanctions.

Sanctions will still apply under UC due to its greater conditionality. Housing costs are still paid under a sanction with UC. There has been a disproportionate use of sanctions against claimants with mental health issues. Jobcentre offices deny the use of league tables and incentives for staff to sanction, but staff may have ‘personal improvement plans’ which review their own rates and question their performance. Tom and Yvonne would encourage any claimants affected by sanctions to challenge them since over 50% are reconsidered this way.

Several participants had been rejected for disability benefits in the past and had not been in a position to appeal the decisions. In the case of unclaimed benefits there is scope to request backdating. This backdating is for three months with ESA but can extend to up to 13 months dependent on the reason given for the claim not being made in time. While most sanctions are applied to those on JSA, people in the work related activity group of ESA are subject to sanctions.

Tom drew attention to pages 374 and 375 of the Big Book of Benefits which is a form created by welfare rights advisers in Greenwich. This form can be completed by the claimant and given to the DWP to make them aware of their mental health issues and a professional they wish to nominate as a contact. If the DWP apply a sanction they could be reminded of their ‘safeguarding procedures’ and where information about the claimant’s mental health is on file the sanction should be overturned. The form would also help in the case of people who don’t attend a medical. Anyone can complete the form as a way of making the DWP aware that they are vulnerable. A good time to submit the safeguarding form could be at the start of an ESA claim or during Jobcentre contacts for those in the WRAG.

“lots of information, opportunities to ask questions, patient and helpful trainers, nice venue”

Migrations from old to new benefits

Concerns were expressed by participants over the DLA to PIP migration and how people with mental health issues would fare. The trainers made clear that the government’s position is that DLA and PIP are different benefits, and what a claimant qualified for under DLA has no bearing on what they may get for PIP. With ESA the migration was different and claimants of older sickness benefits (Severe Disablement Allowance, Income Support, and Incapacity Benefit) had some transitional protection where they would have otherwise ended up with less money. With DLA to PIP, the DWP will not refer to old evidence/papers for DLA and it will be down to the claimant to make a fresh claim and submit relevant evidence. There will be claimants who are over 65 who are caught up in the DLA to PIP migration since they were not yet 65 in April 2013 when legislation came into effect. Participants and the trainers were aware of people who had been on both rates of DLA who lost the mobility component under PIP even if they did get an award for standard daily living component.

More people with significant mental health problems have needed to become involved in the ESA assessment process whereas they had been exempt under past sickness benefits rules. For instance, Incapacity Benefit reviews were not necessary for those on the highest rate of care in DLA or anyone with a severe mental illness. There are no exemptions for ESA and all claims are subject to regular review except for terminal illness which is a different benefits track.

One participant was concerned about someone she supports whose DLA has suddenly been suspended without reason. Other participants and the trainers suggested that this may be because she had been ‘invited’ to apply for PIP but had not done so. In these circumstances, DLA is stopped after four weeks of no contact from the claimant. The action to be taken would be to contact the DWP asking why DLA had been stopped. If the reason was a failure to apply for PIP then it should be explained that the letter had not been received. The DWP could then choose to reinstate DLA while the PIP application was done and a decision made.

The migration from older sickness benefits to ESA has taken longer than planned by the government. This process was meant to have been completed by April 2014 but there are still some remaining claimants on SDA who still have yet to transfer. The way that ATOS bought themselves out of the ESA assessment contract did affect reassessments of new and existing ESA claimants. Now that Maximus are operating this contract the regular assessment regime has restarted.

“the spoken expertise brought the subject to life”

Medical support

There was a discussion about health professionals and the way that their evidence may not act in favour of benefits claims. People with mental health issues labelled as having a ‘personality disorder’ may fear their medical notes suggesting they are ‘malingering.’ One participant recommended anyone diagnosed with PD make a request under the Freedom of Information Act to look at their notes. There was agreement that PD was not seen as a severe mental illness and many CMHTs did not offer regular contact as they deem these conditions to be ‘untreatable.’ The trainers explained that claimants should think carefully before submitting medical evidence and that there was no obligation for them to give the names of unhelpful health professionals or those who didn’t know them. It is possible to nominate other supporters eg a carer, friend or GP, as well as a CPN or psychiatrist.

Medical assessments

There was a lack of faith in the medical assessment process. Reference was made to the recent Dispatches channel 4 undercover filming which showed a judgemental assessor who boasted of the money he made from the job. Tom is going to meet with Capita to discuss the culture in the office shown on this programme. He asks for any negative experiences of medical assessments so that he can feed these back to the provider. Tom also stressed that there were some good assessors and reports to come out of them.

Steps to entitlement

The trainers explained the meaning of means tested benefits which are calculated on the basis of existing income and savings, creating a top up where these fell short of set levels. Student loans are counted as income as well as income from work earnings or savings interest. Examples of a means tested benefits are Council tax reduction scheme (which varies between local councils who administer this), Tax Credits (child tax credit and working tax credit) income based ESA and pension credit. UC will be entirely means tested.

Housing Benefit is the means tested benefit which covers part or all of a household’s rent. Local Housing Allowance is the term used to indicate the limit of what can be paid for a rent in the local area, this rate is determined by local councils. The ‘bedroom tax’ has hit a disproportionate number of disabled people who may be ‘under occupying’ their homes due to having more bedrooms than their recognised household need. Councils administer discretionary housing allowance which can be applied for where there is a shortfall in rent available through Housing Benefit and the actual rent, this is usually a temporary measure.

Contributory benefits require someone to have made National Insurance contributions in order to qualify. Examples of these benefits would be contributory based ESA (which is limited to one year when in the WRAG) and contributory based JSA. These benefits will sit outside of UC which rolls various means tested earnings replacement benefits and housing costs into a single monthly payment in arrears. Contributory benefits are often missed, and it was recommended by the trainers that claimants should ask the DWP to check their contribution record since the income based benefit is conditional on circumstances remaining the same. If a partner went out to work for 24 hours a week then the claimant’s eligibility for a benefit such as income related ESA would end unless they were on a contributory benefit.

Non means tested non contributory benefits include disability benefits. These benefits do not take account of income/savings or contribution record. DLA, Attendance Allowance and PIP are in this category. Some benefits such as ESA and JSA can be received on a contributory or means tested basis or as both. Child Benefit is also paid to those with earnings and savings, though there are rules affecting higher earners (ie £50,000 and above) and from 2017 there will be a cap on two children who can be claimed for where it’s a new claim.

There are also overlapping benefits where only one (that pays the most) is paid but the underlying entitlement can still lead to additional means tested benefits/premiums. An example is where someone may apply for Carers Allowance since they are providing more than 35 hours of care per week for someone in receipt of AA, PIP or DLA at the middle rate of care. If that person was receiving a state pension then the Carers Allowance would not be paid in cash but could lead to premiums within Pension Credit, Housing Benefit and Council Tax Reduction schemes.

Where someone does not qualify for an earnings replacement means-tested benefit since their partner is in work then they should still claim National Insurance credits only. This step will help to protect their National Insurance contribution record, which matters for future state pension entitlement.

Where DLA and PIP have increased the amount of means tested benefits that have been paid in the past, when the claim changes or is lost then there will be a reduction or loss of those additional top up benefits. It is important for the claimant to inform all departments of the authorities (DWP and council) which are paying their benefits otherwise this ‘change in circumstances’ could lead to an overpayment in benefit which the claimant would have to pay back.

Means tested benefits in some cases act as a passport to free prescriptions though there is a low income scheme exemption which can be applied for. Fines are made by the NHS Prescriptions /Business Services Authority if prescriptions are collected for free without the correct confirmed entitlement in place.

“The Big book of Benefits is an amazing resource and I now feel confident to utilise it fully”

Council Tax

There was a discussion about Council Tax. One participant was keen to raise awareness of the Severe Mental ‘Impairment’ exemption for council tax. This exemption is administered by local authorities and would require approval by a doctor. Someone with dementia or learning difficulties may qualify, but there are also cases where people with severe mental health issues of a psychotic nature could be entitled to this and council tax liability would be removed (information about this is on page 201 of The Big Book of Benefits and Mental Health).

In most local authorities claimants are required to make a contribution to their council tax with the reduction scheme only covering a proportion of the total liability. This change in the system due to the government’s ‘localisation’ agenda, has created inequity between councils. Policies are different from one local authority to the next so claimants’ charges depend on their address not the affordability or circumstances.

Changes

Another key message of the course was to tell any authorities paying benefits about changes. It is wrong to assume that the departments’ systems ‘talk’ to each other. Examples of changes to report would be:

  • A partner moving in
  • A change in benefits (see above)
  • A change in health condition where this would affect the claim.

Participants expressed fears that changing their address could trigger a benefits review/invitation to claim PIP. The trainers didn’t think this was the case since the roll out of PIP is being done for indefinite awards in a random way. The only people who may be able to know their approximate date of transfer would be where they have fixed term awards which are due to end before October 2017.

Working on sickness benefits

There was an interest in permitted work from participants together with a concern that doing any work would ‘prove’ they were fit to work. The trainers considered that permitted work could be done by those on ESA as a way of trying out whether working was a possibility. It would be important to remember that work done as a volunteer or for pay could be taken in account at the next medical. Working should be declared to the DWP before a claimant starts this. The trainers didn’t think that this declaration should necessarily trigger a review unless one was already due.

ESA refers to ‘limited capability for work’ or ‘work related activity’ but does not preclude someone working, especially if they are trying this as a route out of benefits. Advice should be sought on this area if the claimant needs help to weigh up this decision against any risk to longer-term entitlement.

Claimants can receive payment for working which is:

  • £20 for an unlimited time
  • £115.50 or less, up to 16 hours – if done for one year, or thereafter if done under supervision from a medical or employment adviser (supported permitted work). With this route it may be important for the professional completing the form to phrase work being therapeutic and part of a programme. The claimant would also need to explain how they could manage this limited work rather than more hours or duties.

There is a 12 week time limit for returning to ESA linked to a previous claim. After this 12 weeks the claimant would need to make a new claim, returning to the basic rate of ESA (£73.10 per week), often beyond the 13 week ‘assessment phase.’ Anyone who has left ESA to start work should be aware of this time limit especially if the job isn’t working out and health problems return in the workplace. It may be better in these circumstances to reclaim ESA than to do this later on.

Welfare reform

Disabled people are aware of the significant cuts to welfare as part of the government’s reform agenda. Benefits have been increased by CPI, a less generous measure than RPI since 2013. There is now a freeze on annual increases to benefits which in real terms is a 5% cut to incomes. The government has imposed a benefits cap which mostly hits those with families. There is a housing crisis and while the government claims that Housing Benefit is out of control there is an underlying lack of affordable housing provision. While the government did a ‘U-turn’ on the proposed cuts to Working Tax Credits, those same claimants will suffer a drop in income when they eventually migrate to UC. Disabled workers will experience less generous support from UC than Working Tax Credit. New ESA claimants in the WRAG will not receive any more than JSA from next year, a loss of £29.05 per week.

Appeals against benefit decisions are only allowed after a ‘mandatory reconsideration’ which typically takes 4-5 weeks to determine.

Universal Credit – is it coming?

Universal Credit now exists in most areas, initially affecting jobseekers with simple claims. This is due to change with a ‘managed migration’ starting from 2018. Most people on ESA will experience a natural migration, transferring to UC as their circumstances change rather than being expected to apply for this sooner. Anyone who works will be eligible for UC on a means tested basis though will need to supply their earnings each month. The idea is that the HMRC system will receive ‘real time’ information from employers about salaries and tax, and that in time this will be communicated to DWP systems. Self-employed people will need to do an online declaration of monthly earnings.

ESA

The route to claiming ESA is to get a medical certificate from a GP confirming being unfit for work. There is a 13 week assessment period during which the claimant is paid for £73.10 per week. The claimant will be sent an ESA50 form (medical questionnaire) and in 93% of cases will be required to attend a face to face medical. The outcome of the ESA claim will be one of these three:

  1. Claimant has limited capability for work (goes into WRAG)
  2. Claimant has limited capability for work related activity (Support group)
  3. Claimant is fit for work.

Around one third of claimants are placed in the support group. Passing the ESA test to enter the WRAG depends on scoring 15 points. The ESA descriptors are on pages 64 and 65 of The Big Book of Benefits and Mental Health. On page 64 the descriptors 1-10 need to be met due to a physical health impairment rather than for mental health reasons. There are grey areas where mental health may result in physical symptoms in line with these descriptors.

“think about where difficulties can fit descriptors, often it’s not obvious”

For anyone completing the ESA50 they would need to emphasise how something may physically happen (e.g. IBS causes me to physically lose control of my bowels.’) Points gained in the physical health descriptors can be added to those in the mental health directed ones (11-17). The ESA50 contains boxes for the claimant to explain how problems affect them and it is advisable to give more details and examples relating to the descriptors. The questions on the ESA50 do not reference the actual descriptors so it is best to cross check these and to amend the form if necessary to give additional information.

Medical evidence can be sent in with the ESA50 and may mean that the claimant isn’t called for a medical assessment .

There was a question about descriptor 10 over altered consciousness. This descriptor tends to apply to those who have diabetic hypoglycaemic episodes or seizures. In the mental health descriptors there would be scope to refer to dissociation or self harm (12 awareness of everyday hazards; 14 coping with change; 15 getting about).

The trainers explained that there are regulations 29 and 35 about exceptional circumstances. If there is a ‘substantial risk to mental health or physical health if not so treated’ as having limited capability for work related activity then this could be argued as part of a challenge to a decision. There is information in The Big Book of Benefits and Mental Health about using these regulations to protect someone at risk of relapse if put through being found fit for work or fit for work related activity (see page 115).

This is the end of the account for Day 1 – you’ll find out about Day 2 here. LINK

 

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