RITB Welfare Training June 2016 part 3

This is the third 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.

“the trainers were brilliant, so knowledgeable, clear and pro-claimant”

More ESA

The trainers explained that they were behind schedule due to the amount of questions generated by the subject on day 1 of the training. The approach used on the second day was to work through topics and allow questions at the end of each section. There would then be time for questions at the end of the day.

There was more discussion about the Support Group component of ESA and the limited capability for work test. Page 63 of the Big Book of Benefits and Mental Health outlines the descriptors for the support group. One of the useful, though often overlooked, descriptors for mental health is ‘conveying food or drink to mouth (without regular prompting)’. If this descriptor is satisfied then the claimant should qualify for the support group even if they have not scored sufficient points on the main test for ESA.

The group worked through a case study, introduced yesterday as a conjurer called Merlin who had fallen out of work and needed benefits help. This exercise led to discussion about the wording used for descriptors, for instance what it means to not be able to set an alarm clock or washing machine. Yvonne explained that she often encourages claimants to think about how they would cope with a new washing machine rather than one they had become used to. This can lead to questions about how easily someone would find it to pick up the instructions, change the settings and use the machine for the first time.

With ESA there is a need to give answers on the basis of how things are for the claimant for the ‘majority of the time.’ This view does allow for a good day but the answer needs to give a realistic, overall, picture for most of the time. It is helpful to back up answers on the form with examples eg whether when doing this activity the person found things went wrong, how many times this has happened, consequences of it going wrong etc. In the case of coping with unexpected change, it would be helpful to state for how long the claimant felt affected by the change afterwards.

It was pointed out how ‘getting about’ wasn’t one of the support group criteria yet could be the most debilitating feature of someone’s mental health in the case of agoraphobia.

The word ‘disinhibited’ was discussed in relation to coping ‘in the workplace’ descriptor 17. This word could apply to uncontrollable crying if emotions were close to the surface as well as behaving in an ‘inappropriate’ way. It is necessary for descriptor 17 to imagine how someone would react in a workplace rather than in safe, known surroundings like the day centre.

There is an ESA50A which is sometimes sent instead of the ESA50. This is a shorter form and just includes the support group descriptors.

When filling out the ESA50 it is best to keep the list of health problems, tablets and treatments very brief. The way that health problems affect the claimant should be completed within the main questions in relation to the descriptors and at the back of the form where there is more space. In mental health cases, payments of ESA should not be stopped if someone doesn’t complete the form. It is though very important to return the form in line with the four week time limit. The trainers encouraged participants to complete their forms in stages, allowing themselves a treat after each section. If a support group descriptor applies then this should be made clear on the form. The claimant needs to keep ‘reasonable, reliable, repeatedly’ in mind when considering how they could perform an activity.

Many participants reported having fluctuating conditions and relapses that would last for a few weeks or months before easing. The trainers urged people to be honest on the form and explain how things vary for them. Both Tom and Yvonne said that it would be wrong and bad advice to fill out the form as though on your worst day ever. This way of filling out the form may weaken someone’s credibility if they needed to go to a tribunal and explain how they were affected by their difficulties.

The face to face medical assessment is requested of around 93% of claimants of ESA. Maximus now have this contract after ATOS pulled out of its delivery. The medical assessor produces an ESA85 report which is considered by the decision maker along with evidence and the ESA50 form. There is a second part of the medical assessment called the ‘work focused health related assessment’ but this is currently suspended.

Several participants said that it would be a personal risk for them to attend a medical. The trainers said that a home visit could be requested, as could being seen by a professional of the same sex. The claimant can request in advance for the medical to be tape recorded. It would be good advice to go accompanied to the medical. The companion can offer moral support and take notes of discussions for the claimant. The assessor will still want to hear from the claimant rather than for the companion to speak for them. It was felt by participants that going to a medical alone could well lead to assumptions being made by the assessor about their capability. The medical could possibly be waived in some cases if medical evidence was very strong, eg a psychiatrist’s letter stating that the medical would lead to a psychotic episode which may result in hospitalisation.

The tape recording would need to be requested from Maximus. It would be risky for the claimant to refuse to take part if the tape recording equipment wasn’t available on the day since this could be seen as non compliance. Recording the medical covertly or openly on a mobile phone would not be acceptable to the DWP or the provider.

Several participants were anxious about completely dissociating during the medical. The trainers recommended having someone with them who could observe the onset of dissociation and point this out to the medical assessor. One participant had dissociated at their medical and the doctor had asked for her permission to end the appointment.

A question likely to be asked by the assessor would be to talk about a ‘typical day.’ It would be helpful for a claimant to have the descriptor activities in their mind or written down so that these were included in their account. The medical is really only a snapshot of the person on the day and not a true mental health assessment.

Following a medical, the claimant can request a copy of the medical report. It would also be helpful to make notes afterwards about how long the medical was, and anything that felt wrong. If there are concerns about the way the medical was conducted then a complaint should be made by the claimant to Maximus as the provider and copied to the DWP.

If the outcome of the ESA assessment (including consideration of the evidence, any medical and the ESA50) is that the person is found fit for work then they should request a mandatory reconsideration straight away. The trainers advised against rushing into a claim for JSA, particularly if living in areas where UC is being rolled out. It is important at this stage to seek advice, get the mandatory reconsideration over quickly then to lodge an appeal if the decision remains unchanged. Once making an appeal the claimant can go back to ESA at the assessment rate, or has the option of claiming JSA. Gathering evidence for a mandatory consideration could lengthen the process in an unhelpful way, so it is best initially to let the reconsideration be determined on what material has already been submitted. There are rules on repeat claims which mean that unless someone has a new or worse condition from the time when the fit for work decision was made, then they wouldn’t be paid ESA until they had another Work Capability Assessment. It is important to appeal decisions about ESA refusals in case repeat claims are made in future.

If the claimant is placed in the WRAG rather than the Support Group they will also need to consider appealing. The WRAG does entail claimants participating in work focused interviews and work related activity which could include mandatory training or work placements, or permitted work. Unlimited sanctions do apply to those in the WRAG and these have become tougher under the new health and work programme.

A claimant applying for JSA while appealing the ESA decision doesn’t amount to a self declaration of being fit for work. The Jobcentre will need to take into account the jobseeker’s health issues. It is possible to apply for an extended period of sickness up to 13 weeks when on JSA.

It was agreed that it was useful to obtain proof of posting for benefits claims though possibly not worth sending them by recorded delivery. All post is directed to a sorting office in Wolverhampton. In future the claiming method is expected to be online by default.

“the Big Benefits Book, a superb resource”

Disability benefits and mental health

DLA and AA were introduced in 1992. These disability benefits were based on the social model of disability with an emphasis on the claimant being listened to about the impact of their health difficulties. The success for mental health claims was limited to begin with but over time caselaw defined attention needs, cooking and supervision in a way that fitted with mental health issues.

PIP has been devised as a replacement to DLA for working age adults. PIP isn’t all bad but it is undermined by the government’s intention to cut 30% from the DLA bill. DLA and PIP are payable to those in and out of work; 20% of people on DLA are in full-time work. It is though essential to inform the DWP if starting work, otherwise it could be that the claimant would have to defend a fraud allegation if reported by a third party. Starting work could potentially lead to an increase in care needs if the person needs more support to be in a workplace.

DLA, PIP and AA can lead to carers being able to claim Carers Allowance or for claimants who work to get a disability element of Working Tax Credit.

There is a qualifying test to DLA/PIP where difficulties must have been present for three months and to be expected to last for a further six months (though this doesn’t apply to DLA to PIP migrations). AA has no mobility component though this does seem to be discriminatory on the basis of age.

With PIP there is no equivalent of lower rate care of DLA. However, this doesn’t mean that those on this lower rate of care will be excluded from PIP. Some in this group will be able to qualify for standard rate of daily living component for PIP.

With PIP it is true that ‘points make prizes’ as qualifying scores come from meeting the descriptors. There are points for both daily living and mobility activities. Unfortunately, the daily living test doesn’t cover all difficulties and so the claimant needs to be aware of the descriptors so that they can focus on the most relevant points. Getting out of bed isn’t anywhere in the form as it was for DLA. Night time needs aren’t referred to either. Many people on DLA with mental health issues qualified on the grounds of needing continual supervision; this doesn’t feature in PIP in the same way. The closest aspect to this continual supervision is one point for monitoring a health condition (activity 3b). The highest scoring of the descriptors applies where more than one answer may describe someone’s difficulties with an activity.

The mobility component criteria could lead to people with mental health issues being awarded the highest rate which was rare with DLA (except for those with a severe learning difficulty). There are only 4 points available for ‘needs prompting to undertake any journey to avoid overwhelming psychological distress to self.’ The higher number of points to qualify – 8 – applies instead to ‘cannot plan a route of a journey.’

Unlike with ESA, whether the cause of difficulties is mental health or physical doesn’t matter.

“knowledgable, approachable and very friendly trainers”

The use of aids and appliances can mean that the claimant qualifies for 2 points in some descriptors. While this feature is positive, claimants should also take care not to miss the higher points available in the descriptor if other responses are true. Regulations for PIP emphasise the need for an ability to perform tasks reliably, safely, to necessary and appropriate standards, repeatedly and in a timely manner. If the claimant cannot do an activity reliably then they should be counted as not able to do that descriptor at all. If a descriptor applies at any time of day during a 24 hour period then it is considered to apply for the entire day.

As with DLA, the claimant doesn’t have to be receiving the support to have an underlying need for that support. There are specific meanings for wording of the descriptors which can again be found in the Big Book of Benefits and Mental Health. There are rules around variability which can be helpful. For PIP the claimant does need to think about how they are throughout the whole year.

There was a discussion about what counted as a meal, it was agreed that this would be a simple meal for instance chicken and vegetables. It wouldn’t amount to frozen food which is simply heated up rather than prepared. There is also a descriptor about ‘taking in nutrition’ which is about whether the claimant manages to eat and drink.

Page 322 of The Big Book of Benefits and Mental Health refers to PIP mobility and planning and following a journey. This change in policy from DLA means that many people with mental health issues may lose lower rate mobility. If someone has a person accompanying them then they would need to be there not simply for reassurance but to actively help the claimant to follow the route. Yvonne said it may be helpful for someone to imagine what happened when they had a panic attack and whether during this state they could work out how to get to somewhere safe, what would another person need to do in those circumstances. Case law does concentrate on navigation and not support. There is also a higher descriptor which could apply if the person cannot go out for the majority of days. If PIP mobility is refused but the daily living component is granted, then the claimant would need to think carefully about appealing since there would be a risk to the daily living award.

If claimants do need to go to tribunals then representation definitely helps. Participants had heard of a case where a tribunal had used the claimant’s social media profile against him. The trainers said that research on social media was more likely to apply to ‘living together’ cases but all users of the internet should still be cautious and use privacy settings.

A participant asked whether savings always needed to be declared. The trainers were clear that savings above the thresholds (please refer to the Big Book of Benefits and Mental Health) should definitely be declared and not doing so does amount to fraud. Claimants who have savings are allowed to spend them but not with the intention of depriving themselves of capital in order to qualify for benefits.

A participant asked how to notify the DWP if moving home. The trainers recommended doing this in writing. Someone else asked whether they needed to notify the DWP if they had more conditions diagnosed; the response was this would depend on whether there was a change in the amount of care/attention/prompting required.

Several participants were concerned about prejudice against PD and asked whether benefit awards were more likely to be made for other mental health conditions. The trainers suggested that diagnoses such as schizophrenia could be taken more seriously than anxiety and depression. However, for the purposes of completing the form, it is helpful to forget the diagnosis and focus on what are the effects of the health conditions on that person’s daily life.

Future training days?

  • Appeals and Tribunals
  • Universal Credit and tax credits
  • Means testing and the benefits system

Suggestions

A private Facebook group be formed for those who have been on the training so that they can support each other while helping other survivors with their benefits claims.

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