RITB Welfare Training Oct/Nov 2016 part 4

Two further days of training were organised by Recovery in the Bin so that members could benefit from learning about challenging PIP and ESA decisions. RITB were very fortunate that Tom Messere agreed to deliver this training. Tom is a benefits expert, active adviser, trainer and the author of the Big Book of Benefits, revising this on an annual basis from the material created by his late wife the supreme welfare rights specialist Judy Stenger.
The aim of the two days was to increase the knowledge and confidence of members, most of whom had attended the first training event, in supporting peers in not only getting ready for applying for PIP and ESA but for challenging wrong decisions by the Department of Work and Pensions (DWP). Three of the eight participants had personal, current, experience of challenging a decision, one had recently been through a tribunal for PIP.
Tom started by giving a recap of the learning from the first training event which had covered in detail the barriers to claiming, the jargon used within the benefits system, the three steps to maximising entitlement and the difficulties experienced by those with mental health issues whose needs may not be understood or visible to decision makers.
The appeals system is run independently of DWP decision making and the chances of reversing benefits decisions on appeal are statistically high. In the case of PIP there is an overall success rate of 64% for claimants overturning original decisions to refuse or award a lower amount of benefit than was due. The chances of winning an appeal rise to 95% where the claimant has representation or support at the tribunal. There has been a recent consultation about the appeals system which suggests changes to the process behind independent tribunals. We await the outcome of this consultation with fear that claimants may be shortchanged and prevented from obtaining justice.
There are ongoing welfare reforms which amount to cuts to the social security budget. Several of these reforms are years behind schedule. Some claimants of sickness benefits are still waiting to be migrated to ESA and will remain on Incapacity Benefit or Income Support until this happens. The timetable set originally for the transfer to Universal Credit was that all claimants would move to UC between April 2014 and October 2017. This migration to UC has stalled and the roll out has so far only happened in most areas to ‘simple’ claims for single jobseekers. However, there are several parts of the country where all new claimants enter UC and the aspiration is that over the coming years that the coverage of UC will be extended. The migration in the case of UC amounts to an administrative changeover rather than a reassessment for benefit. However, many claimants will be worse off under UC given the loss of disability premiums, which is one of the social security cuts designed to raise in excess of £3 billion.
The ‘migration’ to PIP is on track again and all claimants, including those with indefinite awards of DLA, will be contacted before the end of October 2017 with their ‘invitation’ to claim this benefit. The change signifies the end of working age DLA. Whereas there is some protection in the case of ESA and UC to ensure that claimants don’t lose out financially, this doesn’t apply at all to PIP which is a different benefit with different criteria from DLA. Claiming PIP means in effect that the claimant’s disability is looked at afresh with no reference to their history and files for DLA.
ESA in brief
There are two kinds of ESA, one is means-tested which is calculated based on savings and income coming into the claimant and their household. Where a claimant has a partner then they will be assessed jointly, any children will also be part of the claim. Contribution based ESA is awarded where there are sufficient National Insurance contributions and means are not taken into account unless there is a claim for an element of income related ESA to top up the benefit to bring the award to a level the claimant is expected to live on. Contribution based ESA will remain outside of UC while income related ESA will be absorbed into UC using the same test of work capability. Payment of contribution based ESA is limited to one year unless the claimant is placed in the support group. New claimants of both types of ESA have a 13 week assessment period before they are allocated to the support or work related group. The test for this selection usually involves a face to face work capability assessment by a medical assessor working for a private provider appointed by the DWP (usually Maximus). Income related ESA can be paid indefinitely as long as the claimant continues to satisfy the criteria and ‘passes’ any reassessments of their award. However, a change coming in April 2017 is that claimants placed in the WRAG of ESA will not receive any payment for this component which is worth £29.05 per week. New claimants will receive the same level of benefit as jobseekers even though they require support to prepare to return to work due to their health condition.
There are linking rules with ESA so that if a claimant decides to start paid work for 16 or more hours per week they have 12 weeks in which to return to their ESA claim. If the claimant falls ill and needs to stop work after this 12 week period then they will need to make a completely new claim for ESA with the 13 weeks’ wait for assessment while on a basic rate of benefit. They will also be affected by the cut to the WRAG component if, after April 2017 , they are later selected for this rather than the support group. Participants on the course expressed a real concern for claimants who try out work only to find themselves in an endless cycle of reassessment when they are not able to hold down jobs.
Claimants on ESA can do permitted work of up to 16 hours, earning no more than £115 per week, and it may be advisable that they try this route to employment rather than coming off ESA and finding they need to be completely reassessed if work breaks down after 12 weeks. Those claimants on the support component can do permitted work for an indefinite period. While support group claimants are not mandated to get involved in work related activity they can volunteer to do so. These claimants may want to make sure that their permitted work does not contradict the reasons why they are claiming ESA and if managing to work without support or concessions it may be argued when it comes to any benefits review that they are fit for work. Individual advice should be sought by each claimant and the DWP will need to be notified about their starting this permitted work and its nature.
Part-time work under threat
One of the participants expressed fear for part-time workers who may receive working tax credits as a disabled worker but lose this status where turned down for PIP. There will be an expectation once on UC that the claimant will look to increase their hours to full-time, ie 30 hours rather than staying with part-time work eg 16 hours unless able to prove that this is all they can do due to their health condition. The work capability test used for ESA may be applied to these cases since it remains the same in UC for those both in and out of work. RITB members also expressed disillusionment and frustration with disability charities which seem to be working with the government to endorse reforms rather than campaigning against cuts which threaten the security of part-time workers.
There was discussion throughout the day about the bias against mental health in the benefits system. A RITB member on the course had recently been turned down for PIP and the decision twice mentioned the way she was not receiving ‘regular specialist input.’ It was agreed that mental health services were now firefighting and it was rare for them to keep service users on for long periods. The DWP decision makers don’t seem to grasp the way that mental health services are discharging vast numbers of patients, unless they have section 117 aftercare protection against this action. In contrast a claimant with a physical disability may be under a hospital specialist for years even though seen rarely. While PIP is meant to be a benefit paid to those in work it was questioned whether working could go against the claimant even though they may need additional support in order to carry out their working duties.
Getting PIP
In a similar way to ESA, PIP is worked using a points system. Many mental health claimants are refused PIP even where they had long-term DLA awards on the grounds of needing supervision. Each activity within PIP is scored based on the claimant’s difficulties in completing that task. Some claimants previously on low level care of DLA are finding that they can obtain the standard rate of PIP as their points accrue when not being able to do a particular activity at their worst time of day. The most significant overall cut in awards has been to those receiving the mobility component. The introduction of PIP was planned based on a 26% cut in the amount spent on working age disability benefits. 29% of claimants should receive more out of PIP than they did on DLA, 29% of claimants will receive a lower award, 26% of claimants will receive nothing from PIP and only 16% of awards will stay at the same financial level. There is no transitional protection except for a four week run on in payment before DLA ends. PIP can’t be paid during any appeal.
There has been a mixed experience of PIP medical assessments among claimants and the success rate of PIP appeals is high. If a claimant is turned down for PIP they have 28 days to request a mandatory reconsideration – which is benefits jargon for a ‘review or revision’ of the decision. Once the claimant receives the mandatory reconsideration notice they can appeal against this decision.

Appeals

There was a discussion about sanctions and Tom encouraged any affected claimant to appeal since over half of sanctions (for ESA WRAG and JSA) are overturned. There was agreement among participants that sanctions could be cruel to mental health claimants who may have difficulties with timekeeping due to their health issues but find themselves sanctioned. It appears that job centres may have targets for sanctions and staff will knowingly apply sanctions to vulnerable people.
Participants asked Tom if he could do a flow chart of the route to follow if turned down for a decision. This would go in either of two directions – a decision could be challenged in one month and end in a revision. If the claimant remains unhappy with the decision then they could appeal within one month. This appeal could lead to a better decision for the claimant given the good rates of success at appeal tribunals. The other branch of this diagram was supersession which is explained later in these notes. Tom made clear that he wasn’t expecting participants to become advisers or to represent eachother at appeals, but to offer support to peers while working with a benefits adviser, eg Citizens Advice volunteer or case worker. Many local Citizens Advice offices are willing to write submissions for clients even if they do not have the capacity to accompany them to tribunals.

Hard decisions

There was a discussion around benefits decisions and how these are always legally binding and in writing. The time limit for challenging a decision is usually one month. Claimants should aim to keep within the time limit wherever possible, even if not sure of their challenge they could write two lines and submit this before the deadline eg ‘I disagree with the decision and I will be sending further details shortly.’ Challenging a decision can be done over the phone but preferably should be followed up in writing.
Bad decisions about entitlement to benefits do happen throughout the system and do so more often with sickness and disability benefits. While the mandatory reconsideration is the first step to challenging the decision only 15% of these are successful for the claimant. In the past there has been confusion by DWP phone operators about the advice they should give to claimants turned down for benefits, in some cases they have discouraged claimants not to appeal or not told them about asking for a mandatory reconsideration. The DWP has issued a memo to staff in order to improve the information given out to claimants so that they know their rights around challenging a decision. The message was not to be deterred from asking for a mandatory reconsideration and then appealing.
Most decisions in the DWP administered benefits system are appealable except for those which are procedural such as how the DWP will pay you. Any benefits decision can be revised. Local authorities each have their own rules for challenging decisions against council tax benefit and local welfare assistance.
In all cases where asking for the decision to be looked at again or appealing the decision, the claimant should seek advice and think carefully about the implications. The DWP can revise the award downwards or remove it entirely as well as keeping it the same or increasing it.
Decisions about benefits entitlement are made by the Secretary of State who delegates powers to decision makers working within the DWP. In the case of Tax Credits, the board of HMRC gives delegated authority to decision makers working for HMRC. Local authorities use benefits officers to rule on council tax and housing benefit decisions.

There are three ways of challenging a decision for the claimant

1) Mandatory reconsideration/revision
This can be done on any grounds whatsoever. The time limit is one month though this can be extended in some cases for up to 13 months where there are valid, recognised reasons for late submission eg being in hospital at the time of the decision notice. The mandatory reconsideration is usually completed within 4-6 weeks. 15% of decisions are changed. The next step would be appealing within the time limit of one month.

2) Supersession
A supersession can be requested at any time but only on certain grounds. Supersessions are relevant only where someone is already receiving benefit. Any award made would result in arrears being paid from the date the supersession was requested eg the change of circumstances was reported. A claimant can go to a mandatory reconsideration if not satisfied with the outcome, there is usually one month in which to do this.

3) Appeals
Independent tribunals hear appeals and will take a fresh look at the claim presented to them. Tom was positive about appeal tribunals and said that these may offer the first experience of the claimant feeling that they are heard and their evidence has been taken seriously. The tribunal will want to hear an account from the claimant, eg their typical day and the activities they have difficulty with. It is possible to withdraw an appeal at any time or to not turn up for the hearing leaving the panel to make a decision on paper. Oral hearings are far more likely to succeed than paper based hearings. Having someone with you, ideally a support worker or adviser, increases your chance of a successful hearing and while not speaking for the claimant they can share their knowledge which may flag up difficulties the claimant doesn’t think to mention. Parents are often crucial to appeals against refusals of benefit for their children as they can explain their caring routines.
A decision maker and the tribunal do not have to take into account any matter not specifically raised by the claimant.
Complaints about assessments
A participant asked if it was worth complaining about their Atos assessment which appears to have been preferred by the DWP over their own evidence. The assessment had felt wrong at the time and the conclusions drawn were wrong, including the way she had attended alone whereas she was with a friend at the medical. Tom thought that while Atos may not resolve a complaint to the satisfaction of the claimant, a tribunal would be interested in seeing the complaint letter and using it in their own weighing up of evidence. Tom encourages claimants to make notes after their experience of a medical, eg how long they were in the room for and what went on. Any inconsistencies or inaccuracies shown in the medical report could be highlighted to a tribunal. Medicals can be recorded but claimants would need to let the medical provider know in advance that they intended to do this. The provider would need an identical recording to that made by the claimant. It is advisable that the claimant would seek audio recording equipment (cds or tapes or two Dictaphones) if they are wanting to take this course of action as sometimes the provider will not be able to find the equipment on the day of the medical. A phone app wouldn’t be suitable since it can’t generate the recording to give to the provider. A RITB member offered to look up sound recording equipment and come back to the group with suggestions which comply with requirements. He has previously found tape recorders on ebay.

Supporting each other with appeals and full entitlement

One of the participants was concerned about a friend who had been turned down for PIP seemingly due to a lack of specialist medical evidence. She asked how she and others could encourage vulnerable people to appeal decisions when they may otherwise accept them or give in. Tom’s advice was to work with claimants on a step by step approach, introducing the idea of a mandatory reconsideration and working through each part of the journey with them. The claimant can withdraw at any time though should be made aware of the further they go in the process the more likely they are to be successful. Many claimants may find appeals intimidating since these can be heard in various buildings including a crown court. However, Tom explained that the tribunal tries to be as informal as possible while in a formal meeting. The tribunal values the claimant’s evidence in a way that they may not have experienced up to that point.
There was discussion throughout the day about the political climate and discourse about claimants as scroungers. The reality is that fraud in the benefits system amounts to 0.3%. The majority of welfare spend is on state pensions. There is a high amount of unclaimed benefits with estimates of around 40-70%. Claimants may be entitled to ‘any time revisions’ where the DWP accept there are grounds such as official errors, any money due can be claimed back for a period of up to 6 years. Claimants on ESA should check that they are getting the severe disability premium where they are in the support group since this may have been overlooked.
Where a tribunal awarded PIP then any award should apply to other benefits missed out on due to the first decision. This would include disability premiums within ESA and the claimant should notify their benefits office of this entitlement and arrears owing. If a claimant is already on income related ESA it is straightforward for arrears to be paid once the ESA section of the DWP is made aware. However, if ESA wasn’t in payment during the appeal time then retrospective backdating may be limited to three months. It is advisable that the claimant applies for ESA within 10 days of challenging the PIP decision. The ESA may be refused to begin with. However, a new claim for ESA could be made following the tribunal decision pointing out the date of the previous claim. Advice should be sought on this in order to protect the severe disability premium.
What to expect at a tribunal
Tribunals are independent and work outside of the DWP. You can apply for your case to be considered by a tribunal by completing form SSCS1 which goes to the Courts and Tribunals Service. The appeal needs to be in writing. If you are not using this form then you should ensure that you include all of the details that this form requires are submitted. A copy of the mandatory reconsideration notice should be included. The grounds for the appeal should be set out, for instance that you don’t think enough attention was given by the decision maker as to whether you could do activities reliably. You can also state the outcome that you are looking for, eg an award of PIP at the enhanced rate of care or ESA support group. It is advisable to send as much evidence as possible, this can come from friends and carers as well as health professionals.
At the ‘first tier tribunal’ there is usually a judge who is the legally qualified person on the tribunal, judges tend to be trained solicitors. The judge does not wear robes. There is a medical person, usually a GP who has knowledge of medical issues. The other tribunal member may either be a carer or a person with a disability. The tribunal tries to make a decision unanimously or goes to a majority verdict. The decision is made in private and the claimant is informed on the same day where possible. There may be a presenting officer from the DWP who acts as a ‘friend of the court’. The presenting officer is not there to defeat the claim but act in a neutral way.
Tribunals are held in public places, while members of the public could attend they are unlikely to do this. You should be asked if you consent to people sitting in the tribunal to watch proceedings, eg a law student or welfare rights adviser. If members of the public did come you could ask for them to be excluded. Appeals can be struck out for a limited number of reasons such as failing to comply with tribunal directions as with being outside the absolute time limit or making “frivolous or vexacious” claims. Claims that are struck out could be reinstated, do seek advice on the process.
The tribunal should give the appellant at least 2-3 weeks’ notice of the hearing. You can waive the right to be given two weeks’ notice but would need to think about whether this allowed you enough time to prepare. Once the date for the tribunal is given then it is hard to get this moved. You should notify the Courts and Tribunals service of dates which you or your representative cannot do in the next three months.

Being prepared

When preparing for an appeal you can nominate a representative who could receive papers on your behalf. The tribunal papers will be a bundle of documents with each page numbered. These papers should be sent to you within six weeks of your lodging an appeal. A reconsideration may take place again before the date of the tribunal but only a small number of decisions are changed at this stage. As the appellant at the tribunal you can prepare a statement and take in a notebook.
Any submission to the tribunal should ideally be made in advance and set out the number of points that should be applied to your care and mobility needs as found in the PIP or ESA criteria depending on the appeal decision being appealed against. When receiving this bundle of appeal papers do take a step back to consider where the decision maker is coming from, look for any weaknesses or mistakes in the medical report and at what points have been missed out. Do think about whether you can provide any further evidence. It was stressed that you can go to a tribunal even if you do not have medical evidence with you. It would be advisable that you take someone with you to the tribunal wherever possible as a support or adviser.
When you first arrive at the tribunal the clerk would usually have a chat with you and any representative/companion with you in the waiting room. In the room the judge will introduce the tribunal and your representative and any presenting officer from DWP will be asked if they wish to make initial comments.
The tribunal is inquisitorial and you will be asked many questions with answers probed and tested. This is usually done not to doubt evidence but to make sure that the judge’s decision making is robust. There was concern from participants about whether the tribunal could make judgements though it was noted that members should have wide experience of seeing claimants with different disabilities. Tom encouraged anyone making a claim to a tribunal to explain the mental health reasons behind any non compliance with medication.
The tribunal will always look at your health and needs at the time of the decision and will not generally be interested in what has happened since that decision. However, if something has occurred which may have done before the decision but has been triggered afterwards, eg the benefit result bringing on mental health crisis, you could explain how this related to your health before the decision was made.
With ESA it is important to look at the descriptors taking into account pain, fatigue, and repetition of activities. Regulations 29 and 25 can be cited where there is a risk to the claimant or others if they will be at risk of harm if not so treated as having limited capability for work or limited capability for work related activity. As for PIP the support needed in order to carry out an activity reliably and repeatedly, and within a reasonable time, needs to be stated. ‘Reasonableness’ runs through benefits legislation. Caselaw is emerging for PIP and ESA which can be used in arguments against the decision to refuse/not award the rate expected of PIP or ESA.
The DWP’s role at the tribunal
As already stated, the DWP can send a presenting officer to every tribunal. At present the DWP are recruiting 200 more presenting officers. However, the presenting officer is not meant to act as a prosecuting council. The officer should be detached and serve as a friend of the court. The DWP officer can advise on process. If you are in a tribunal and feel intimidated by the way a presenting officer is acting then you could speak with the judge. The DWP can refer tribunal decisions to upper tier tribunals. However, it is often welfare rights advisers or claimants who appeal to upper tribunals though the grounds for doing this are specific and defined eg an ‘error in law.’

The Law

Appeals are legal processes so references to the law behind benefits criteria does come up frequently.
Statute Law
This is primary law – eg the Welfare Reform Act 96
Secondary Legislation eg ESA and PIP regulations.
Reasonableness runs through all regulations and case law is created by upper tribunals based on case rulings. One of the participants pointed out how Social Care legislation didn’t refer to the same reasonableness test and there may be a conflict of opinion if sending in social services assessments for PIP evidence as the criteria are different. The reliability provision also applies to PIP activities which does not happen with social services assessments. Tom reminded members that they could select their own evidence and didn’t need to include everything they had received from services.

Defence help

There was a discussion about whether paying for a solicitor or welfare rights adviser could be worthwhile. While free advice services do exist in the UK these are under pressure due to local authority funding cuts. One member recommended Fightback and will get more details from them about their services and share these with the group. It would be important to members to have a list of reliable, legitimate advisers with experience in social security legislation and appeals.
ESA appeals
Overall ESA appeals have a 40% success rate. Around 90% succeed if a support worker or adviser is involved in supporting the claimant. It is possible to appeal being in the WRAG but do seek advice to ensure that you will not lose this status and ESA entirely. If evidence comes up in the appeal that contradicts the claim made then the tribunal sometimes may warn the claimant of this, and so allowing time for the appeal to be withdrawn. However, the claimant should consider an outcome where they do lose ESA as a result of a tribunal if there are weaknesses in their case. Independent advice should be sought when weighing up decisions.
ESA can be paid during the appeal but not during a mandatory reconsideration. The mandatory reconsideration usually takes 4-6 weeks and claimants may need to consider whether to claim JSA or see if they can manage without benefit if they have other resources, such as PIP, to live on for that period of time. However, losing ESA will trigger the loss of Housing Benefit and council tax support so the claimant would need to make a new claim with their local authority on the basis of having no income. If claiming another benefit such as JSA the local authority will need to be informed and any new claim made in line with local requirements.
It is important to appeal any ESA refusal since coming off the benefit but reapplying in future would mean starting again in the basic assessment rate group for the first 13 weeks. It is possible to claim JSA while appealing ESA and some claimants may be financially better off doing this though will need to meet jobseeking expectations ie actively seeking work and signing on. There is meant to be flexibility built into JSA where the claimant has a disability. However, there is a danger of being moved to UC and not able to go back to income based ESA even if this is later awarded on appeal. Being on UC will have disadvantages for many claimants due to the loss of disability premiums. In most areas of the country appealing ESA would be seen as too ‘complex’ for the UC cases they are processing as single jobseekers. However, parts of the country eg Croydon, Sutton and Southwark, implementing UC in full would move all claimants to UC on any change of circumstances like this. The message was to seek local advice before putting yourself in a position where you may be placed on UC.
It is advisable to claim ESA even if only getting NI credits and no income. Breaking a claim for contribution based ESA may mean that this would need to be claimed on the basis of different years’ NI contributions in future. NI contributions also matter for pension entitlement later in life.

Losing at Tribunal

While claimants have a good chance of winning a tribunal there is the possibility of the tribunal not changing the original decision or downgrading an award that was made. You should ask for full written reasons if this happens. Specialist advice is needed before appealing to an upper tribunal as that appeal must be on an error of law and not simply because you disagree with the decision reached on the day. There are further routes for appeal after the upper tribunal but decisions rarely go to these; the court of appeal and House of Lords. Where the upper tribunal agree that an error of law has been made then they may send the decision back for rehearing at a tribunal.
Means testing again
The second day of training concluded with further discussion and learning about means tested benefits. Jobseekers allowance set at £73.10 comes far short of meeting a single person’s needs for living. Tom explained applicable amount as reflecting the circumstances of the claimant and the amount the government determined was due for that type of household. There are various premiums in means tested benefits which can be very useful. Some benefits, such as carers allowance may not lead to an award of that particular benefit but instead an underlying entitlement could result in premiums. The day ended with an exercise looking at the impact of three types of individual claiming carers allowance for a person with a disability and whether money would be lost or gained, and to which party, as a result of that claim. The severe disability premium is worth £61.85 per week and care should be taken before Carers Allowance is claimed by someone else, whether or not already on benefits.

Tips from the sessions

Make sure that you are in receipt of the severe disability premium where already in the support group of ESA. You should refer to letters from the DWP setting out your award.
For claimants who have not yet been ‘invited’ to claim PIP, they may want to consider requesting their DLA files from the DWP. Though PIP is a different benefit, claimants may find that some of the material they submitted for DLA is relevant and medical evidence could be used selectively where it still applies to their current situation. This may help claimants who are no longer under specialists but whose health issues remain the same.
It does feel disappointing and unfair to claimants that years on indefinite DLA counts for nothing in the PIP process. A good way to prepare for the PIP invitation is to write a draft PIP form. This will help when needing to fill in the actual PIP form where only around three weeks is allowed in practice due to a return deadline date given by the DWP. You can find a sample PIP form on the internet and use this to practice.
If going for appeal do gather as much evidence as possible including letters on anything relevant, evidence can be for informal support such as friends and carers. You can be selective of medical evidence and choose not to send in professional letters where they do not help or add nothing to your case for benefit. Forms of medical evidence that you could send include medical letters, care plans, risk assessments and letters from a GP or ideally a consultant psychiatrist for mental health claims. However, don’t be deterred from going to a tribunal if you do not have evidence. The tribunal will see your verbal/written account as evidence. Be prepared to talk the tribunal through your reasons and points scoring. Go with someone eg CPN, support worker, adviser, friend.
Do photocopy pages 63 and 295 from the Big Book of Benefits for professionals so that they can see the descriptors for ESA or PIP when writing their evidence letters.
In writing the tribunal submission do go back to the descriptors and justify the points that you think should have been awarded and the difficulties you have around those activities. Check for law and DWP guidance that may be relevant. You can find case law on PIP on pages 346 and 347 of the Big Book of Benefits.
Some members were concerned about the date of their next ESA assessment. This date is not usually known to the claimant but tends to relate to their last assessment and the time indicated by the decision maker then. Other members feared PIP face to face assessments. The position from the introduction of PIP has changed where it was predicted that 97% of claimants would need this face to face assessment, the average is around 75% of claims with 25% decided on the papers alone.
The government has recently made announcements that regular testing for those with a deteriorating health condition will cease. The government has yet to set out a full list of conditions.

RITB extend heartfelt thanks to Alex for her excellent write up of all 4 training days and to Together for offering us a room for this training.

Tom Messere
Big Book of Benefits
http://www.bigbookofbenefits.com

Sample PIP form:
https://www.gov.uk/government/publications/personal-independence-payment-pip-clerical-claim-form

Appeal forms:
https://www.gov.uk/social-security-child-support-tribunal/appeal-tribunal

Recovery In The Bin’s ‘PD’ leaflet has been shortlisted for an award.

Dear Recovery In The Bin

I am writing to inform you that your article ‘A simple guide on how to avoid receiving a diagnosis of ‘personality disorder’’ has been shortlisted for the 2016 Clinical Psychology Forum Award. The shortlist has been created by the editor selecting one paper from each of the previous 12 month’s issues of CPF.

The full short list is:

  • Listening to what is already known: Recovery through the creative arts Emily Skye
  • Keep NICE and carry on? Reflections on evidence-based practice Laura Tinkl & Syd Hiskey
  • How accurate are modern IQ tests at categorising people as having an intellectual disability Simon Whitaker
  • A lean approach to service development Deborah Strachan & Tim Cate
  • Prevalence of offending in a community sample of individuals who have suffered a moderate- severe traumatic brain injury
    Daniel Friedland & Joerg Schultz
  • The road less travelled? An attempt to understand why families consult independent clinical psychologists
    Lynne Hipkin
  • Is access to clinical psychology training in the UK fair? The impact of educational history on application success
    Katrina Scior, Janice Williams & John King
  • Team formulation: A critical evaluation of current literature and future research directions Samantha Cole, Katie Wood & Jason Spendelow
  • Human rights: Giving clinical psychology a backbone Sarah Butchard & Beth Greenhill
  • DCP Scotland – Miller Mair and the Dumfries Clinical Psychology Department Simon King-Spooner
  • Knowing something about the bird: Formulating developmental trauma, its various relationships to substance misuse problems and service implications
    Jo Stevenson
  • A simple guide on how to avoid receiving a diagnosis of ‘personality disorder’ -Recovery In The Bin Anonymous

    The next stage is for the CPF team to select the winner according to the following criteria:

    Innovative quality: This may, for example, be a new way of working, a new political or ethical challenge for the profession, novel research methodology, or a new way of applying clinical psychology.

    Research quality: High standards from a methodological and evidential perspective. This applies to audit and evaluation as much as it does to traditional research.

    Academic quality: Researched, and considered in the context of available literature. Given the low word count for CPF articles, it should be succinct, focused and respectful in tone and style.

    The award winner will be informed prior to the Annual DCP conference and will receive:

  • –  Full conference expenses for the DCP annual conference (Conference registration fee, travel to conference, meals and accommodation). This is covered within the CPF budget line
  • –  An award lecture delivered at the DCP annual conference
  • –  A book token to the value of £200
  • –  A framed certificate
  • –  A copy of the issue of CPF in which your article appeared

    It is a great achievement to make the shortlist. Well done! I will write to you again soon with details of the winning article.

    Yours sincerely

    Dr Stephen Weatherhead
    Editor, Clinical Psychology Forum

In Place of the Crisis Team by a RITB supporter

You can contact your local PALS team if you aren’t getting the help you need from services. You can also call your local crisis team if you think you need help right away. Their number can usually be found on your local mental health trust website somewhere – check local policy for referral criteria.

If you don’t have the energy (or they are engaged) do not worry. Here is some specialist acute mental health crisis management advice that I’ve gained from using the crisis team:

1. Have a hot drink (but not hot enough to scald yourself)
2. Have a warm bath – bubbles optional
3. Distract yourself by stroking a pet (or yourself)
4. Distract yourself by watching tv or reading a magazine or book
5. Ring a friend or a mental health helpline
6. As a last resort…go to sleep
7. If you can’t sleep lie in bed in the dark
8. If none of the above work, have another bath and try them all again – mindfully.

To support longer term care you can also
1. Leave a message for your keyworker/GP to call you in the morning
2. Arrange a pdoc appointment to review your meds
3. Go for a walk in the morning since you didn’t like the suggestion to go for a walk in the dark.
4. Buy a lavender pillow

There, I have just provided you with top notch mental health advice…and saved the taxpayer the need to spend 3 years training a RMN plus the additional cost of specialist courses in crisis care.

Oh, I suppose I better give you the full extent of crisis team advice:
1. Please remember YOU need to TAKE REPONSIBILITY for your health problems
2. Thank you for sharing that you want help. Please note such requests may indicate dependency. Therefore we will support you by not supporting you. Call back if you need us.

Thank you

UPDATE: new good practice guidelines suggest bananas and colouring books also have a place in your recovery.

LATEST NEWS: Recent claims that eating more than 6 bananas could kill you are false. It would take 400 bananas to have the amount of potassium needed to kill you – and your body wouldn’t absorb it so….
YOU CANNOT OVERDOSE ON BANANAS. http://www.bbc.co.uk/programmes/p032805k?ns_mchannel=social&ns_campaign=bbc_radio_4&ns_source=facebook&ns_linkname=radio_and_music

Conclusion: Bananas remain an integral part of the ‘alternatives to the crisis team’ self-help plan
*‘Inspired by the North Durham Crisis Resolution and home based Treatment Team, an HCAS accredited provider*

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.

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

 

RITB Welfare Training June 2016 part 1

This is the first of three posts covering the Welfare Rights training we crowdfunded.

This first post is about why we ran it.

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

Why did we run this 2 day training course?
Because the odds are stacked against benefits claimants, in particular those with mental health problems. The DWP have £22 million to represent themselves in Personal Independent Payments (PIP) and Employment and Support Allowance (ESA) tribunals (source: Benefits and Work) but since 2013, people challenging benefit decisions are no longer allowed to get legal aid. This saved the Ministry of Justice – wait for it – £22 million. (source: CPAG)

On our Facebook group and in our personal lives, we keep hearing how stressful applying for ESA and PIP is and how hard it is to get support and good advice.

“weapons grade evidence is crucial”

The Work Capability Assessment for ESA is directly discriminatory and biased against mental health claimants and the Work Related Activity (WRAG) of ESA is going to be reduced to the same level as Job Seekers Allowance (JSA).

The impact of assessments are having a negative impact on our mental health – an article in the Journal of Epidemiology and Community Health in November 2015 links WCA tests for ESA with possible additional 590 suicides, increased mental health problems and hundreds of thousands of antidepressant prescriptions. This is all due to the pressure of receiving the forms, how difficult they are to fill in, the prospect of an assessment, and what is at stake i.e. losing the ability to live practically or work. (PIP is not means tested and can be claimed by disabled people in employment.)

The critieria ESA and PIP are more focused on more physical impairments and learning disabilities and this makes it more difficult for people with mental health problems to successfully claim.

Many people have been discharged from secondary mental health services because of cuts despite ongoing or enduring needs, and they cannot always access medical evidence from their former service.

GP’s may not be familiar with their difficulties and needs, and some surgeries charge fees for a letter to accompany a form, or won’t write it anything till the claim is in appeal. GP’s (and mental health professionals) need to understand that a succinct letter accompanying a form could help to prevent weeks/months of loss of income and having to go through a tribunal. It helps with ESA claims if professional supporters can make it clear that their patient is not fit for assessment, attendance at a JCP for training, work placements or employment, and to outline why and what risks this presents. Many do not know that they can do this.

So with critieria not designed for mental health problems and the difficulties in getting useful medical information from secondary or primary care, people with mental health problems are really up against it. At the same time, advice services are being cut.

That’s why we decided to run this training. We hope to encourage and inspire other groups to do similar things.

The training 

We wanted to equip ex/current mental health service users (all with previous/current experience of being a claimant) with the skills to: teach others how to fill in forms and gather evidence and to fill in or review forms with people online, by phone, or face to face, or accompany to assessments.

Often people with mental health problems feel more comfortable taking support from fellow survivors who understand the specific discrimination inherent within these processes.

14 people from RITB and across the UK attended our two day training course focusing on ESA and PIP.

“first public group situation I haven’t left in first couple of hours and didn’t feel completely out of place”

We asked everyone to pledge to pass on their skills – to learn and ‘pass the parcel’, so that 14 people with knowledge became 28 and so on, a ‘ripple out’ cascade effect of teaching and peer support.

RITB are very grateful to the following:

“there are people who actually care”

  • Everyone who donated money to make this happen
  • MHRN for use of their bank account
  • Rethink who offered us hospitality and a free room for both days
  • Our trainer Tom Messere and co-trainer Yvonne, author of The Big Book of Benefits 
  • RITB member Alex Williams for taking amazingly comprehensive notes
  • Everyone for taking part
  • And the biggest thanks to Maddog who was both driving force and organiser extraordinaire for this training:

It was personally a pleasure to organise and see people come together in solidarity and share a lot themselves, to put some faces to names and we had some lighter moments along the way too, with the occasional bark. Maddog

 

Can we recover? What does the word recover mean?

I am going to do a Recovery In the Bin rodeo and take on one of our sacred cows, and deal with a straw man.

Can we recover? What does the word recover mean? Get back what is lost? In that sense I am going to say that as such, I don’t think we can! We cannot recover (what has been lost)! Our lives have passed over too much time, unless we are talking and even then only possibly, first episode crises.

We can get better, whatever that means, I will leave that there for now, the word ‘better’ IS open for interpretation BUT not this comment.

We do other things, we resolve stuff, we tease out memories, we re-write our own narratives, we recode them, we untie knots, we tie other ones, we unbind, we give ourselves agency and self-determination towards greater autonomy, but it is a left wing and/ or liberal at the most right wing BECAUSE there is no autonomy without others having theirs too. At least a Isaiah Berlin negative freedom, with an honest positive freedom, just not an enforced negative freedom on others behind the hidden positive freedom lie. We become, and are always becoming ourselves, shedding old selves as we go, reforming and reconfigurating our relationships with ourselves and others, navigating both the physical terrain, but also the mediated social environment and the economy.

  • Alastair Kemp (Co-Founder of RITB)