16 April 2008
Extraordinarily harsh criteria were used by doctors carrying out pilot employment and support allowance tests on people with mental health conditions, according to confidential guidance obtained by Benefits and Work.
In relation to one descriptor, doctors were even trained not to award points if the claimant could learn how to pick up a cardboard box and put it on a shelf.
The training was provided in December 2006 to doctors carrying out the second pilot of the revised personal capability assessment – now the work capability assessment - in January 2007. The half-day course was created because it was considered by the technical working group that there was a lack ‘of awareness of the level of severity of illness/disability the descriptors were intended to represent’ by the doctors who carried out the first pilot.
In other words, the technical working group considered that the first group of doctors were much too generous in their awarding of points. This issue was also addressed at a later date by simply removing many of the descriptors the doctors had been awarding points for and making others much more difficult to meet.
The second group of doctors were given a copy of the descriptors and the guidance created by the technical working group, which was originally published in Transformation of the Personal Capability Assessment in September 2006. However, they were also given additional written guidance by an unnamed member of the mental health technical working group. This group included employees of Unum Provident and Atos Healthcare.
The very first descriptor in the mental health test was, at that time:
'Cannot learn how to successfully complete a simple task, such as the preparation of a hot drink, at all.' (This task has been changed to ‘setting an alarm clock’ in the work capability assessment). Fifteen points are scored for this descriptor.
The training given to doctors explained:
‘An example of the level of task in a work place environment this functional descriptor represents would be, for example, an instruction with demonstration from an employer such as “your job every morning is to pick up each of those boxes and put them on the shelf” and the person would be expected to be able to remember this task for the next day.’
A more complex task, doctors were told, would be:
‘pick up those boxes, arrange them in order of colour and size and put them on the shelf.’
Doctors were thus being trained to understand the descriptor in a way that bore no relation whatsoever to the actual wording of the proposed legislation. Preparing a hot drink is a much more complex, and potentially hazardous task, than picking up boxes off the floor. The guidance not only emphasises the very extreme levels of disability the DWP intend to require evidence of, it also gives an insight into the kind of employment they may have in mind as suitable for claimants with learning disabilities.
The Getting about descriptor relates to the ability to ‘get to any specified place with which he is, or would be, familiar’. Doctors were told that:
'The level of anxiety experienced would be expected to be at a level of severe panic attacks, where severe somatic symptoms are experienced.'
In fact, no mention of anxiety even appears in the legislation, though it is referred to in the guidance issued with the pilot test. Once again, doctors were being trained to interpret an activity in a way that bore no relation to the actual wording of the proposed legislation and which made points much harder to score.
The personal action descriptor is a bewildering one at best. The first descriptor, worth 15 points, is awarded to people who:
'Cannot initiate or sustain any personal action (which means planning, organisation, problem solving, prioritising or switching tasks).'
Doctors were told that that this was aimed at people who ‘struggle to deal with their affairs such as bills or finances, such that the person may require an appointee or have input from a support worker or homemaker.’
Yet many people have to cope with this level of disability without the availability of a support worker or a ‘homemaker’, much less an appointee. According to the actual regulations, 6 points could be scored for this activity by people who only need help twice a month, far below the level at which an appointee or support worker is likely to be required. Again, it suggests that the DWP intend to interpret these regulations in a way that makes them extremely difficult to apply to people with mild to moderate mental health conditions.
Propriety of behaviour
In relation to propriety of behaviour, six points could be scored in the pilot test by a claimant who:
‘Demonstrates a disproportionate reaction to minor events or to criticism but on an occasional basis and not to an extreme extent.’
Doctors were told in their training that:
‘In this functional area, one of the most important factors is that the affected individual has no insight into their behaviour. It reflects those with significant cognitive impairment as a result of organic brain disorder.’
Yet, the regulation itself makes no mention whatsoever of organic brain disorder being required or that the claimant has to have ‘no insight into their behaviour.’ The DWP trained doctors to assess claimants on the basis of requirements that simply don’t exist in the regulations.
It is a cause for enormous concern that there is such a huge difference between the test set out in the pilot regulations and the test the DWP actually applied. If a similar approach is adopted to the regulations which now make up the limited capability for work assessment, then claimants and their representatives may be in for some very difficult times.
Of course, the final decision about how these regulations are interpreted rests not with the DWP, but with tribunals, commissioners and, ultimately, the higher courts. But in many cases it is likely to take years before a final decision is made as to the correct interpretation, leaving the DWP free to misapply the rules throughout that period.
The government have already budgeted for a one third increase in incapacity related appeals when ESA is introduced. If this training is anything to go by that may prove to be a very considerable underestimate.
Members can download a copy of the Evaluation of the revised PCA descriptors (participants pack)
Members can also download a copy of the Evaluation of the revised PCA descriptors (facilitators notes)
Please note: these packs refer to an early version of what is now the Work Capability Assessment, many of the regulations and rules surrounding them have now been altered.