14 May 2008
Claimants will be misled as to the law and prevented from giving detailed evidence about which points they should score by the forthcoming work capability assessment (WCA) questionnaire.
In addition, answers relating to the mental health test may be used to look again at awards of disability living allowance.
The current IB50 questionnaire issued to incapacity benefit claimants is to be replaced by the ESA50 questionnaire from October 2008 for employment and support allowance claimants and from 2010 for incapacity benefit claimants.
A ‘sample’ copy of the ESA50 limited capability for work questionnaire has been published by Disability Alliance. The sample ESA50 is 27pages long, 7 pages longer than the IB50.
In spite of its length, however, it appears to have been deliberately designed to prevent claimants from selecting which descriptors should apply to them and supplying detailed evidence..
For example, the current incapacity questionnaire allows claimants to tick boxes stating whether they can’t walk, can walk a few steps or can walk 50, 200, 400 or 800 metres without stopping or severe discomfort. This matches exactly the points system in the current PCA.
The WCA form, however, only asks whether claimants can walk on level ground and whether they can walk at least 200 metres before needing to stop, with no mention of the 50 and 100 metre descriptors in the WCA at all. In addition, the form misleads claimants by asking how far they can walk before they have to stop, with no mention of severe discomfort. The correct legal test, as reflected in the current form, is how far a claimant can walk without stopping or severe discomfort.
There is a free text box to give further details about walking. But, without guidance, many claimants will not be aware of the vital importance of giving detailed and precise evidence.
Fewer tick boxes
Similarly, the bending and kneeling section only asks about the claimant’s ability to touch their knees or pick something light from off the floor, missing out the low shelf descriptor entirely.
Likewise the reaching section makes no mention of an inability to raise either arm to the top of your head as if to put on a hat.
The manual dexterity activity deals with very specific tasks, such as picking up a coin of a certain size. In the current IB50 questionnaire these are reproduced faithfully so that the claimant can say precisely which descriptors they consider apply.
In the new form, however, the nine descriptors are presented as a list of seven bullet points without sufficient detail. So, for example, a £1 coin becomes ‘a small coin’ and a star-headed sink tap becomes ‘a tap’.
Thus a claimant’s evidence that they are unable to turn a tap could be discounted on the grounds that they may have difficulty with ordinary taps, but in the doctor’s opinion they could manage a ‘star-headed’ tap, where more leverage is possible.
What is more, instead of choosing which descriptors might apply, the claimant is asked to tick a box to say whether they can do:
'Some of them
None of them
This immediately gives the misleading impression that it is necessary to have problems with more than one descriptor before points can be scored. In reality, if more than one descriptor applies, you are awarded points only for the highest scoring descriptor. Given that three of the descriptors score 15 points, it is vital that claimants are aware that a single one of these descriptors may be sufficient to pass the test and be awarded benefit.
It is true that there is also a free text box which asks:
'Use this space to tell us more. Tell us which of these you might have problems with and why. If it varies, tell us how.'
But, once again, the simple expedient of providing tick boxes has been replaced with the requirement that the claimant now writes down accurately the descriptors which apply to them and then gives further details. It is difficult to see this as anything but a deliberate ploy to collect as little evidence as possible and ensure that it is easy to challenge.
One important effect of this removal of tick boxes is that it may reduce the requirement for examining doctors to provide detailed evidence. Under the current test, when the doctor carries out a medical they must state whether they agree or disagree with the claimant’s choice of descriptor. Where they disagree they must provide a full justification for their choice of a different – usually lower scoring - descriptor. By removing many opportunities for the claimant to select specific descriptors, the need for the doctor to say whether they disagree with the claimant’s choice is also removed.
There is no attempt whatsoever to reproduce the extraordinarily complex descriptors of the mental health test in the new form. Instead, a descriptor such as:
'Cannot, due to cognitive impairment or a severe disorder of mood or behaviour, initiate or sustain any personal action (which means planning, organisation, problem solving, prioritising or switching tasks)'
is reduced to:
'Can you organise yourself to start and keep on with routine jobs?
By routine jobs we mean things like washing clothes, preparing and cooking a meal, getting drinks, getting up and dressed to leave the house and attend an appointment.'
Not only is this a gross over-simplification, it also flies in the face of the information published in the draft welfare reform bill. There, the guidance produced by the working group which drew up the new test specifically stated in relation to this activity that: ‘it does not refer to the ability to self-care or maintain an acceptable level of personal hygiene’. Further guidance provided to Atos Healthcare doctors added: ‘it is designed to reflect those who struggle to deal with their affairs such as bills or finances’.
As with physical health, over simplification leads, deliberately or otherwise, to claimants being mislead about the evidence required in relation to mental health. For example, the awareness of hazard activity looks at whether the claimant poses a risk to people or property. But the questions on the WCA form only relate to dangers to people, ignoring property altogether.
Equally worrying, however, is the way that the questions have been framed to give an almost complete set of evidence for the care component of disability living allowance.
We already know that decision makers use personal capability assessment medical reports when making decisions relating to DLA. But the information in this new questionnaire appears to be very much more focused on DLA related activities. There is a real possibility that evidence from the questionnaire and any subsequent medical could be used not just to make decisions on initial or renewal claims, but also to look again at claims already in payment
For example, claimants who, because of their health condition, are unable to cook a traditional main meal are entitled to the lower rate of the care component. Being able to cook is asked about in no fewer than four of the questions in the mental health section of the form. If a claimant fails to give accurate evidence about their cooking abilities, or if an Atos doctor clicks on the often seen ‘Cooks safely and eats well’ option in the Lima software, that may spell an end to the claimant’s DLA award.
Similarly, claimants who, because of their health condition, reasonably require help or encouragement with everyday tasks such as getting out of bed, washing and dressing may be entitled to the care component of DLA. The ability to get up, wash or dress is referred to in three of the questions in the mental health section of the form. Again, inaccurate evidence by a claimant or Atos doctor could end a DLA award based on attention needs.
Claimants who reasonably require supervision because they may be a danger to themselves or someone else may also be entitled to the care component. The evidence from the awareness of hazard activity and the propriety of behaviour with other people activity could both be used to examine an award of DLA based on supervision.
The sample form appears to relate to an earlier version of the limited capability for work test, before amendments were made to things such as the size of cartons holding liquid. However, Disability Alliance work closely with the DWP, submitting all their guides and handbooks in draft form to the DWP for comments before final revisions and, in return, they receive documents which are not made available to other agencies. It seems unlikely that the DWP would have provided such a close partner organisation with a copy of the form for publication unless it was near to the finished article.
It is depressing in the extreme then, that the DWP seem to have decided that the best way to make accurate decisions is to ask claimants misleading and incomplete questions. Anyone filling in the new form without help may be risking more than just their incapacity benefit or employment and support allowance. But, as always, Benefits and Work members will be given the best possible guidance on how to provide, detailed, accurate and focused evidence . . in spite of the wishes of the DWP.
You can download a copy of the sample ESA50 from this link