Today, three judges at a tribunal equivalent to the High Court ruled that certain aspects of the process of applying for ESA (Employment and Support Allowance), including attendance at the WCA (Work Capability Assessment), were unfair to people with serious mental health conditions and/or learning disabilities. The Court said that the Department for Work and Pensions (DWP) failed to make “reasonable adjustments” to make sure that people with mental health difficulties received fair treatment. Under the Equality Act (2010), public bodies are required to make Reasonable Adjustments so that people with any form of disability are able to access services.
Specifically, the tribunal said that the system for applying for ESA and attending a WCA required claimants to understand their own mental health problems, as be able to explain them to the Healthcare Professional (HCP) conducting the assessment. The DWP also expects claimants to gather their own information in support of their application and does not, as many people wrongly assume, independently seek evidence from the claimant’s medical team. So if you don’t, won’t or can’t be proactive is putting together your own dossier of supporting evidence and sending it off to the DWP, it will never get seen.
I couldn’t agree more that mental health problems can make it impossible to understand complex information and explain it to others. When I was well and I worked as a Probation Officer, I frequently assisted clients with filling in benefits forms and telephoning the DWP’s administrative centres in Belfast and Glasgow. But when it came to completing my own benefits paperwork, I really struggled. The effects of my bipolar, as well as those of my meds, gave me brain fog. I would look at a form or a letter and simply be unable to grasp what was wanted of me. I got help with form filling, but had no idea that I could (should?) be collecting information from my GP, psychiatrist and Occupational Health specialist and sending it off to support my application. No wonder I ended up scoring zero points out of the necessary 15.
This ruling is a major victory. It’s the first official recognition that those of us with a serious mental health condition really are disadvantaged by the current system. Personally, I would argue that the system is stacked against pretty much everyone, whatever their disability, and is simply unfit for purpose; but this is at least a beginning. The DWP is now required to state how it intends to meet its duties in terms of making Reasonable Adjustments for us.
So there’s a lot of work for Mind, Rethink and individuals still to do, and we all need to support the ongoing #unfairWCA campaign. But, in the interim, ordinary people with mental health problems have no choice but to participate in an unfair system in order to claim the state benefits to which they are entitled. And while we can’t change the system overnight, we can level the playing field by sharing the information we hold as a community.
I thought I’d make a start on sharing what I know, but I’m not really a benefits expert. So I’d invite others who may be able to expand upon these tips, or correct them if I’ve got it wrong, to join the discussion, share information, and see how we can best help those going through the system to get a positive outcome.
Get help. Even if you think you know how to fill in forms, get help. If you’re preparing for a WCA, get help. Your local disability centre, Citizens’ Advice Bureau, or advocacy service may offer this service, but if at all possible I would recommend using someone from a mental health organisation. That little bit of specialist knowledge could go a long way. You may be able to get some assistance from one of the big charities – if you call their infolines (Rethink: 0300 5000 927; Mind: 0300 123 3393) they may be able to point you in the direction of support local to you.
Collect evidence. Anything that can show the impact of your condition and/or medication might be a help, especially if you are able to send it in before you go to a WCA. This could include:
- doctors’ letters
- medical certificates
- evidence from an employer or occupational health doctor
- a personal statement from you about exactly how your condition affects you and impacts on your ability to work
- a statement from a carer or relative, detailing what help they provide for you
- evidence of any other successful benefits claims
- patient information leaflets from your medication, detailing side effects
Don’t look on the bright side. I know this sounds like strange advice! But the system is set up to award nothing for someone who is optimistic. In the UK, we tend to play things down, but taking an attitude of, “Oh, I’m all right!” or “Mustn’t grumble” or “Could be worse!” will do you a disservice. The DWP needs to know how impaired you really are by your condition, and this means sharing your worst day scenario, whether on the form, or at the WCA. I know, I know, if you’re feeling relatively OK, the last thing you want to do is think back to when you were so depressed you couldn’t get up, or when you were so manic you went on that ridiculous spending spree, but it’s sharing your worst days that will get you those magic points.
Assume no knowledge. We’re told that all HCPs have “training” in mental health, but no-one seems to be willing to say what this consists of. Whether similar training exists for DWP staff reviewing claims/assessments, I just don’t know. So I would always recommend you assume they know nothing, and to spell everything out, such as:
- What your diagnosis actually means – for example, if you have bipolar, do you experience elated hypomania, irritable hypomania, panicky hypomania, elated mania, dysphoric mania? Do you experience psychosis? What are the symptoms of your different mood states, and how do they affect your functioning? How long do your mood states last?
- How long you have had the condition, and what the prognosis is (it’s important that assessors understand many conditions are lifelong!).
- Why your condition means you cannot work – for example, what it does to your sleep, your ability to concentrate, your ability to interact with others, to travel to a workplace, to dress appropriately – anything that might make it hard for you to hold down a job.
It might seem long and fiddly, and definitely get someone to help you, but it’s worth doing because Atos and DWP staff might be making completely wrong assumptions about your capabilities.
Take notes at your WCA, or ask for a recording. Regular readers will know what happened to me when I tried to take notes, but the Atos website is very clear that any claimant is permitted to take notes for their own use. Setting up a recording has to be done well in advance, and appears to be more problematic.
Take someone with you to the WCA. A mental health advocate would be ideal, although if you have an articulate friend/partner/carer they can also be a big help by gently reminding you of anything you may have forgotten to tell the HCP. Remember that sometimes what feels normal to you now really isn’t the way you used to be. Someone who knows you well can point out the differences in your current functioning.
Don’t be afraid of the appeal or tribunal process. We shouldn’t have to go there, but the general impression I get from others, as well as my own experience, is that the appeals team gives things a more thorough look than the initial HCP or DWP assessor. You may well find that your appeal is looked at more sympathetically. And if your case goes to tribunal, the best thing you can do is turn up. All too often, people don’t, because they found the WCA so traumatic. What they don’t release is that the tribunal isn’t run by the DWP at all, but my independent Judges from HM Courts and Tribunals Service. Even if they are sympathic to your case based on your file, it is really, really hard for the tribunal panel to find in your favour if you aren’t present to answer questions. This video gives more info about what to expect.
What have I missed? What are your recommendations?