By John Pring Disability News Service 18th May 2017

The Department for Work and Pensions (DWP) appears to have gone back on its promise to a tribunal to address a fatal flaw in its “fitness for work” test that has led to the deaths of multiple benefit claimants with mental health conditions.

More than two years after ministers promised the upper tribunal that it would test improvements to the work capability assessment (WCA) process, DWP has finally released some details of the measures it has introduced.

The details – which were heavily redacted – emerged following freedom of information requests from Disability News Service and lawyers from The Public Law Project (PLP), which represents the claimants who took the case.

But PLP says the DWP’s response “must call into question whether there is any political will to stop the discriminatory effect of the WCA on people with mental health problems”.

In May 2013, the upper tribunal administrative appeals chamber had ruled that the WCA discriminated against some people with mental health conditions.

DWP promised the tribunal it would work with its contractor – which at the time was Atos, which has now been replaced by the discredited US outsourcing giant Maximus – to develop a pilot programme to test ways to ensure that medical evidence relating to claimants of out-of-work disability benefits was collected more often from health professionals who knew them well.

This would ensure that fewer claimants would be found unfairly fit for work or would have to go through the WCA if it was unnecessary or harmful to them.

Previous guidelines for Maximus assessment staff stated that further medical evidence must be obtained if, for example, there was evidence of a previous suicide attempt, suicidal ideation or self-harm, and in certain other cases, such as when a claimant had an “appointee” to make important decisions on their behalf.

But DWP has now drawn up new guidance, following a small-scale study involving less than 250 claimants.

The new guidance, implemented this week, states that further medical evidence can now also be requested at the “filework” stage – the stage before any face-to-face assessment is carried out – if it is felt that “further information would be helpful”.

But if the Maximus healthcare professional decides there is no need to seek this further medical evidence, they will not need to justify that decision.

This shows that DWP has disregarded the recommendation made more than four years ago by Professor Malcolm Harrington, who carried out the third independent review of the WCA on behalf of ministers.

He said that DWP decision-makers should, at a later stage in the process, “actively consider the need to seek further documentary evidence in every claimant’s case”, and that any decision not to seek further evidence “must be justified”.

And he said that “particular care” should be taken to ensure this evidence was obtained when the claimant has a mental health condition or learning difficulty.

The information released by DWP reverses Professor Harrington’s recommendation, as it says the Maximus healthcare professional “must provide an appropriate justification” in every case in which they make a request for further medical evidence, rather than in those in which they do not.

There are also concerns that DWP never carried out the large-scale pilot, as it said it would, but only a feasibility study involving less than 250 people, which led to further evidence being requested in just 11 more cases.

It originally planned a pilot of 4,000 people, before reducing this to 1,000 people, and telling the tribunal that it first had to carry out a feasibility study before any pilot.

It now appears that no proper pilot was ever carried out, even though the upper tribunal had said its evidence was “clearly needed” to show what reasonable adjustments were needed to address the “substantial disadvantage” experienced by claimants with mental health conditions.

A freedom of information response sent to The Public Law Project by DWP refers only to “a small scale test” rather than a pilot.

DWP’s efforts to avoid taking meaningful steps to improve the safety of the WCA – by ensuring that all the necessary evidence is gathered before a decision on a claim for out-of-work disability benefits is taken – stretch back all the way to April 2010.

More than seven years ago, coroner Tom Osborne wrote to DWP to express concerns that it did not automatically seek further medical evidence from a claimant’s GP or psychiatrist if they had a mental health condition, following an inquest into the death of Stephen Carré in January 2010.

Four years later, another letter was sent to DWP by a coroner, raising the same concerns and making almost identical recommendations, this time following the death of a north London man.

The deaths of other claimants have also been linked to the failure to ensure that further medical evidence was obtained, including those of Mark Wood, Paul Donnachie, David Barr, and a woman known only as Ms D E.

Rakesh Singh, a solicitor with The Public Law Project, said: “I am seriously concerned that the DWP has failed to carry out the pilot it promised several years ago to the tribunal, that it has failed to implement the change recommended by Professor Harrington in 2012, and that it has failed to give any reasons for not doing so.

“The new guidance that has come into force this week shows that the DWP is simply not willing to listen to its own independent reviewer or to the courts about what needs to be done to make the WCA process safer and fairer for people with mental health conditions, or to learn lessons from the tragic suicides of those who had been subjected to the WCA and follow the recommendations of the independent bodies who had investigated their deaths.

“This must call into question whether there is any political will to stop the discriminatory effect of the WCA on people with mental health problems.”

A DWP spokesman said: “The pilot* in Glasgow fulfilled our commitment to test gathering further evidence at the relevant stages of the WCA process (filework, post face-to-face assessment and decision-making stages).

“A learning outcome of the pilot is that we should request additional medical evidence before the face-to-face assessment (at the filework stage).”

He added: “Additional medical evidence is not needed in every situation.

“The medically-trained healthcare professional can therefore decide whether it is necessary and we simply ask that they record the reason for requesting the additional medical evidence for the claimant’s case file.”

He said DWP had put other safeguards in place for people with mental health conditions, including giving them more flexibility with returning their “ESA50” questionnaire, and attempting to contact an ESA claimant by telephone if they have been identified as “vulnerable” and do not attend their face-to-face assessment, and, if appropriate, arranging a “safeguarding home visit” before making a decision on their ESA entitlement.

*The DWP freedom of information response refers to “a small scale test” and not a pilot

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