Benefits Medical Examinations
The Work Capability Assessment....
designed to cut your benefits through trickery, but read on to learn how, with advice and support, you can get what you are entitled to.
The information here is particularly geared towards applications/ reviews for Employment and Support Allowance (ESA), but the same principles apply for applications/ reviews for Disability Living Allowance (DLA) and its replacement Personal Independence Payment (PIP). If you are awarded ESA you will either be placed in the Support Group or the Work Related Activity Group – the Support Group not only pays more money but also means you do not have to attend so-called work-focused interviews. ATOS are currently the main company doing the Work Capability Assessments but this all applies whichever company is involved.
1. NEVER FACE THEM ALONE AND DON’T DO IT BY PHONE
You need a trusted friend, relative or advisor to help you fill in the form, prepare for the Work Capability Assessment (WCA) and to accompany you to the interview. Contact ECAP for help and advice and to request an accompanier if you don’t know anyone who fits the bill (contact details at bottom of this page).
You have a right to be accompanied. They cannot refuse you this right - if they try then just insist you need someone with you.
The WCA form is designed to confuse and trip you up so that the DWP can find an excuse to cut your benefits. Never fill in the form over the phone, it gives them too much control and gives you too little time to think.
2. KNOW THE TERRITORY
Get help with filling the form and get familiar with the ‘descriptors’ and the ‘reliability criteria’. These are the yardsticks they are supposed to apply in deciding how many points you get at the assessment. See the end of this leaflet for where to get hold of the descriptors and reliability criteria.
If you don’t get enough points your benefit will be cut or disallowed. It’s crucial that you and your helper have these in mind while filling in the form. You are ‘bidding for points’, make sure you hit the right criteria from the start.
It is possible to win ESA, DLA or PIP without having to go to an ATOS exam. The best plan is to submit a covering letter, ideally from an organisation, along with the form. This letter should detail how the claimant fully meets one or more of the Support Group descriptors.
It’s especially important to highlight if the claimant might suffer a panic attack or become aggressive or even violent in the stressful situation of the ATOS test centre. It’s also very important to include medical evidence, eg letters from a GP or specialists.
3. BE REALISTIC
Most people have an inclination to play down the challenges they face. The people running the WCA’s want you to take this attitude so that they can get the excuse to cut your entitlement. There is no place in their tick-box mentality for the unpredictability of real life. Give them truthfully the worst-case scenario, give them yourself on a bad day.
It is natural that people with a long-term illness gradually minimise in their own minds the effect of their illness on their everyday lives and develop survival strategies to cope on a daily basis. If this habit is taken into a medical examination there is no true picture of the illness. They will try to cut your money.
4. COVER EVERYTHING
Back up every bid for points with medical evidence from your GP and any specialists you have had contact with. If medical staff are being awkward about providing such evidence seek help with pressing them to fulfil their obligations. This evidence should if possible include a letter from your GP stating that you are not fit to work and will not be for the foreseeable future (at least 6 months ahead).
If the ATOS examiner refuses to accept any of this information you should make an official complaint as soon as possible, and certainly before you are informed of the result of the exam.
Don’t leave anything out, all of your conditions or related problems are important in establishing the whole story. Make sure your helper is as aware as possible of the full range of problems you face. You should always allow plenty of time to meet with your accompanier to prepare. Make sure the full picture comes out on your form and at the interview.
5. GET IT ALL ON RECORD
Keep copies of all submissions you make and all medical evidence. Bring copies to the exam as well as submitting them with the form.
Always exercise your right to have the examination recorded. You need to request this in advance. At the end of the examination you should be given a copy of the recording.
You or your helper can also make your own recording, though you don’t need to mention this. Peter Mathison, when Chief Executive of the Benefits Agency, stated that the taping of medical examinatons can be carried out.
6. BE ON YOU GUARD AND STICK TO THE SCRIPT
You should be aware that the examination begins on entry to the examination centre and does not end until you leave the centre. They could note the length of time you can sit without apparent discomfort, how you pick up your bag, etc.
You will be asked how you travelled to the examination and if you took the bus then this could well be used against you, for example as "evidence" on mobility or mental health. They are trying to catch you out and leap to conclusions on very little evidence. Remember that they should be aware of how you are on a bad day.
Don’t allow them to sidetrack you into seemingly irrelevant lines of questioning. They’ve been known to ask about pets, where you and your helper met etc. They are seeking evidence about your capabilities and may misinterpret or misrepresent anything you say. If they start this just say you are getting tired and would rather stick to talking about your medical conditions.
Be aware that if you have mental health issues, then the medical professional will be evaluating not only what you say but how you behave, for example how you interact with him or her, whether or not you maintain eye contact, give appropriate responses, etc. In other words, if by a huge effort you manage to act "normally", then this could be used against you.
During the exam your accompanier should note where it has been established that you meet an ESA Support Group descriptor, and where you have scored points towards qualifying for ESA (or the criteria applying for DLA or PIP). Then at the end of the exam your accompanier should ask the ATOS examiner to confirm that he/ she has also noted that you have met the criteria and are not fit for work (and are in the Support Group, if that applies).
7. INSIST THAT THEY TREAT YOU WELL
To obtain benefits you are legally required to attend an examination, and the information obtained at the examination is used, within a legal framework, to decide on your benefit entitlement - it is therefore vital to make sure your legal rights are protected.
If the date for the examination is not suitable for any reason you can get the date changed. If you are unable to travel to the examination you can ask for a home visit instead. You have the right to be seen by a Doctor of the same sex.
The examination can be halted to allow you to go to the toilet, have a glass of water, take a pill, or if you feel faint or ill. The examination should only proceed if you feel happy to continue and you should refuse to do anything that hurts or distresses you.
At the examination the medical professional should be courteous and considerate, spend some time explaining the purpose of the examination, ASK if you are willing to be examined, ask you and give you time to explain YOUR OWN VIEW of how you are affected by your condition, including how it affects your ability to do day to day tasks like shopping, cooking, cleaning and so on. The medical professional should not attempt to 'manipulate' parts of your body.
The person accompanying you should take a pen and paper and also a watch - time your iterview. You can claim travel expenses for going to the examination - but if you need to take a taxi you must contact them beforehand. Remember if you tell them you took the bus this will probably be used against you – it’s important to state you got a taxi or a lift from a friend/ relative.
8. DON’T GIVE UP
Besides your right to APPEAL THE DECISION (which we recommend you do if the decision is not in your favour) you should also remember that even if you don’t score enough points under the assessment you may still have a chance of being found incapable of work. This is because of the little known ‘exceptional circumstances’ rules.
There are a number of these, but probably the most important is regulation 29 (2) (b)which states that a claimant is to be treated as having limited capability for work if "there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work." (The Employment and Support Allowance Regulations 2008)
This regulation could apply to you on physical health or on mental health grounds.
For example, if you experience severe anxiety attacks and might harm yourself or somebody else if placed in a situation you find threatening, then this might be grounds for applying regulation 29 (2) (b).
Or you may have a lung condition which is made much worse by stress and, in the past, such situations have led to a serious deterioration in your health and perhaps hospitalisation. If you would find being found capable of work, having to sign on for Jobseekers Allowance and take part in training or work experience very stressful, then that may be grounds for declaring you incapable of work under the exceptional circumstances regulations. Black Triangle disability rights group have developed template letters declaring that these regulations apply which your GP can fill in, to submit as part of your appeal.
9. AFTER THE EXAMINATION
If the medical professional did anything wrong, then as soon as possibleafterwards write a letter of complaint to the Medical Services and to the DWP - don't wait for the decision to come through. The letter should be signed by both the claimant and the accompanying person. There is more info on making a complaint in the Disability Rights Handbook (Disability Alliance), or contact us, see the end of this leaflet.
If following the ATOS test, the DWP inform you are not entitled to Employment and Support Allowance, or you are placed in the "Work-related activity group" when you should be in the "support group", then it is vital to request a reconsideration immediately.
The rules for appeals recently changed. Now, if you appeal against losing ESA, you have to ask for a ‘mandatory reconsideration’ before being able to then appeal - while waiting for the ‘reconsideration’ your benefits will stop (!!!) and so you will have to apply for JSA (and meet all the requirements) as you WONT be entitled to a hardship payment. If you then decide to appeal, your ESA will be paid at the assessment rate while you wait for a hearing. These new rules also apply to Universal Credit and P.I.P.
It is well worth appealing though as a high proportion of appeals succeed.
ATOS AND THE BIGGER PICTURE
ATOS are out to meet Government targets to force more people off disability benefits to reduce the public debt problem caused by banks gambling in the financial markets. The process is driven by cost cutting not objective medical opinion. The most vulnerable in society are being made to pay for the greed of others and the inevitable booms and busts of capitalist economics.
Medical professionals, including physiotherapists, with no experience of mental health problems, for example, are only given a matter of days training before making assessments of claimants. They are paid substantially more than NHS doctors and nurses for leaving their ethical concerns at the door. ATOS claim that they do not make the decision that throws the sick or disabled off ESA, but the decision is made by the DWP based on the ATOS report. ATOS claim too that performance targets are based simply on the number of claimants seen in a day but this lie has been exposed by both Channel4 exposes and whistle blowing ATOS staff.
There is increasing oppostion to ATOS and the Work Capability Assessments. We encourage and aid claimants organising together, and linking up with workers in employment, to oppose and take action against these benefit cuts and all oppressive government policies. Why should we put up with a system where everything is run for the profit of a rich elite? Why shouldn't society's resources belong to everyone, and be used for people's needs?
Excerpts from The Employment and Support Allowance Regulations 2008
29.—(1) A claimant who does not have limited capability for work as determined in accordance with the limited capability for work assessment is to be treated as having limited capability for work if paragraph (2) applies to the claimant.
(2) This paragraph applies if—
(a)the claimant is suffering from a life threatening disease in relation to which—
(i)there is medical evidence that the disease is uncontrollable, or uncontrolled, by a recognised therapeutic procedure; and
(ii)in the case of a disease that is uncontrolled, there is a reasonable cause for it not to be controlled by a recognised therapeutic procedure; or
(b)the claimant suffers from some specific disease or bodily or mental disablement and, by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work.
Certain claimants to be treated as having limited capability for work-related activity
35.—(1) A claimant is to be treated as having limited capability for work-related activity if—
(a)the claimant is terminally ill;
(b)the claimant is—
(i)receiving treatment by way of intravenous, intraperitoneal or intrathecal chemotherapy; or
(ii)recovering from that treatment and the Secretary of State is satisfied that the claimant should be treated as having limited capability for work-related activity; or
(c)in the case of a woman, she is pregnant and there is a serious risk of damage to her health or to the health of her unborn child if she does not refrain from work-related activity.
(2) A claimant who does not have limited capability for work-related activity as determined in accordance with regulation 34(1) is to be treated as having limited capability for work-related activity if—
(a)the claimant suffers from some specific disease or bodily or mental disablement; and
(b)by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work-related activity.
This article last updated February 2014.