This article describes how the Atos Work Capabilities Assessment (WCA) and associated appeal system works and how the system is unfair and biased. A further article will look at how to appeal against a decision and use the appeal that I am doing soon as an example. A final article describes the appeal hearing.

Firstly, you have to realise that there is nothing fair, balanced or just about Atos assessments and appeals. They are about attacking the most vulnerable and least able to defend themselves people in society – the sick and disabled. They are not about ensuring that only ‘real’ disabled people who deserve it get benefit – they are all about denying benefit to those that deserve those benefits and are very seriously ill.

Larry, was found fit for work after an Atos assessment. After a long career in work, he had developed a serious lung condition, his weight had dropped from 10 to seven stone and he had trouble walking and breathing. In order to qualify for employment and support allowance (ESA), the new sickness benefit worth £95 a week, he needed 15 points in the test; he was given zero. He was dismayed to note a number of significant inaccuracies in the Atos report, and decided to appeal, but died from lung problems, before the appeal was heard. One of the last things he said to his wife before doctors put him on a ventilator was: “It’s a good job I’m fit for work.”

Last year the Guardian reported on the case of Ruth Anim, who was told after an Atos assessment that she was capable of finding work in the near future, despite the fact she needed constant one-to-one care, had no concept of danger and attended life skills classes to learn practical things like how to make a sandwich or a cup of tea. She was also described in the Atos report as a “male client”. Atos apologised for “any discrepancy in our report and any distress this may have caused”.

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How it works

Disability benefits claimants are regularly reviewed and are therefore repeatedly subjected to Atos assessments and subsequent appeals – even in cases where their medical condition is very unlikely to improve. Vast sums of money are wasted on this unnecessary harassment of vulnerable and disabled people. Clearly, people with serious conditions which are not going to improve do not need to be repeatedly assessed every year or so.

The procedure starts with a questionnaire about medical conditions and activities of ‘daily living’. The claimant has a month to return the completed questionnaire.

The questionnaire is mostly ignored and an appointment is made for an assessment by Atos within a further month or so.

Atos conducts the Work Capabilities Assessment. It is mostly a question and answer affair with the Health Care Professional (HCP) inputting answers into a computer. There are a few physical examinations of the stand up, lift your arm above your head, touch your toes type. The HCP is often foreign and hard to understand. Foreign doctors and nurses who are not qualified to practice in UK are acceptable as HCPs.

The Work Capabilities Assessment consists of categories of activities for which points are awarded. For example there is not being able to stand or sit still for so long because of pain or discomfort. Less than 30 minutes is 9 points, less than 60 minutes is 6 points. Another example is walking within a reasonable time with the assistance of aids or a manual wheelchair. Less than 50 metres is 15 points, less than a hundred metres is 9 points, less than 200 metres is 6 points. 15 points are needed to be awarded – or continue to receive – a disbility benefit.

How can the Atos HCP decide that you’re able to walk over 200 metres without stopping due to pain or discomfort within a reasonable time? They ask you ridiculous, ‘opaque’ questions and draw ridiculous conclusions. How did you get to the test centre? You drove? Then you can walk over 200 metres without stopping due to pain or discomfort within a reasonable time. What’s your favourite television programme? Eastenders, eh? Watching Eastenders means that you can sit for 30 minutes and can even concentrate! or focus your attention! for 30 minutes. How many people just have the television on in the background?

The Decision Maker is advised of Atos’s conclusions and usually stops or refuses benefit.

The claimant has within a month to appeal. Asking for a statement of reasons for the decision extends the time to appeal to a month from receiving the statement of reasons. [28/07/13 1.40pm Looks like this has changed & you have to appeal within a month of the decision. Check for yourself.]

The claimant must appeal within a month. The claimant can ask for a paper appeal or an appeal in person.

The appeal is delayed for many months. A month or two before the appeal date the appeal ‘bundle’ of papers will be sent to the appellant. This is the Decision Maker’s legal argument and all relevant papers on which the decision was based.

The appeal is heard. Appeals are nowadays heard by a tribunal which is part of the Court Service. The tribunal is supposed to be independent and impartial and follow the rules of natural justice (procedural fairness). The Decision Maker’s position is argued by a practising solicitor or lawyer. [30/07/13 10.10pm This appears to have changed now. Often there is no Presenting Officer present. The Presenting Officer nowadays seems to be a different Decision Maker to the one that made the decision.] The claimant has the opportunity to argue against the Decision Maker’s case.

I haven’t been to an appeal for over a decade and the system has changed since. The Appeal Tribunal may tell you their decision on the day or make you wait. I have been to one appeal with such good legal argument that it was unchallenged. You need to argue law and on the basis of previous decisions.

If you win at appeal you look forward to doing it all again soon.

How it’s unfair

I’ve got a few ideas about how it’s unfair and biased against the claimant. No doubt I am also missing many.

It’s unfair because it’s intended to be unfair. The Decision Maker and the Atos Health Care Professional are not about being fair. Their whole purpose is to refuse benefits. They might pretend to be fair but they’re not.

Everybody involved except the claimant is trained, professional and experienced. There is nobody to assist or represent the claimant while he or she may be very ill and unable to prepare his or her own case.

The case is decided on the basis of law while this is not even made clear to the claimant. While claimants are advised to seek assistance from Citizens Advice Bureaus, Law Centres or Welfare Rights Advisors there is actually no help available. A claimant will be very lucky to even have the near useless help of a law student.

The Decision Maker can prefer Atos’s Health Care Professional’s opinion over that of the claimant’s GP. How on earth can that be fair?

[28/07/13 3am

The strange conclusions drawn from ‘opaque’ questions seem very unfair.

[28/07/13 12.30pm

There is a problem with the ‘opaque’ questions since they are taken to mean something other than what they actually mean i.e. they are interpreted in a certain way like a topic-specific discourse, a subset of language, a mini-language if you like (I’ll probably return to improve this when I have the correct term or phrase). Tribunal participants other than the claimant will be familiar with these alternate meaning while e.g. “can sow and knit” may be taken by the claimant only to mean that he or she can sow and knit.]

In the appeal I’m looking at both the Decision Maker and Atos’s HCP have avoided assessment of one descriptor completely. This is because my client didn’t complete the questionnaire very well. It is quite clear that this descriptor applies but it’s raised as an answer to a different question. It’s also blatantly clear in the request for appeal.]

If you have an appeal

Essential resources are the Welfare Benefit Handbook, the Decision Makers Guide and previous decisions. Use the web.

May be revised

 

I can do that. Gizza. Gizza.