Last week again saw me appearing before the Social Security and Child Support First Tier Tribunal representing a client who had been found fit for work by the Department for Work and Pensions, and was appealing their decision.
The case, for me, was a perfect example of the frequent illogical and ill-founded decisions of the DWP in respect of welfare benefits and therefore a timely opportunity to further highlight the issues faced by people like my client.
Charles, last week’s client, has very kindly granted me permission to write about his case. For this, I am grateful.
(NB This post does not explain ESA/Work Capability Assessments in any detail, for this please see my previous blog on that subject Work Capability Assessments: ‘Fit’ for Purpose?)
I started work on Charles’ case in August of this year when his previous representative moved to pastures new. On reading his file, it quickly became apparent that he was in a similar position to so many of my clients, despite reporting significant difficulties with his mental health, he had scored zero points at the Work Capability Assessment and found fit for work.
Having exhausted the DWP’s review process, to no avail, Charles had lodged an appeal with the Tribunals Service in June of this year. This would put his case before an independent tribunal chaired by a judge and assisted by a Doctor. He came to Greater Manchester Law Centre seeking assistance with his appeal and representation at his tribunal hearing.
Receiving the DWP’s appeal papers was eye opening. Alarm bells immediately sounded in my mind when I discovered that the ‘Health Care Professional’ who had assessed Charles’ capability for work was a physiotherapist, despite the fact that he was adamant in his application for ESA that the problems preventing him from being able to work were mental health problems, and despite the fact that an earlier decision of the Upper Tribunal expressed grave concerns about the very same issue, holding that the physiotherapist’s views in such cases are ‘of no probative value whatsoever’.
On meeting Charles for the first time, he explained to me exactly what he had explained in his application form, and had tried to explain in his assessment. He faced significant difficulties with almost all aspects of day to day activities because of his mental state. He could neither feed nor clothe himself reliably, and needed prompting to complete any sort of personal hygiene routine. He was unable to go to crowded places, and found unexpected and last minute change impossible to deal with. This was just the tip of the iceberg. Almost all of the things that I did without thinking in my own daily routine Charles could either not do, or needed significant prompting or assistance to do them. Coming to meet me at the Law Centre was an ordeal. Life, essentially, was extremely difficult to manage.
When we spoke about what had happened at the Work Capability Assessment, Charles reported that the assessor spent the vast majority of the assessment time asking about physical health problems when it was clear in his application for ESA and at the outset of the assessment that physically, he was capable of working. He told me that the assessor had actively stopped him from describing the difficulties he faced on a daily basis.
The DWP’s decision maker, in addition to the report of the Work Capability Assessment, had been provided by medical evidence from Charles’ General Practitioner, whom he sees on at least one occasion per month. This evidence supported Charles’ explanation of his difficulties in his application and that he suffered from severe anxiety and depression, for which he was taking the maximum dose of appropriate medication. He was trying to secure a course of psychotherapy only to be told that his depression and anxiety was too severe. Unfortunately, through no fault of his own, Charles had been passed from pillar to post. Still, he was awarded zero points and found fit for work. His ESA entitlement ceased from March this year.
Fast forward to November this year.
Eight long, benefit deprived months later, the day of the tribunal arrived. After a relatively short hearing, punctuated by a robust yet professional legal argument on the interpretation of the Upper Tribunal’s decision regarding the use of physiotherapists in assessing mental health problems, Charles was found to be neither fit for work nor work related activity.
The tribunal found that not only did he satisfy a number of the descriptors which rendered him unfit for work related activity, but that finding him fit for work related activity would pose a serious risk to his health.
Needless to say, Charles was relieved that his ordeal was over, and that he could focus on trying to improve his mental health.
I was irritated. Irritated that eight months and very little additional evidence later, a tribunal had decided in no uncertain terms what the DWP ought to have decided eight months earlier. Undoubtedly the process had adversely affected Charles’ mental health, having caused him unnecessary distress and anguish over a prolonged period.
Of his experience of working with Greater Manchester Law Centre Charles said:
“I was lucky enough to have the support of Sarah and the team at Greater Manchester Law Centre without whom I would have given up long ago. Even in Manchester these resources are hard to come by with many people falling through the net and ending up on the streets or worse, so please help in whatever way you can.”
The Greater Manchester Law Centre is a charity which helps people like Charles week in week out, which depends on the generosity of the Greater Manchester community and beyond.
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