Numerous miscarriages of justice have come to light in the last 15 years, but have changes to the law made fresh tragedies impossible or is there a need for a more radical and fundamental reform of the criminal justice system?
Watch Chris Summers’ report Real 56K Quicktime
Rumblings of discontent with the British criminal justice system began to grow in the 1980s. Campaigns started to spring up around individual cases. The phrase "miscarriage of justice" was crystallised around two big cases - the Birmingham Six and the Guildford Four. Both stemmed from IRA outrages against civilian targets at the height of the bombing campaign.
Police appeared to have quickly rounded up the suspects and brought them to justice. In reality the wrong men had been convicted. It was only due to the determination and investigative skills of a TV documentary team and MP Chris Mullin, himself a former journalist, that the injustice suffered by the Birmingham Six came to light.
When they were released by the Court of Appeal in 1989 it seemed there was hope for dozens of prisoners who had been pleading their innocence in vain for years. Other campaigns sprung up and gradually, over the next 11 years, many of these succeeded - including the Guildford Four, Judith Ward, the Darvell brothers, the Cardiff Three, Danny McNamee, the M25 Three and the Bridgewater Four.
Even cases from beyond the grave, such as Derek Bentley and Hussein Mattan, have been revisited and names cleared. But there are still many people in prison proclaiming their innocence.
1989: The Guildford Four are released by the Court of Appeal. The detectives at the centre of the case are later cleared of fabricating evidence.
1991: The Birmingham Six are freed. Prosecutions against officers accused of tampering with evidence are halted because of "adverse publicity".
1997: The Bridgwater Four - minus Patrick Molloy, who died in jail - are released after 17 years in prison.
2000: The M25 Three are freed by three Court of Appeal judges who say there had been a "conspiracy" to give perjured evidence.
A miscarriage of justice can result from non-disclosure of evidence by police or prosecution, fabrication of evidence, poor identification, overestimation of the evidential value of expert testimony, unreliable confessions due to police pressure or psychological instability and misdirection by a judge during trial.
Since 1984 two pieces of legislation have been introduced in an attempt to prevent further miscarriages. The Police And Criminal Evidence Act (PACE) gave detectives rigid rules on how long they could question suspects for and insisted interviews be taped to ensure there was no mistreatment or undue intimidation.
The Criminal Procedure and Investigations Act was also introduced in an attempt to make sure police or the Crown Prosecution Service (CPS) disclose to the defence everything which could be relevant to their case. However a recent review of disclosure undertaken by the Crown Prosecution Service Inspectorate found the CPIA did not have the "confidence of criminal practitioners".
Adversarial system under attack
Paddy Hill, one of the Birmingham Six, is sceptical such legislation is enough. Mr Hill, who has set up his own pressure group Miscarriages Of Justice Organisation (MOJO), told BBC News Online: "Justice is something that is not on this government's curriculum."
He said the criminal justice system needed a radical overhaul to make it "more open and accountable". Mr Hill would like to see:
The adversarial system replaced with a continental-style inquisitorial system, where the driving motive behind any police investigation is the search for the truth.
Juries forced to give their verdicts in writing, to amplify on their reasons and guard against the danger of "perverse" verdicts.
Judges and other judicial officials being elected, rather than chosen by "the establishment".
Changes in the law to ensure police officers who break the law are convicted and sent to prison.
Kevin Christian, whose brother Derek is serving a life sentence for a murder he denies committing, is a member of the pressure group Innocent. He told BBC News Online: "The biggest problem seems to be the Court of Appeal and its lack of willingness to recognise and correct errors. The Guildford Four is a prime example. Even after the Balcombe Street Gang had admitted they were responsible for the Woolwich bomb, the Court of Appeal would not even entertain the possibility that the Guildford Four were innocent.
"The adversarial system means that the criminal justice system can easily turn into an upmarket local dramatic society with the two main protagonists being the prosecuting and defence counsels, the difference being that the defence counsel may not have had time to learn his lines before the curtain goes up."
Mr Christian favours the French system of investigating magistrates or the Staatsanwalte in Germany, in which the prosecuting lawyers are involved from the outset.
"A mixture of circumstantial evidence and tenuous or contentious forensic evidence can be very tempting to a jury. Many miscarriages result, ironically, from weak prosecution cases. Where there is very little in the way of a prosecution case to dismantle, it is very difficult to mount a cogent defence case," he said.
Investigating alleged miscarriages
The Criminal Cases Review Commission was set up by the last government in an attempt to investigate alleged miscarriages of justice properly. It is an independent body responsible for investigating alleged miscarriages in England, Wales and Northern Ireland.
The commission has 14 members including chairman Sir Frederick Crawford, barrister Jill Gort, former chief constable Baden Gitt and journalist David Jessel, former presenter of Trial and Error and Rough Justice. Critics say it is under-funded, understaffed and not sufficiently independent. It currently has a backlog of 1,200 cases (about a third of all applications to date).
Chris Mullin MP, a former journalist for TV's World In Action, said: "Miscarriages of justice can occur under any system and I have no doubt they will occur in the future."
But Mr Mullin, nowadays a junior minister, told BBC News Online: "We should never be complacent. The system has improved considerably since the big miscarriages of the mid-1970s. PACE, which came in in 1983, had regulated interviews and improved the treatment of suspects and just about all interrogations are now recorded. But the most important change is that people who believe they are the victims of miscarriages of justice have somewhere to go: the CCRC."
He admitted the CCRC had a backlog and "could do with speeding up its handling of cases" but said it had a good track record. Mr Mullin said: "73% of cases which have been referred back to the Court of Appeal by the CCRC have resulted in quashed convictions."
Mr Mullin admitted the adversarial system had flaws and said: "There is a strong case for a system which finds the truth, rather than a contest between skilled adversaries. But you should realise that the continental inquisitorial system had also led to miscarriages of justice."
Police role 'exaggerated'
The Chief Constable of Kent, Sir David Phillips, is the Association of Chief Police Officers' spokesman on criminal justice and he admitted the system is not perfect.
"It's not safe. Far too many guilty people are acquitted to the danger of the public. We are too often strangled by a system of rules and interpretation, which prevents us getting to the truth," he said.
"While trials are contests, there is a high level of acquittals, which must mean either the police or the courts are getting it wrong. Very often the whole case is not heard. Juries are not able to put the whole picture together."
Sir David does not believe the adversarial system needs replacing but he would like to see changes. He said: "The defence should have to disclose their evidence so the court can take control of it. There is no reason why the defence should be able to keep evidence secret so it can be used in an ambush."
He believes there should be less of an emphasis on advocates' skills and more on the evidence. "Let the jury see the evidence. I am in favour of them seeing tapes of defendants being interviewed so they can make up their own minds," he said.
As for the police's role in miscarriages of justice, Sir David believes it has been exaggerated. "In the CCRC's annual report they said that where things had gone wrong it was rarely the police's fault. It was usually the defence or the prosecution."
When it comes to police officers who fabricate evidence to secure a conviction, he said ACPO was keener than anyone to see them prosecuted and convicted. "If people are going to tell lies about how they obtained evidence, you are going to have difficulties. Most cases of police corruption are discovered by the police and corrupt officers are one of our highest priorities to root out and prosecute," said Sir David.
Robert Brown continues to fight for justice. Ever since his release, there has still been no action taken against the police.
Robert Brown is calling for the immediate arrest of Ex DCI Jack Butler, Ex DS George Bethell and Detective Inspector Pearson for committing perjury at his trial in 1977.At his appeal, in 2002, Lord Justice Rose said “this verdict cannot be regarded as safe. This is because we could not possibly be sure that the jury, had they known what we know, would have reached the same verdict. put at its lowest, a possibility that they might have reached a quite different verdict”.At his trial, in 1977, Mr Justice Milmo stated “if members of the jury, that evidence is not proved, then each and every one of those officers is guilty of perjury” If that is the case then surely according to the judgement of the appeal court, and the summing of the trial judge, these officers have committed a serious act of perjury.
Robert Brown has compiled a dossier that proves that there was a conspiracy nine year ago by those in authority to refuse him an appeal in 1994. Robert Brown throughout his 25 years pr-empted, and collated, a document that proves beyond a shadow of a doubt, that the authorities colluded to keep Robert Brown in for a further nine years. more
Sad death of Sally Clark at 42
Kevin Nunn murder conviction challenged: new website link
Government decision to deduct prison costs from innocent victims' compensation upheld by Lords
Angela + Ian Gay acquitted at retrial 3 March 2006
Cardiff 3: four trial witnesses charged with perjury
Kent Against Injustice: new web page and contact info
Were you conned by bogus expert Gene Morrison?
Glyn Razzell: thorough article in Daily Mail as CCRC starts review
Robert Kennedy: CCRC refers murder conviction
Barri White & Keith Hyatt: revamped website features complete Rough Justice video
Inside Time - article on applying to the CCRC
2006 National Miscarriage of Justice Day meeting: DVD available
Andrew Adams: appeal successful - vows to clear cellmate
1) Never answer a question without understanding what it means. (ii)
2) Wise up on the ESA eligibility 'descriptors'. (iii)
3) From the moment you first apply for Employment & Support Allowance, consider
I. who will be best suited to accompany you to the 'medical' interview and
2. who to approach for evidence to back your case.
The person to accompany you will be your McKenzie Friend.(iv)
4) Realise that shame and embarrassment in relation to your condition may be the biggest barriers to your successful form completion. In the world of claiming ESA what was previously regarded as a 'mark of shame' often becomes a 'badge of honour'.
5) Picture yourself on a really bad day, because otherwise the inconsistency of 'it varies' answers will too easily be interpreted as, “This descriptor is insignificant to this claimant's eligibility.” Beware also of the inconsistent ordering of some of the answers in the ESA50, and recognise the relevance of minimum 24 hour working week realities to what makes your condition worse.
6) Realise that the ESA50 form content sets the scene for how you will be assessed.
7) Consider the possibility of a relevant helping professional completing the ESA50 on your behalf, but be the final arbiter on this. A relevant helping professional's authoritative input may be especially helpful if yours is an invisibile disability or mental health condition, but if they take a rushed approach to your form's completion while you may be inclined to attempt to avoid embarrassment in stating how bad your condition really is/can be, their input may well weaken your case..
8) Never attend the Work Capability Assessment 'medical' alone. This is something you must factor in when completing the ESA50.
9) Make optimum use of the 'lead time' from receiving the ESA50 application form to the deadline for form completion and return, bearing in mind that the ESA50 will be redirected to a different address than that given on the reply envelope before it reaches the Atos team who will be conducting your individual assessment.
10) Quote any documented evidence as much as possible in the body of the form, rather than relying on a covering letter and/or other attachments that are all too commonly 'lost in the post'.
11) Keep copies of all your form content and documentation. Electronic copies of your form content can make editing form content easier for repeated testing situations.
12) Check out the building accessibility of the 'Medical Examination Centre' (MEC), realising that elevator access may not be operating at the times that the adjoining jobcentre closes. (Some MECs are open on Sundays, and when jobcentre staff go home at 4:30pm, elevator access may be denied.)
13) Realise that the 'suggested route' details/advice that Atos Healthcare admin issue of how to get from your home to the MEC may be unnecessarily complicated in order for you to be intimidated out of attending.
14) Don't allow yourself to be bullied and intimidated by the inflexibility of 'we're only following orders' Atos call-centre staff. In the event of your not being able to attend the MEC as a consequence of any 'last-minute emergencies', say, arising from the weather denying your McKenzie friend access to a car ride from home to the MEC, realise that a call to the relevant Disability Benefit Centre can trump such inflexibility. Remember, without someone to attend the medical, it will be assumed not only that you have no trouble getting to appointments alone, but also that you will be a less reliable witness than someone who can corroborate your version of what happened or did not happen at the medical.
15) Consider the 'medical' as more of an observation activity with you as the one being observed from the time you enter the waiting room, rather than an exhaustive and thorough medical examination.
16) Seek out, join, or form a support group for benefit claimants. This will help make your life feel more relevant between WCAs and help to counter the isolating influences of the reassessment process.
17) Keep abreast of changes to the law as it relates to your ESA entitlement.
Testing times for Raymondo
Raymondo recently underwent his third Work Capability Assessment. When he first applied for ESA he had been awarded 0 eligibility points at the medical three months after the ESA50 form completion. That 0 eligibility points score was turned into 21 eligibility points at the tribunal that he later attended with an advocate from a local disability charity, and the tribunal panel also placed him in the Support Group, ensuring no 'back to work' sanctions and such bullying, but not exempting him from the stressful experience of being systematically retested. It took the Disability Benefits Centre's Assessments & Appeals Section of Department for Work & Pensions two months to wade through the 'sandbags' of correspondence to get to his tribunal outcome and pay the back money he was owed, and yet just six months after getting the back money, he was summonsed to re-apply for ESA, with six weeks before the deadline for receipt of the ESA50 application form. Diligent devotion to getting the form content as strongly in his favour as possible, and attending with a McKenzie Friend that he had become well-acquainted with in the intervening period helped ensure that he secured Support Group status for the second time. But his third WCA was conducted under a revised 'simplified' test that allowed fewer point scoring options toward the eligibility threshold of 15 points awarded him by the tribunal.
The newer test had been proposed by the last Labour DWP Secretary Yvette Cooper as more and more people won their tribunals in order to get what was rightfully theirs. (v) So the then DWP Secretary who is now Labour's Equalities Spokesperson decided that the law needed to be changed. (Atos and its staff seem to be above the law, but tribunal panels have to abide by it.) The ESA tribunal panel consisting of judge and doctor had awarded Raymondo 15 of his eligibility points on account of the time it takes him to execute tasks. The 'simplified' WCA has completely removed that relevant descriptor which has been a major bugbear of Raymondo's 'working life'. So how did he manage to overcome that difficulty?
“All of the above tips have helped me since I won my tribunal,” says Raymondo. “This most recent time though, there was the additional factor of the destruction of a mainstay descriptor and the potentially additionally isolating factor of stigmatisation.” But Raymondo's preparation this time around was increased.
With enhanced relationship with a legally qualified advocate and disability rights activist who he first contacted as a friend of a friend, he felt less embarrassed about ‘telling it like it is’ than he did when originally going through the form in an interview with a vocational support adviser with whom he lacked a true rapport and who was too blasé and ignorant about the nuances of ESA compared to Incapacity Benefit. Getting it out as an electronic document in his own time helped enormously for shaping the document to text boxes for copying and pasting onto the actual form. And his anticipation of the changes brought in by the revised test cued him to take a real diagnostic battery of tests with Camden Learning Disability Services before undergoing his third WCA. The report from that test helped explain and outline how, say, slow mental processing speed made him more inclined to experience ‘information overload’ and accident proneness in real world work situations. He also emphasised that as a genuine jobseeker from November 1977 till early 2009 he only acuired only 17 MONTHS total waged employment, 11 months of which had been for less than ten hours per week.
Now a member of Kilburn Unemployed Workers Group that meets 40 minutes bus ride away, Raymondo realises that while he is still very poor and has extremely limited career prospects in his 59th year, he has much to contribute to helping make the world a fairer place, and has been helped to feel more human through being a member of that group. “Those like Liz Sayce of Radar who talk of ‘integration of disabled people into the workforce’ as they smash Remploy communities with factory closures get paid for giving government-for-market-forces-by-market-forces what it wants. ‘State-subsidised’ Remploy factories are more sustainable and sustaining than transporting sweat shop produce around the globe from China where 600,000 die per year from intolerable working conditions that operate under the name of ‘competitiveness’.
“I might not get paid as much for helping people to the truth, but being a member of Kilburn Unemployment Workers Group and Social Work Action Network London activist gives me a greater sense of purpose while making new friends.”
Watch Chris Summers’ report Real 56K Quicktime
Rumblings of discontent with the British criminal justice system began to grow in the 1980s. Campaigns started to spring up around individual cases. The phrase "miscarriage of justice" was crystallised around two big cases - the Birmingham Six and the Guildford Four. Both stemmed from IRA outrages against civilian targets at the height of the bombing campaign.
Police appeared to have quickly rounded up the suspects and brought them to justice. In reality the wrong men had been convicted. It was only due to the determination and investigative skills of a TV documentary team and MP Chris Mullin, himself a former journalist, that the injustice suffered by the Birmingham Six came to light.
When they were released by the Court of Appeal in 1989 it seemed there was hope for dozens of prisoners who had been pleading their innocence in vain for years. Other campaigns sprung up and gradually, over the next 11 years, many of these succeeded - including the Guildford Four, Judith Ward, the Darvell brothers, the Cardiff Three, Danny McNamee, the M25 Three and the Bridgewater Four.
Even cases from beyond the grave, such as Derek Bentley and Hussein Mattan, have been revisited and names cleared. But there are still many people in prison proclaiming their innocence.
1989: The Guildford Four are released by the Court of Appeal. The detectives at the centre of the case are later cleared of fabricating evidence.
1991: The Birmingham Six are freed. Prosecutions against officers accused of tampering with evidence are halted because of "adverse publicity".
1997: The Bridgwater Four - minus Patrick Molloy, who died in jail - are released after 17 years in prison.
2000: The M25 Three are freed by three Court of Appeal judges who say there had been a "conspiracy" to give perjured evidence.
A miscarriage of justice can result from non-disclosure of evidence by police or prosecution, fabrication of evidence, poor identification, overestimation of the evidential value of expert testimony, unreliable confessions due to police pressure or psychological instability and misdirection by a judge during trial.
Since 1984 two pieces of legislation have been introduced in an attempt to prevent further miscarriages. The Police And Criminal Evidence Act (PACE) gave detectives rigid rules on how long they could question suspects for and insisted interviews be taped to ensure there was no mistreatment or undue intimidation.
The Criminal Procedure and Investigations Act was also introduced in an attempt to make sure police or the Crown Prosecution Service (CPS) disclose to the defence everything which could be relevant to their case. However a recent review of disclosure undertaken by the Crown Prosecution Service Inspectorate found the CPIA did not have the "confidence of criminal practitioners".
Adversarial system under attack
Paddy Hill, one of the Birmingham Six, is sceptical such legislation is enough. Mr Hill, who has set up his own pressure group Miscarriages Of Justice Organisation (MOJO), told BBC News Online: "Justice is something that is not on this government's curriculum."
He said the criminal justice system needed a radical overhaul to make it "more open and accountable". Mr Hill would like to see:
The adversarial system replaced with a continental-style inquisitorial system, where the driving motive behind any police investigation is the search for the truth.
Juries forced to give their verdicts in writing, to amplify on their reasons and guard against the danger of "perverse" verdicts.
Judges and other judicial officials being elected, rather than chosen by "the establishment".
Changes in the law to ensure police officers who break the law are convicted and sent to prison.
Kevin Christian, whose brother Derek is serving a life sentence for a murder he denies committing, is a member of the pressure group Innocent. He told BBC News Online: "The biggest problem seems to be the Court of Appeal and its lack of willingness to recognise and correct errors. The Guildford Four is a prime example. Even after the Balcombe Street Gang had admitted they were responsible for the Woolwich bomb, the Court of Appeal would not even entertain the possibility that the Guildford Four were innocent.
"The adversarial system means that the criminal justice system can easily turn into an upmarket local dramatic society with the two main protagonists being the prosecuting and defence counsels, the difference being that the defence counsel may not have had time to learn his lines before the curtain goes up."
Mr Christian favours the French system of investigating magistrates or the Staatsanwalte in Germany, in which the prosecuting lawyers are involved from the outset.
"A mixture of circumstantial evidence and tenuous or contentious forensic evidence can be very tempting to a jury. Many miscarriages result, ironically, from weak prosecution cases. Where there is very little in the way of a prosecution case to dismantle, it is very difficult to mount a cogent defence case," he said.
Investigating alleged miscarriages
The Criminal Cases Review Commission was set up by the last government in an attempt to investigate alleged miscarriages of justice properly. It is an independent body responsible for investigating alleged miscarriages in England, Wales and Northern Ireland.
The commission has 14 members including chairman Sir Frederick Crawford, barrister Jill Gort, former chief constable Baden Gitt and journalist David Jessel, former presenter of Trial and Error and Rough Justice. Critics say it is under-funded, understaffed and not sufficiently independent. It currently has a backlog of 1,200 cases (about a third of all applications to date).
Chris Mullin MP, a former journalist for TV's World In Action, said: "Miscarriages of justice can occur under any system and I have no doubt they will occur in the future."
But Mr Mullin, nowadays a junior minister, told BBC News Online: "We should never be complacent. The system has improved considerably since the big miscarriages of the mid-1970s. PACE, which came in in 1983, had regulated interviews and improved the treatment of suspects and just about all interrogations are now recorded. But the most important change is that people who believe they are the victims of miscarriages of justice have somewhere to go: the CCRC."
He admitted the CCRC had a backlog and "could do with speeding up its handling of cases" but said it had a good track record. Mr Mullin said: "73% of cases which have been referred back to the Court of Appeal by the CCRC have resulted in quashed convictions."
Mr Mullin admitted the adversarial system had flaws and said: "There is a strong case for a system which finds the truth, rather than a contest between skilled adversaries. But you should realise that the continental inquisitorial system had also led to miscarriages of justice."
Police role 'exaggerated'
The Chief Constable of Kent, Sir David Phillips, is the Association of Chief Police Officers' spokesman on criminal justice and he admitted the system is not perfect.
"It's not safe. Far too many guilty people are acquitted to the danger of the public. We are too often strangled by a system of rules and interpretation, which prevents us getting to the truth," he said.
"While trials are contests, there is a high level of acquittals, which must mean either the police or the courts are getting it wrong. Very often the whole case is not heard. Juries are not able to put the whole picture together."
Sir David does not believe the adversarial system needs replacing but he would like to see changes. He said: "The defence should have to disclose their evidence so the court can take control of it. There is no reason why the defence should be able to keep evidence secret so it can be used in an ambush."
He believes there should be less of an emphasis on advocates' skills and more on the evidence. "Let the jury see the evidence. I am in favour of them seeing tapes of defendants being interviewed so they can make up their own minds," he said.
As for the police's role in miscarriages of justice, Sir David believes it has been exaggerated. "In the CCRC's annual report they said that where things had gone wrong it was rarely the police's fault. It was usually the defence or the prosecution."
When it comes to police officers who fabricate evidence to secure a conviction, he said ACPO was keener than anyone to see them prosecuted and convicted. "If people are going to tell lies about how they obtained evidence, you are going to have difficulties. Most cases of police corruption are discovered by the police and corrupt officers are one of our highest priorities to root out and prosecute," said Sir David.
Robert Brown continues to fight for justice. Ever since his release, there has still been no action taken against the police.
Robert Brown is calling for the immediate arrest of Ex DCI Jack Butler, Ex DS George Bethell and Detective Inspector Pearson for committing perjury at his trial in 1977.At his appeal, in 2002, Lord Justice Rose said “this verdict cannot be regarded as safe. This is because we could not possibly be sure that the jury, had they known what we know, would have reached the same verdict. put at its lowest, a possibility that they might have reached a quite different verdict”.At his trial, in 1977, Mr Justice Milmo stated “if members of the jury, that evidence is not proved, then each and every one of those officers is guilty of perjury” If that is the case then surely according to the judgement of the appeal court, and the summing of the trial judge, these officers have committed a serious act of perjury.
Robert Brown has compiled a dossier that proves that there was a conspiracy nine year ago by those in authority to refuse him an appeal in 1994. Robert Brown throughout his 25 years pr-empted, and collated, a document that proves beyond a shadow of a doubt, that the authorities colluded to keep Robert Brown in for a further nine years. more
Sad death of Sally Clark at 42
Kevin Nunn murder conviction challenged: new website link
Government decision to deduct prison costs from innocent victims' compensation upheld by Lords
Angela + Ian Gay acquitted at retrial 3 March 2006
Cardiff 3: four trial witnesses charged with perjury
Kent Against Injustice: new web page and contact info
Were you conned by bogus expert Gene Morrison?
Glyn Razzell: thorough article in Daily Mail as CCRC starts review
Robert Kennedy: CCRC refers murder conviction
Barri White & Keith Hyatt: revamped website features complete Rough Justice video
Inside Time - article on applying to the CCRC
2006 National Miscarriage of Justice Day meeting: DVD available
Andrew Adams: appeal successful - vows to clear cellmate
Work Capability Assessment
Raymondo,
member of Kilburn Unemployed Worker's Group and Social Work Action Network
London, shares with us his Work Capability Assessment Survival Tips...
The Work Capability Assessment is the test by which people claiming the out of waged work benefit Employment and Support Allowance are gauged as qualifying for Employment and Support Allowance or 'fit for work'.
“The Work Capability Assessment (WCA) has three stages. Firstly, the Limited Capability for Work Test determines whether or not you remain on Employment and Support Allowance (ESA), secondly, the Limited Capability for Work Related Activity Test determines whether you join the ‘support group’ of claimants or the ‘work-related activity group’ and thirdly, the Work Focused Health Related Assessment provides a report that can be used in any work-focused interviews that you may be required to attend later on.” (i)
The Work Capability Assessment is the test by which people claiming the out of waged work benefit Employment and Support Allowance are gauged as qualifying for Employment and Support Allowance or 'fit for work'.
“The Work Capability Assessment (WCA) has three stages. Firstly, the Limited Capability for Work Test determines whether or not you remain on Employment and Support Allowance (ESA), secondly, the Limited Capability for Work Related Activity Test determines whether you join the ‘support group’ of claimants or the ‘work-related activity group’ and thirdly, the Work Focused Health Related Assessment provides a report that can be used in any work-focused interviews that you may be required to attend later on.” (i)
Atos
Origin are the company profitting from carrying out the much criticised Work
Capability Assessments
WCA
Survival Tips
(Some of these tips are repetitions or further defining of others. This is to add emphasis.)
(Some of these tips are repetitions or further defining of others. This is to add emphasis.)
1) Never answer a question without understanding what it means. (ii)
2) Wise up on the ESA eligibility 'descriptors'. (iii)
3) From the moment you first apply for Employment & Support Allowance, consider
I. who will be best suited to accompany you to the 'medical' interview and
2. who to approach for evidence to back your case.
The person to accompany you will be your McKenzie Friend.(iv)
4) Realise that shame and embarrassment in relation to your condition may be the biggest barriers to your successful form completion. In the world of claiming ESA what was previously regarded as a 'mark of shame' often becomes a 'badge of honour'.
5) Picture yourself on a really bad day, because otherwise the inconsistency of 'it varies' answers will too easily be interpreted as, “This descriptor is insignificant to this claimant's eligibility.” Beware also of the inconsistent ordering of some of the answers in the ESA50, and recognise the relevance of minimum 24 hour working week realities to what makes your condition worse.
6) Realise that the ESA50 form content sets the scene for how you will be assessed.
7) Consider the possibility of a relevant helping professional completing the ESA50 on your behalf, but be the final arbiter on this. A relevant helping professional's authoritative input may be especially helpful if yours is an invisibile disability or mental health condition, but if they take a rushed approach to your form's completion while you may be inclined to attempt to avoid embarrassment in stating how bad your condition really is/can be, their input may well weaken your case..
8) Never attend the Work Capability Assessment 'medical' alone. This is something you must factor in when completing the ESA50.
9) Make optimum use of the 'lead time' from receiving the ESA50 application form to the deadline for form completion and return, bearing in mind that the ESA50 will be redirected to a different address than that given on the reply envelope before it reaches the Atos team who will be conducting your individual assessment.
10) Quote any documented evidence as much as possible in the body of the form, rather than relying on a covering letter and/or other attachments that are all too commonly 'lost in the post'.
11) Keep copies of all your form content and documentation. Electronic copies of your form content can make editing form content easier for repeated testing situations.
12) Check out the building accessibility of the 'Medical Examination Centre' (MEC), realising that elevator access may not be operating at the times that the adjoining jobcentre closes. (Some MECs are open on Sundays, and when jobcentre staff go home at 4:30pm, elevator access may be denied.)
13) Realise that the 'suggested route' details/advice that Atos Healthcare admin issue of how to get from your home to the MEC may be unnecessarily complicated in order for you to be intimidated out of attending.
14) Don't allow yourself to be bullied and intimidated by the inflexibility of 'we're only following orders' Atos call-centre staff. In the event of your not being able to attend the MEC as a consequence of any 'last-minute emergencies', say, arising from the weather denying your McKenzie friend access to a car ride from home to the MEC, realise that a call to the relevant Disability Benefit Centre can trump such inflexibility. Remember, without someone to attend the medical, it will be assumed not only that you have no trouble getting to appointments alone, but also that you will be a less reliable witness than someone who can corroborate your version of what happened or did not happen at the medical.
15) Consider the 'medical' as more of an observation activity with you as the one being observed from the time you enter the waiting room, rather than an exhaustive and thorough medical examination.
16) Seek out, join, or form a support group for benefit claimants. This will help make your life feel more relevant between WCAs and help to counter the isolating influences of the reassessment process.
17) Keep abreast of changes to the law as it relates to your ESA entitlement.
Testing times for Raymondo
Raymondo recently underwent his third Work Capability Assessment. When he first applied for ESA he had been awarded 0 eligibility points at the medical three months after the ESA50 form completion. That 0 eligibility points score was turned into 21 eligibility points at the tribunal that he later attended with an advocate from a local disability charity, and the tribunal panel also placed him in the Support Group, ensuring no 'back to work' sanctions and such bullying, but not exempting him from the stressful experience of being systematically retested. It took the Disability Benefits Centre's Assessments & Appeals Section of Department for Work & Pensions two months to wade through the 'sandbags' of correspondence to get to his tribunal outcome and pay the back money he was owed, and yet just six months after getting the back money, he was summonsed to re-apply for ESA, with six weeks before the deadline for receipt of the ESA50 application form. Diligent devotion to getting the form content as strongly in his favour as possible, and attending with a McKenzie Friend that he had become well-acquainted with in the intervening period helped ensure that he secured Support Group status for the second time. But his third WCA was conducted under a revised 'simplified' test that allowed fewer point scoring options toward the eligibility threshold of 15 points awarded him by the tribunal.
The newer test had been proposed by the last Labour DWP Secretary Yvette Cooper as more and more people won their tribunals in order to get what was rightfully theirs. (v) So the then DWP Secretary who is now Labour's Equalities Spokesperson decided that the law needed to be changed. (Atos and its staff seem to be above the law, but tribunal panels have to abide by it.) The ESA tribunal panel consisting of judge and doctor had awarded Raymondo 15 of his eligibility points on account of the time it takes him to execute tasks. The 'simplified' WCA has completely removed that relevant descriptor which has been a major bugbear of Raymondo's 'working life'. So how did he manage to overcome that difficulty?
“All of the above tips have helped me since I won my tribunal,” says Raymondo. “This most recent time though, there was the additional factor of the destruction of a mainstay descriptor and the potentially additionally isolating factor of stigmatisation.” But Raymondo's preparation this time around was increased.
With enhanced relationship with a legally qualified advocate and disability rights activist who he first contacted as a friend of a friend, he felt less embarrassed about ‘telling it like it is’ than he did when originally going through the form in an interview with a vocational support adviser with whom he lacked a true rapport and who was too blasé and ignorant about the nuances of ESA compared to Incapacity Benefit. Getting it out as an electronic document in his own time helped enormously for shaping the document to text boxes for copying and pasting onto the actual form. And his anticipation of the changes brought in by the revised test cued him to take a real diagnostic battery of tests with Camden Learning Disability Services before undergoing his third WCA. The report from that test helped explain and outline how, say, slow mental processing speed made him more inclined to experience ‘information overload’ and accident proneness in real world work situations. He also emphasised that as a genuine jobseeker from November 1977 till early 2009 he only acuired only 17 MONTHS total waged employment, 11 months of which had been for less than ten hours per week.
Now a member of Kilburn Unemployed Workers Group that meets 40 minutes bus ride away, Raymondo realises that while he is still very poor and has extremely limited career prospects in his 59th year, he has much to contribute to helping make the world a fairer place, and has been helped to feel more human through being a member of that group. “Those like Liz Sayce of Radar who talk of ‘integration of disabled people into the workforce’ as they smash Remploy communities with factory closures get paid for giving government-for-market-forces-by-market-forces what it wants. ‘State-subsidised’ Remploy factories are more sustainable and sustaining than transporting sweat shop produce around the globe from China where 600,000 die per year from intolerable working conditions that operate under the name of ‘competitiveness’.
“I might not get paid as much for helping people to the truth, but being a member of Kilburn Unemployment Workers Group and Social Work Action Network London activist gives me a greater sense of purpose while making new friends.”
NOTES AND
SOURCES
(i)
http://www.tameside.gov.uk/esa/wca
(ii) Dorothy Leeds (1998) Secrets of
Successful Interviews. The fact that the vast majority of ESA claimants who win
their tribunals do so with advocacy support indicates that those without
advocacy are not sufficiently resourced with the relevant information and
interpretative guidance.
http://www.publications.parliament.uk/pa/cm200910/cmselect/cmworpen/313/31307.htm
http://www.publications.parliament.uk/pa/cm200910/cmselect/cmworpen/313/31307.htm
(iii) Beyond a Yahoo! Search for “ESA
descriptor points”, you might consider subscribing to the services provided by
Benefits & Work Publishing. A year's individual person subscription to
Benefits & Work Publishing costs currently less than £20 per year and
allows you unlimited access to their guides written by legal professionals into
how the ESA descriptors might be interpreted.
http://www.benefitsandwork.co.uk/join-us
http://www.benefitsandwork.co.uk/join-us
(iv)
http://en.wikipedia.org/wiki/Mckenzie_friend
(v)
http://benefits.tcell.org.uk/forums/even-harsher-new-esa-medical-approved-benefits-work-13th-april-2010
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Social
Work Action Network (SWAN)
c/o Iain Ferguson
School of Social Science
University of the West of Scotland
Paisley
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School of Social Science
University of the West of Scotland
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Work Capability Assessment
The Work
Capability Assessment (WCA) has three stages. Firstly,the Limited Capability for Work Test determines whether or not you
remain on Employment and Support Allowance (ESA), secondly, the Limited Capability for Work Related
Activity Test
determines whether you join the ‘support group’ of claimants or the
‘work-related activity group’ and thirdly, the Work Focused Health Related Assessment provides a report that can be
used in any work-focused interviews that you may be required to attend later on.
This test
is the gateway into entitlement to Employment and Support Allowance. Each
activity is broken down into a number of descriptors. Descriptors carry 0, 6,
9, or 15 points which relate to the degree of difficulty a person has in
carrying out each task.
A person
has to score at least 15 points to be found to have limited capability for
work.
A person
can only score against one descriptor under each activity even if more than one
descriptor applies to them. They should count the highest scoring descriptor
which applies to them in each activity.
1. Mobilising unaided by another
person with or without a walking stick, manual wheelchair or other aid if such
aid can reasonable be used.
|
a)
|
Cannot
either
|
15
|
|
b)
|
Cannot
mount or descend two steps unaided by another person even with the support of
a handrail.
|
9
|
|
c)
|
Cannot
either
|
9
|
|
d)
|
Cannot
either
|
6
|
|
e)
|
None of
the above
|
0
|
|
a)
|
Cannot
move between one seated position and another seated position located next to
one another without receiving physical assistance from another person
|
15
|
|
b)
|
Cannot,
for the majority of the time, remain at a work station, either:
for
more than 30 minutes, before needing to move away in order to avoid
significant discomfort or exhaustion.
|
9
|
|
c)
|
Cannot,
for the majority of the time, remain at a work station, either:
for
more than an hour before needing to move away in order to avoid significant
discomfort or exhaustion.
|
6
|
|
d)
|
None of
the above apply
|
0
|
|
a)
|
Cannot
raise either arm as if to put something in the top pocket of a coat or
jacket.
|
15
|
|
b)
|
Cannot
raise either arm to top of head as if to put on a hat.
|
9
|
|
c)
|
Cannot
raise either arm above head height as if to reach for something.
|
6
|
|
d)
|
None of
the above apply
|
0
|
|
a)
|
Cannot
pick up and move a 0.5 litre carton full of liquid.
|
15
|
|
b)
|
Cannot
pick up and move a one litre carton full of liquid.
|
9
|
|
c)
|
Cannot
transfer a light but bulky object such as an empty cardboard box.
|
6
|
|
d)
|
None of
the above apply
|
0
|
|
a)
|
Cannot
either:
|
15
|
|
b)
|
Cannot
pick up a £1 coin or equivalent with either hand.
|
15
|
|
c)
|
Cannot
use a pen or pencil to make a meaningful mark.
|
9
|
|
d)
|
Cannot
use a suitable keyboard or mouse.
|
9
|
|
e)
|
None of
the above apply
|
0
|
6. Making self understood through
speaking, writing, typing or other means normally used; unaided by another
person
|
a)
|
Cannot
convey a simple message, such as the presence of a hazard.
|
15
|
|
b)
|
Has
significant difficulty conveying a simple message to strangers.
|
15
|
|
c)
|
Has
some difficulty conveying a simple message to strangers.
|
6
|
|
d)
|
None of
the above apply.
|
0
|
7. Understanding communication by
both verbal means (such as hearing or lip reading) and non-verbal means (such
as reading 16 point print) using any aid if reasonably used; unaided by another
person
|
a)
|
Cannot
understand a simple message due to sensory impairment, such as the location
of a fire escape.
|
15
|
|
b)
|
Has
significant difficulty understanding a simple message from a stranger due to
sensory impairment.
|
15
|
|
c)
|
Has
some difficulty understanding a simple message from a stranger due to sensory
impairment.
|
6
|
|
d)
|
None of
the above apply
|
0
|
|
a)
|
Unable
to navigate around familiar surroundings, without being accompanied by
another person, due to sensory impairment.
|
15
|
|
b)
|
Cannot
safely complete a potentially hazardous task such as crossing the road,
without being accompanied by another person, due to sensory impairment.
|
15
|
|
c)
|
Unable
to navigate around unfamiliar surroundings, without being accompanied by
another person, due to sensory impairment.
|
9
|
|
d)
|
None of
the above apply
|
0
|
9. Absence or loss of control
leading to extensive evacuation of the bowel and/ or bladder, despite the
presence of any aids or adaptations normally used.
|
a)
|
At
least once a month experiences
|
15
|
|
b)
|
At risk
of loss of control leading to extensive evacuation of the bowel and/or voiding
of the bladder, sufficient to require cleaning and a change in clothing, if
not able to reach a toilet quickly.
|
6
|
|
c)
|
None of
the above apply
|
0
|
|
a)
|
At
least once a week, has an involuntary episode of lost or altered
consciousness resulting in significantly disrupted awareness or
concentration.
|
15
|
|
b)
|
At
least once a month, has an involuntary episode of lost or altered
consciousness resulting in significantly disrupted awareness or
concentration.
|
6
|
|
c)
|
None of
the above apply
|
0
|
|
a)
|
Cannot
learn how to complete a simple task, such as setting an alarm clock.
|
15
|
|
b)
|
Cannot
learn anything beyond a simple task, such as setting an alarm clock.
|
9
|
|
c)
|
Cannot
learn anything beyond a moderately complex task, such as the steps involved
in operating a washing machine to clean clothes.
|
6
|
|
d)
|
None of
the above apply
|
0
|
|
a)
|
Reduced
awareness of everyday hazards leads to a significant risk of:
such
that they require supervision for the majority of the time to maintain
safety.
|
15
|
|
b)
|
Reduced
awareness of everyday hazards leads to a significant risk of:
Such
that they frequently require supervision to maintain safety.
|
9
|
|
c)
|
Reduced
awareness of everyday hazards leads to a significant risk of:
such
that they occasionally require supervision to maintain safety.
|
6
|
|
d)
|
None of
the above apply
|
0
|
13. Initiating and completing
personal action (which means planning, organisation, problem solving,
prioritising or switching tasks)
|
a)
|
Cannot,
due to impaired mental function, reliably initiate or complete at least 2
sequential personal actions.
|
15
|
|
b)
|
Cannot,
due to impaired mental function, reliably initiate or complete at least 2
personal actions for the majority of the time.
|
9
|
|
c)
|
Frequently
cannot, due to impaired mental function, reliably initiate or complete at
least 2 personal actions.
|
6
|
|
d)
|
None of
the above apply
|
0
|
|
a)
|
Cannot
cope with any change to the extent that day to day life cannot be managed.
|
15
|
|
b)
|
Cannot
cope with minor planned change (such as pre-arranged change to the routine
time scheduled for a lunch break), to the extent that overall, day to day
life is made significantly more difficult.
|
9
|
|
c)
|
Cannot
cope with minor unplanned change (such as the timing of an appointment on the
day it is due to occur), to the extent that overall, day to day life is made
significantly more difficult.
|
6
|
|
d)
|
None of
the above apply
|
0
|
|
a)
|
Cannot
get to any specified place with which the claimant is familiar.
|
15
|
|
b)
|
Is
unable to get to a specified place with which the claimant is familiar,
without being accompanied by another person.
|
9
|
|
c)
|
Is
unable to get to a specified place with which the claimant is unfamiliar
without being accompanied by another person.
|
6
|
|
d)
|
None of
the above apply
|
0
|
|
a)
|
Engagement
in social contact is always precluded due to difficulty relating to others or
significant distress experienced by the individual.
|
15
|
|
b)
|
Engagement
in social contact with someone unfamiliar to the claimant is always precluded
due to difficulty relating to others or significant distress experienced by
the individual.
|
9
|
|
c)
|
Engagement
in social contact with someone unfamiliar to the claimant is precluded for
the majority of the time due to difficulty relating to others or significant
distress experienced by the individual.
|
6
|
|
d)
|
None of
the above apply
|
0
|
|
a)
|
Has, on
a daily basis, uncontrollable episodes of aggressive or disinhibited
behaviour that would be unreasonable in any workplace.
|
15
|
|
b)
|
Frequently
has uncontrollable episodes of aggressive or disinhibited behaviour that
would be unreasonable in any workplace.
|
15
|
|
c)
|
Occasionally
has uncontrollable episodes of aggressive or disinhibited behaviour that
would be unreasonable in any workplace.
|
9
|
|
d)
|
None of
the above apply
|
0
|
Treated as having limited capability for work
No-one is
exempt from the medical assessment for ESA. All claimants have to undergo at
least one element of it. But there are a few circumstances where a person can
be treated as having limited capability for work. They are where the person is
:
- terminally ill
- receiving chemotherapy (unless it is via oral medication)
- under notice as a carrier of, or had contact with, an infectious disease
- pregnant and there would be a serious risk to health of the claimant or her baby if she did not refrain from work
- pregnant, entitled to Maternity Allowance and within the Maternity Allowance period
- pregnant or have recently given birth, not entitled to Statutory Maternity Pay or Maternity Allowance, from 6 weeks before the birth to 2 weeks after baby is born
- a hospital inpatient
- receiving treatment by way of haemodialysis, plasmapheresis, radiotherapy or total parenteral nutrition, in any week when the person receives treatment or has a day of recovery from treatment. In the first week of any such treatment, claimant is only treated as having limited capability for work if they have:
- 2 days of treatment; or
- 2 days of recovery; or
- 1 day of treatment and one day of recovery
- The days do not have to be consecutive
- People likely to start chemotherapy within 6 months. These claimants will also be treated as being unfit for work related activity and will be in the support group
- People attending residential rehabilitation for drug or alcohol problems
- People who satisfy either of the “conveying food or drink to the mouth” or “chewing or swallowing” descriptors in the limited capability for work related activity test
FIT FOR PURPOSE?
A GUIDE TO COMPLETING THE ESA 50
This ESA50 form, forms part of the Work Capability
Assessment, which assesses whether someone has limited capability for work and
whether they can remain on Employment and Support Allowance. It does not
include all the descriptors used to score points on the test, so this guide
aims to assist in completing the form by including what is missing and
some hints and tips to help. It has been written as
a guide for workers such as support workers, social workers or other
professionals to refer to
when completing the form with clients, but will
also be useful if you are
completing the form for yourself.
My Office
Swansea
Mr B would not be capabl
e of completing this
form without help, I act
as his support worker
from the Great Support Agency.
Do not include clients no if they do
not answer the phone to unknown
numbers
Mr B does not open/respond
to his post or remember
appointments due to his mental
health problems/learning
difficulties/substance
misuse problems.
Please could you contact Ms
Responsible instead on
0000000.
It is important to enter the details of the best
person to contact to ensure that your client
makes it to the medical appointment. If th
ey do not attend the medical they will be
found to be fit for work and payment of Em
ployment and Support Allowance will stop.
To change this decision you will need to
convince the DWP that your client had
reasonable good cause for not attending.
If this is not accepted the de
cision is appealable, but there
is no entitlement to be paid
the assessment rate or any rate of Employme
nt and Support Allowance whilst waiting for
the appeal to be heard. Job Seekers Allowa
nce, with the need to
be actively seeking
work, will need to be claime
d instead (unless there is any
entitlement to Income Support
as a lone parent or carer or can
be included on a partner’s claim).
I would not be able to attend a medical
assessment without my su
pport worker due to
my mental health/learning disability etc.
I would be unable to attend Grove House for a
medical because I am housebound due to my
severe agoraphobia/phys
ical health problem
etc.
I would need a welsh interpreter.
Explain any other problems getting to or
attending Grove House in town for a medical
due to either physical and mental health
problems.
Include dates that you
would not be able to
attend with your client or
anyone else planning to
accompany them.
It is especially important not to let your client
try
to attend alone if you believe they should be
awarded points under the descriptors for going
out unaccompanied or co
ping with social
situations.
It is especially important to include deta
ils of any of the following that apply:
•
Receiving or recovering from
intravenous chemotherapy
•
Are terminally ill (death can reasonably
be expected in
the next 6 months)
•
Have a notifiable disease
•
Suffer from a life threat
ening uncontrolled disease
•
Are a hospitable inpatien
t or recovering from tr
eatment as an inpatient
•
Receiving or recovering from renal di
alysis, plasmapheresis, radiotherapy,
weekly paranteral nutrition
•
Pregnant or have recently given birth an
d in the period from 6 weeks
before the birth to 2 we
eks after baby is born
•
Pregnant and there would be a serious ri
sk to your or the baby’s health if
you were found ca
pable of work
•
There would be a serious risk to your me
ntal or physical health or that of
others if you were fo
und capable of work
This is important because in the above
circumstances you will be ‘treated as’
having limited capability for work and do no
t have to score 15 points on the test.
Use this opportunity to highlight that yo
ur client can be treated as having
limited capability for work without havi
ng to attend a medical, provide any
proof available
.
However if your client is asked
to attend a medical, it is
important that they still attend.
Dr Most Helpful in the Practice
Use the details of the GP that knows most about
your client and is likely
to be the most supportive
of their claim.
Mr V Supportive
You can include your details
as well as being the
person completing the fo
rm for your client.
Include details of anyone you knows how health
problems affect your client
, they do not have to
be a health professional,
could be support worker,
home care worker, speech
therapist etc. Include
details of more than one person if relevant.
Include details of all clinics and hospital care,
including attending asthma clinic, CDAT,
attending hospital for re
gular blood tests etc.
from treatment as a hosp
ital inpatient means you
can be treated as having limited capability for
work, so it is importan
t to include details.
Still include details of forthcoming admissions
even if your client has
not yet been given a date.
based test very similar to the former
Personal Capability Assessment used to
assess whether someone is incapable of
work.
For the Work Capability Assessment your po
ints must total 15 made up from any
of the numbered sections under both phys
ical and mental health descriptors.
Only the highest points under each se
ction count—you do not get awarded
points for problems sitting, standing an
d getting up from a chair—only the
highest counts.
If when completing the form, your clie
nts points do not total 15, go back and
think again about all their heal
th problems and try again.
If substance misuse issues form
a large part of your clients
problems it is important to state this.
The only issue here could be if your client could
pass the
test without this being take
n into account and they are
not currently in treatment and they would not be
able to
cope if in the future having
to undergo treatment as part
of the conditions to contin
ue to receive payment of
benefit. This is part of
the new Welfare Reform Act,
which at the time of writing,
is not yet being acted on.
Please seek advice if you are unsure.
IMPORTANT:
Do not just answer the questions
on the form—as you will see in this
guide many of the descriptors or
questions relating to them are not
included at all.
Use the boxes to explain how the
issues in the actual descriptors
affect your client.
Cannot walk more than:
50 metres = 15 points
100 metres = 9 points
200 metres = 6 points
Explain the distance your c
lient can walk without
repeatedly stopping or severe discomfort.
Severe discomfort includes pain, breathlessness and
fatigue.
Explain where the pain is and
type of pain i.e. stabbing,
throbbing etc and why you have to stop.
If you can only swing throu
gh crutches and cannot bear
weight on your legs, you ca
nnot walk and should explain
this here.
Cannot walk up or down
2 steps with hand-
rail = 15 points
Explain why this cannot
be managed. If your
client could manage this once and then would
be in bed for a week explain this.
Is it reasonable for you to attempt this?
Can this be done safely, reliably and repeat-
edly?
Support Group: If walking is limited to
not more than 30 metres, include details
of this—it is one of the
Support Group descriptors.
The Support Group is the term given to th
ose consider the most severely disabled
by their condition. Being placed in
the Support Group equals more money and
less conditions, your client will not have
to take part in work related activity.
needing to sit down = 15 points
Cannot stand more than 30 mins before
needing to sit down = 6 points
If the higher scoring time
applies, explain this.
Use an example from real li
fe if possible, such as
difficulties standing while the kettle boils.
It is not asking whether you can stand still, you
can move around, it is when standing becomes
too much and you have to sit down.
Cannot sit more than 10
mins before having to
move from chair = 15 points
Cannot sit more than 30
mins before having to
move from chair = 6 points
NB: Not a comfy chair—answer in relation to a
waiting room type of chair with a straight back
and no arms
If your client cannot stand at all they
will meet the 15 points needed to pass
the test on the descriptor for being
unable to stand for more than 10 mins.
must be able to do it
safely, reliably and repeatedly.
E.g. due to the lymphoedema following
treatment for breast cancer I have been told
not to reach above my head for anything.
Explain if it can on
ly be managed by
experiencing severe shoulder or elbow pain.
This is not about carrying—it is about whether
you can pick up and mo
ve something at table
or waist level
Cannot pick up and move
a 0.5 litre/1 pint
carton of milk with eith
er hand = 15 points &
support group
Cannot pick up and move
a 1 litre/2 pint
carton of milk with ei
ther hand = 9 points
Remember the cartons of
milk we usually buy
from the supermarket are 2 litre. A can of beer
will tend to be about 0.5 litre.
Include details or how lack of co-ordination,
limited movement, pain, tremors etc affect the
ability to do this.
object requiring use of both hands = 6 points
Cannot turn star headed tap with either
hand = 15 points & support group
Cannot pick up £1 coin with either hand = 15
points & support group
Cannot physically use pen or pencil = 9 points
Cannot physically use conventional keyboard
or mouse = 9 points
Cannot do up/undo small buttons = 9 points
Cannot turn star headed tap with one hand =
6 points
Cannot pick up £1 coin with one hand = 6
points
Cannot pour from open 0.5 litre carton = 6
points
This involves the co-ordination of both arms,
so explain co-ordination or problems such as
tremors which affect this.
This involves the use of both hands, arms and
shoulders so will include people who have
problems on just one side, such as weakness
on one side following a stroke.
A range of different hand, fing
er, wrist and grip abilities are
needed for these descriptors, so
your client may be able to
grip a coin but not have the
range of movements to manage
small buttons.
Explain which apply and why.
Remember this does not just ap
ply to conditions such as
arthritis but also include detail
s of how conditions that cause
tremors or only affect one hand affect your client.
Speech cannot be understood by strangers = 15
points
Strangers have great difficulty understanding
speech = 9 points
Strangers have some difficulty understanding
speech = 6 points
A good example would be
how you could not
understand your client
when first working with
them and explain the degree of difficulty.
This is not problems understanding your speech due
to language or accent bu
t due to various problems
such as brain damage, str
oke, hearing, mouth or
throat disease/damage, spee
ch disorders such as a
stammer etc.
Also include the affects of
fatigue, breathlessness or
panic on the ability to speak.
Cannot hear at all = 15 points
Cannot hear sufficiently clearly someone
talking in a loud voice in quiet room = 15
points
Cannot hear sufficiently clearly someone
talking in a normal voice in quiet room = 9
points
Cannot hear sufficiently clearly someone
talking in a loud voice in a busy street = 6
points
hearing aids, such as
unable to use outdoors in a
busy street due to pain
caused by traffic noise and so are not normally
worn
in these surrounding.
Remember the ability to
hear someone in a quiet
room is not included in the
tick boxes, so explain the
difficulties.
Explain if someone can understand by lip reading
but cannot hear.
You should be able to hear
sufficiently clearly to
follow a conversation, no
t just pick up odd words.
Cannot see at all = 15 points
50% or greater reduction of visual fields = 15
points
Cannot see to recognise
friend 5m away = 9
points
Cannot see to recognise friend 15m away = 6
points
Cannot see to read
16
point print from 20cm
away = 15 points
25% to 50% reduction of
visual fields = 6 points
These descriptors are looking at what usable
sight your client has in good light conditions
whilst wearing any glasses or contact lenses.
Explain if registered blind
or partially sighted and
include any copies of opticians or consultants
reports.
Covers a range of sight
problems which is not
made clear on the form—including reading,
distance and peripheral sight problems.
You need to be able to
actually recognise the
friends features not that
it is them because they
always wear that hat.
points & support group
At least once a month loses full control of
bowels = 15 points
At least once a week loses full control of
bladder = 15 points & support group
Occasionally loses full control of bowels = 9
points
At least once a month loses full control of
bladder = 6 points
Risks losing full control of bowels/bladder if not
able to reach toilet quickly = 6 points
The legislation refers to losing
control so cannot control full
evacuation of the bowel or
full voiding of the bladder—
however it does not explain who is going to check!
Include details of losing contro
l of bladder or bowels when
having an epileptic
fit or panic attack.
Minor stress incontinence such
as laughing following
childbirth which means full contro
l is not lost doesn’t count.
Unable to affix, remove or empty catheter
bag, urine collection device or stoma without
someone’s physical assi
stance = 15 points &
support group
Unable to affix, remove or empty catheter
bag, urine collection device or stoma without
causing leakage of contents = 15 points &
support group
Additional support group descriptors:
At least once a week loses full control of bowels
At least once a week fails to
control full evacuation of
bowels or full voiding of
bladder due to a severe diso
rder of mood or behaviour
complete a simple task
at all = 15 points &
support group
Needs to be shown more than
once how to carry out a simple
task and would not be able
to complete successfully the next day without
another demonstration
= 15 points & support
group
Needs to be shown how to carry out a simple
task and would not be able to complete
successfully the next day withou
t verbal prompts = 9 points
Needs to be shown how to carry out a moderat
ely complex task and wo
uld not be able to
complete successfully the next day
without verbal prompts = 9 points
Needs verbal instructions how to carry out
a simple task and woul
d not be able to
complete successfully in the following
week without verbal prompts = 6 points
Think which box to tick—usually is not
going to score points.
Explain what you mean by sometimes—
is that some simple tasks can be learnt
but not all the ones listed.
NB: the descriptors in
the legislation have
using a washing machine as a
moderately complex task NOT a simple
task
The guidance in the Medical Services handbook
says this descriptor relates to learning
difficulties or
brain injury.
But also consider any condition that affects the
ability to learn, concentrate and remember.
Depression can cause problems with memory and
concentration making learning how to do a new
task, e.g. working a new mobile difficult.
Support Group: Fails to learn or understand ho
w or successfully complete
a simple task at all
or would not be able to without another demons
tration the next day du
e to a severe disorder
of mood or behaviour
leading to daily instances or near
avoidance of injury to self/others/
damage to property so that daily life
cannot be successfully managed = 15
points
Instances the majority of the time = 9
points
Frequent instances = 6 points
Ticking usually is not going to score points.
If it varies explain why i.e. when in manic phase
of manic
depression your client
has no concept of risk.
The medical services handbook
refers to reduced awareness
caused by learning difficul
ties, conditions affecting
concentration (including effects
of medication), brain damage,
neurological conditions and dement
ia. Do not consider this list
exhaustive.
Give details of anything that ca
uses reduced awareness or puts
your client at any risk, including leaving the oven
on due to
lapses in concentration.
On a daily basis forgets or loses
concentration to such an extent that day
to day life cannot be successfully
managed without verbal prompting = 15
points
For the majority of the time forgets or
loses concentration to such an extent that
day to day life cannot be successfully
managed without verbal prompting = 9
points
Frequently forgets or loses concentration
to such an extent that
day to day life can
only be successfully managed with
pre-planning, e.g. making a daily written
list of all tasks forming part of daily life =
6 points
Again think which box to tick, but the box for
usually is not going to score any points.
Daily scores higher points th
an the majority of the
time and again more than frequently.
Caselaw (this comes from
decisions made by the
Upper Tribunal stage of appeals) does not yet
exist to define how often these words actually
mean, so even if it is on
ly an occasional issue
provide details.
NB: Your client may lack insight of risk!
refers to lapses in
memory or concentration du
e to fatigue, anxiety,
depression, delusions, halluc
inations, memory loss, brain
injury or neurological impairment. This is
guidance, not
an exhaustive list, give deta
ils of anything that effects
your clients memory or concentration.
Use examples from your clie
nts life i.e. due to my
depression I forget to
wash until mum nags me.
Unable to successfully complete any everyday
task = 15 points
Takes more than twice as long as someone
without mental health problems to successfully
complete a familiar everyday task = 15 points
Takes between 1 ½ times and twice as long = 9
points
Takes 1 ½ times as long = 6 points
Consider how long it will take yo
ur client to complete a task due
to their mental health, not problems
caused by physical disability.
The medical services handbook re
fers to people
with obsessive
compulsive disorder, le
arning disability or brain injury and to
problems caused by panic attacks,
hallucinations or delusions. It
states this descriptor does not refe
r to motivation to commence a
task, however I would also consid
er how conditions such as
depression affect motivati
on to finish a task.
Cannot, due to cognitive impairment or severe
disorder of mood or behaviour, initiate or sustain
any personal action = 15 points & support group
Cannot, due to cognitive impairment or severe
disorder of mood or behaviour, initiate or sustain
any personal action without needing verbal
prompting the majority of the time = 9 points
Cannot, due to cognitive impairment or severe
disorder of mood or behaviour, initiate or sustain
any personal action without needing frequent
verbal prompting = 6 points
Support Group:
Cannot initiate or sustain personal
action without needing daily
prompting or fails to do so due to
severe disorder of mood or
behaviour
all the descriptors relating to prompting
are worded that ‘verbal prompting
given by another person in the person’s
presence’ - so prompting by phone or
text doesn't count. Remember that
your client doesn’t have someone there
does not mean they don't need it.
Cannot cope with very minor expected
changes in routine to the extent that
overall daily life cann
ot be managed = 15
points
Cannot cope with expected changes in
routine to the extent that overall daily life
is made significantly more difficult = 9
points
Cannot cope with minor unexpected
changes in routine to the extent that
overall daily life is ma
de significantly more
difficult = 6 points
The medical services handboo
k refers to depression
resulting in apathy, fatigue or anxiety and
problems
caused by schizophrenia.
Use examples from your client
s life of what they don’t do
or give up after starting if
they do not have verbal
prompting or only do because of the prompting they
receive.
If your client has no-one to
provide prompting, explain
this and emphasise that it is
still required but is not
available.
This is not about disliking change, but the
inability to cope with it, resulting in reactions
such as not being able to
do anything for the rest
of the day, anxiety or panic attack, angry
outbursts, collapsing in a heap crying etc.
The medical services ha
ndbook states that it
would be unlikely to apply to anyone who has
managed to attend their
medical alone, so make
sure your client is aware of this.
Use examples such as how your client has coped
when you have had to ch
ange the time of an
appointment.
place = 15 points
Unable to get to a specified familiar
place without being accompanied
every time = 15 points
Unable to get to a specified familiar
place without being accompanied the
majority of the time = 9 points
Frequently unable to get to a specified
familiar place without being
accompanied = 6 points
This is a harder test than for
the low mobility component of
disability living allowance which looks a coping
alone in
unfamiliar places, this is ab
out coping getting to a familiar
place.
The medical services handbook stat
es this refers to true panic
disorder or severe agoraphobia
not lesser degrees of anxiety.
However lesser general degrees of
anxiety could result in
frequently not being able to go
to even a familiar place, so
explain how your client is af
fected and what symptoms of
anxiety and panic they experience.
Normal activities, e.g. new places/social
contact, are precluded because of
overwhelming fear or anxiety = 15
points
Normal activities are precluded
because of overwhelming fear or
anxiety the majority of the time = 9
points
Normal activities are frequently
precluded because of overwhelming
fear or anxiety = 6 points
ursts of aggressive,
disinhibited or bizarre behaviour which is
either sufficient to cause disruption to others
on a daily basis or although less frequently is
so severe that no reasonable person would
be expected to tolerate = 15 points
Has a completely dispro
portionate reaction
to minor events or criticism that has an
extreme violent outburst leading to
threatening behaviour or violence = 15 points
Has unpredictable outb
ursts of aggressive,
disinhibited or bizarre behaviour which is
sufficient in severity and frequency to cause
disruption for the majo
rity of the time = 9
points
Has a strongly disproportionate reaction to
minor events or criticism to the extent that
daily life cannot be managed when it occurs
= 9 points
Has unpredictable outb
ursts of aggressive,
disinhibited or bizarre behaviour which is
sufficient to cause frequent disruption = 6
points
Frequently has a moderately
disproportionate reacti
on to minor events or
criticism to the extent
that daily life cannot
be managed when it
occurs = 6 points
The wording of the descriptors in this section
are mind boggling.
Just explain how your clients behaviour can
affect other people, including details of
instances of physical or
verbal aggression and
any behaviour viewed by others as strange or
unusual.
Explain how other peoples behaviour,
however minor or unintentional, affects your
client’s ability to cope
and get on with their
daily life. Shouting, crying, storming off is a
disproportionate reaction.
The medical services handbook st
ates that if your client is
able to attend their medical al
one and do not show signs of
anxiety at the medical they will
not meet this descriptor, so
make sure your client is aware
of this and accompany them if
possible.
Give details of how your client
reacted when they first met
you, whether they have not been
able to attend or cope at
any events you have arranged, how socially isolated
they are,
how anxiety affects them etc.
extent that has difficulty relating to others
for brief periods (a few hours) or causes
daily distress to others = 15 points
Unaware of impact of own behaviour to
extent that has difficulty relating to others
for longer periods (a day or two) or causes
distress to others majority of time = 9
points
Unaware of impact of own behaviour to
extent that has difficulty relating to others
for prolonged periods (a week) or
frequently causes distress to others = 6
points
Everyday misinterprets verbal or
non-verbal communicat
ion to extent of
causing self significant distress = 15 points &
support group
Majority of time misinterprets verbal or
non-verbal communicat
ion to extent of
causing self significant distress = 9 points
Frequently misinterprets verbal or non-
verbal communication to extent of caus-
ing self significant distress = 6 points
The medical services handbook says
this descriptor refers to people on the
autistic spectrum, psychotic illness and
brain injury.
It also states that a
lack of ability to
maintain personal hygiene can cause
the claimant to be totally unaccept-
able to other people—you are likely to
have noticed if
this applies.
Also consider the
affects of paranoia,
anxiety, impaired brain functioning
due to insomnia, any thought disorders
or impairments in cognitive function
can result in misinterpreting other and
result in your client becoming
distressed.
Explain any incidents when your client
has caused distress or been in distress
due to the unintentional comments of
others.
tors referred to under the different
sections of the form, the following supp
ort component descriptors also apply:
Maintaining personal hygiene:
Cannot clean torso (excluding back
) without physical assistance
Cannot clean torso (excluding back),
without repeatedly stopping,
breathlessness or severe discomfort
Cannot clean torso (excluding back
), without regular prompting
Due to severe disorder of mood or be
haviour fails to clean torso (excluding
back), without physical assistance or regular
prompting
Eating and drinking:
Cannot chew or swallow food
Cannot convey food or drink to mo
uth without physical assistance
Cannot convey food or drink to mouth,
or chew or swallow food, without
repeatedly stopping, breathle
ssness or severe discomfort
Cannot convey food or drink to mouth,
or chew or swallow food, without
regular prompting
Due to severe disorder of mood or beha
viour fails to convey food or drink to
mouth without physical assistance or regular
prompting
Due to severe disorder of mood or be
haviour fails to chew or swallow food
or chew or swallow food,
without regular prompting
Communication:
Unable to do any of speak, write, type
to standard understood by strangers
or sign language to level 3 British sign language
standard
Can do none of above due to severe
disorder of mood or behaviour
Cannot make self understood to others
due to disassociation from reality
due to severe disorder of mood or behaviour
Use this section to explain if any
of the above apply to your client.
Also use this section to expl
ain if there would be a seri
ous risk to your client’s
mental or physical health or
that of others if they we
re found not to have limited
capability for work and/or limited ca
pability for work related activity.
An example of how this can apply is that
your client is undergoing a treatment
programme for substance abuse and will not be able
to continue this treatment
or concentrate fully on this treatment if
they were having
to comply with the
conditions of being actively seeking wo
rk for Jobseekers Allowance or working
and that not continuing with
treatment will cause a seri
ous risk to their health.
Provide evidence of this if possible.
your client will be
found fit for work
if you cannot convince the DWP that
you have reasonable good cause for not
completing and returning the form.
This decision is appealable, but there
is no entitlement to be paid the
assessment rate or any rate of Empl
oyment and Support Allowance whilst
waiting for the appeal to be heard. Job Seekers Allo
wance, with the need to
be activity seeking work, will need
to be claimed instead (unless any
entitlement to Income Support as a lone parent or
carer).
If the form is going to be
returned late, ring the DW
P in advance to agree an
extension of the time li
mit to return the form.
The date the form should be returned
by is shown on the letter accompanying
the form.
posted by Patrick at 4:06 PM
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