The Fitness for work ESA assessment has been confirmed as discriminatory to those with mental health illnesses.
Today, the Work Capability Assessment was upheld at the Court of Appeal as discriminatory to those with mental health problems. Mental health claimants on Employment Support Allowance benefit, a sickness benefit for those out of work, are expected to provide evidence of their condition which can be complicated by the nature of their illness. The ruling stands from May this year that the fitness for work test may hinder these claimants as they could have problems asking for and finding evidence, providing it or understanding the assessment process itself.
Due to mental health difficulties which hamper the process from filling out the form for the benefit, through to problems with people being unable to describe their condition because of shame, stigma or lack of insight, the assessor may not get a full picture of the disability or their ability to work and claims could be rejected on this limited view according to the court ruling. The process of completing the questionnaire and undergoing the interviews were mentioned as causing those with mental health problems disproportionate stress when compared with claimants suffering from other disabilities.
Across the UK, mental health sufferers and campaigners are celebrating this success. Those who have gone through the Work Capability Assessment under Employment Support Allowance, testing their fitness for work have had their feelings of the unfair process confirmed in law.
Charlotte Walker, 39 was diagnosed with bipolar affective disorder twenty years ago, where moods swing from extremes of mania to severe depression. She had eight symptom free years but in July 2010, her mental health worsened because of a pressurised managerial role. Describing the mania, Charlotte said: “I was seeing pseudo hallucinations with centipedes, worms, ladders, brightly coloured beads and kaleidoscopic fragments, I wasn’t sleeping. There were snatches of music in my head and the same phrase looping over and over. I couldn’t think of ways to stop it and felt that I would probably have to kill myself.”
Charlotte went to seven back-to-work meetings before accepting her employer’s decision in April 2012 that she was unable to return, so she left her post. Within three months of her psychiatrist, GP and occupational health concluding she was too ill for work, Charlotte attended a Work Capability Assessment accompanied by her partner, after applying for Employment Support Allowance and was found fit for work, scoring no points.
The face to face Work Capability Assessment carried out by Atos, the company employed by the Department for Work and Pensions, measures physical and mental health conditions affecting a person’s ability to complete daily tasks, such as dressing themselves and cooking. Atos log criteria on a computer during assessment and the Department for Work and Pensions makes decisions with this information. The process was designed to look at an individual’s functional ability, looking at what he or she can do rather than what he or she cannot do. The higher the points scored, the more limited the person was in capability for work. The intention was this should provide a focussed assessment looking at the unique needs of the individual. Fifteen points are needed to remain on Employment Support Allowance and people scoring fewer points are deemed fit to work and cannot claim the benefit, which is where Charlotte found herself.
She said: “During the assessment, they didn’t understand my health and kept asking me about a typical day when I don’t have a typical day. I took a lot documents but they didn’t want to see them. They wouldn’t let us take notes and accused us of being aggressive for wanting to know the full name and qualification of the person assessing me. I was crying all the time.” Charlotte felt “there was no way she could win” as her condition varied on a daily basis.
A DWP spokesperson wasn’t able to comment on individual cases but said: “Employment and Support Allowance assesses someone’s capacity for work and looks at what a person can do because we know conditions affect people in different ways.
“Since 2010 we have improved the Work Capability Assessment. As a result the percentage of people getting long term unconditional support has more than doubled in two years, everyone has the right to appeal if they disagree with the outcome.”
Charlotte appealed and after a year, a tribunal ruled in her favour. She then stopped her Employment Support Allowance as she couldn’t go through more assessments.
Jenny Townsend, 37, suffered post-natal depression after the birth of her second child. She is also diagnosed with back pain, sciatica, anxiety and endometriosis. In August 2010, she felt suicidal, lacked motivation and didn’t bathe much. During maternity leave, she was made redundant. Meanwhile, Jenny and her husband were worried that her son had brain damage. Her GP prescribed antidepressants and she started to claim Employment Support Allowance. After her Work Capability Assessment, she was deemed fit for work and she appealed with assistance from a charity.
She said: “I was shocked when I had my assessment, it was like an interrogation. They never looked at me when they asked questions and were serious and cold. They asked how I’d got there and asked if I had walked from the bus stop, that information was used against me. I was astounded at the report that I got when I appealed. It said I was able to communicate, was clean, dressed well, tidy and clear speaking.
“They didn’t address my illness as they were looking for someone who could walk and talk, therefore they could work.”
Jenny came off Employment Support Allowance despite still suffering from depression. She had a second assessment but her contributory ESA had ended so she completely cancelled the claim as she didn’t want to go through the assessment again.
Services have seen an impact on people going through assessments. Vocation Matters in Lambeth provides vocational support for people with mental health problems. They have had to turn people away because of demand. Shaun Williams, the manager, said they had to attend work capability assessments, which is outside their normal casework. Mr Williams foresees further problems when people will be affected in 2015 as benefit changes are rolled out across the country. He said: “It makes people feel bad and they question, do I really feel these things? It screws people’s belief in themselves and people are railroaded through the system.”
The original May ruling said the Department for Work and Pensions must do more to ensure evidence about a person’s illness is collected and taken into account and adjustments must be made to the process, as the current Work Capability Assessment puts some groups at a substantial disadvantage.
Jayne Linney, 51, has long-term diagnoses of fibromyalgia, Sjorgens syndrome, cervical spondyltitus, spinal cord damage, nerve related incontinence, depression and migraines. She built a thirty-year career in community work, adult education and counselling but said: “My health took it away from me.” Her claim for Employment Support Allowance began in May 2011 after severe work stress nearly led to her being sectioned. Jayne described her experiences of Atos assessing her three times for Employment Support Allowance, saying: “It’s unwelcoming, it’s an inhuman process, like a sheep or cow going to cattle market, you’re not a person. “You’re guilty and have to prove you’re ill. The assessment takes no notice of your consultants or GP. You know the person knows nothing about your condition, they could be a physio.”
An Atos spokesperson said: “We do not make decisions on individuals’ entitlement to benefit: we carry out Work Capability Assessments in line with policy and guidelines laid down by the government.
“All our doctors, nurses and physiotherapists are registered with their professional body and have at least three years post registration experience.”
Jayne fought an online campaign to record her assessment but finds repeated assessments draining. With new legislation affecting her housing benefit alongside the assessments she said: “It’s never ending. You’re never free from it, that’s the worst part. “I don’t know how or if I will cope. I’ve got a cupboard full of drugs and Oramorph. I’m aware that suicide is an option that is always around the corner. Sometimes you look at what’s going to happen, it might be the best way out.
“When you can’t participate in the world, what is the point?”
In a joint statement Mind, the National Autistic Society and Rethink Mental Illness said:
“The judges in the original ruling independently confirmed what our members and supporters have been saying for years – the system is unfair for some of the most vulnerable people in our society and is failing the very people it is meant to be supporting.
“In light of today’s ruling it would be irresponsible for the DWP to carry on using these flawed assessments as they are.”
The final judgement is expected next year unless the Department for Work and Pensions wishes to appeal the decision through the Supreme Court.