Atos pay out, Smith and McVey use misleading figures, Judicial review on PIP, Atos second to Capita

Hello to all. First a big thank you to those of you who not only read my recent post but also took the trouble to comment. Let’s hope the article moves the discussion about employment and disabled people on a little.

This week it’s back to normal with a quick paragraph from me followed by the news. So here goes.

This week I had to attend a meeting about promoting the honours system and appropriately enough it was held at 10 Downing Street and as you can probably guess everyone who was invited turned up! (David and Samantha were the guests of Angela Merkel so we had the place to ourselves!) Once the meeting finished I wheeled out of No 10 and processed up Downing Street having my picture taken by lots of tourists who no doubt couldn’t put a name to my face!! As I trundled up Whitehall I became aware of a bit of a commotion behind me. I turned round to see an armed police officer running towards me gesticulating. I decided not to make a run for it and waited to see what major crime I’d committed. It seems I’d dropped my wallet in the hallway at No 10 and the officer simply wanted to return it. Sighs of relief all round! I’ve never been chased by an armed police officer before so that’s another thing I can cross off my list of must do’s! Have a good week.

News Roundup

Atos pays out to man left in pain and distress by assessment

A disabled man has won compensation from the government’s “fitness for work” contractor Atos Healthcare because of the weeks of distress, pain and fatigue he suffered after being forced to attend an inaccessible assessment centre.

David Johnson is just one of a number of disabled people who have complained to the Equality and Human Rights Commission (EHRC) about the failure of Atos to make reasonable adjustments for their assessments.

EHRC, which supported Johnson’s case, is considering what further action to take against Atos, but has been unable so far to say how many complaints it has received.

Johnson, from Pudsey, near Bradford, is now encouraging other disabled people to take action against Atos under the Equality Act.

He wants the company and the Department for Work and Pensions (DWP) to improve the accessibility of the work capability assessment (WCA), the test which determines eligibility for the new out-of-work disability benefit, employment and support allowance (ESA).

The company tried to argue that it was not bound by the Equality Act when delivering WCAs, and so did not need to make reasonable adjustments for disabled people.

But it eventually agreed to pay Johnson £2,000, plus costs, in an out-of-court settlement – although not admitting liability – two months after the EHRC agreed to represent him. Johnson was also supported by Sheffield Law Centre.

He had wanted a personal apology, and for the company to make a public apology to others who had faced similar treatment, as well as making a “prominent public commitment” to improve its “policy and practice”, but Atos refused.

Johnson, who has ME and is the former director of an electronic engineering firm, had made it clear in his ESA50 questionnaire – which every claimant has to fill in – that he would need to be able to travel “door-to-door” in a car or taxi to avoid the assessment having a “significant impact” on his health, because of “severe post exertional fatigue and pain”.

But the information about his access needs was never passed to the Atos department that arranges interviews, and so he was told to attend the assessment centre in Bradford on 9 August 2011.

Atos later admitted that ESA50 forms – which have a section asking claimants for their access needs – are “not viewed in detail” by the staff who book appointments.

The Bradford assessment centre is in a pedestrian precinct, which meant Johnson was forced to walk 60 metres to the front door, and another 60 metres back to the nearest pick-up point afterwards – and even then only because his father disregarded parking and loading restrictions to drop him off.

Atos do not give out the telephone numbers of individual assessment centres, so he feared that if he rang the company’s central call centre to ask for assistance, he might be late for his appointment.

He said he knew that “being late is usually treated [by Atos] as a failure to attend” and leads to ESA being withdrawn.

Although he managed to attend his assessment and make it home, he was left “struggling with the daily business of surviving” for at least a month afterwards, and experienced “a lot of pain, and very high fatigue levels”.

A medical report later concluded that there was “no doubt” that the impact of the events of 9 August 2011 was “significant” and that “certainly several steps could have been taken to avoid the exacerbation of symptoms”.

He was then told that he had been awarded zero points by the Atos assessor and so had been found “fit for work”.

He successfully appealed and – following what he says was a five-minute hearing by a tribunal panel last May – was placed into the support group, for those disabled people with the highest barriers to work.

Last month, just weeks after Atos agreed to pay him compensation, Johnson was sent a letter telling him that he would be assessed yet again, for the third time in five years.

In a letter to his Conservative MP, Stuart Andrew, he wrote: “How am I supposed to stand any chance of keeping my health stable, let alone managing to improve it, if the DWP are constantly harassing me (and thousands of others like me) with their revolving door approach to reassessment?

“Receiving the ESA50 without warning this morning was a sickening blow, leaving me oscillating between utter despair and extreme anger.”

Andrew has now written to DWP to “urge my colleagues there to look into your case as a matter of some urgency”.

Johnson told Disability News Service that the treatment he had received from Atos had been “unbelievably poor”.

He added: “They clearly haven’t made any effort to follow best practice guidelines on access and they don’t seem to have any real awareness of mobility issues within the organisation.

“This is an organisation that is assessing sick and disabled people. You would have thought that they should be operating with gold standard, and they are clearly clueless.”

An EHRC spokesman said: “The commission has received complaints about Atos failing to make reasonable adjustments for disabled people.

“Mr Johnson issued a claim against Atos on this basis, which we supported. The case settled with a payment to him of £2,000 before the case was heard.

“We are currently considering what further action, if any, we might take so can’t go into any further details at this time.”

An Atos spokeswoman said she could not comment on individual cases, but added: “We have a thorough complaints process for anyone who feels that our service does not meet their needs.

“We look at each case on an individual basis, will thoroughly investigate and any lessons learnt are applied to our business.”
Duncan Smith follows McVey in using misleading figures to whip up hostility

Another government minister has used misleading figures to try to whip up anger about the scale of spending on disability living allowance (DLA), in order to try to justify the coalition’s programme of cuts and reforms.

Last week, Esther McVey, the Conservative minister for disabled people, claimed in the Mail on Sunday that coalition plans to abolish working-age DLA had led to a huge increase in applications by people desperate to claim the benefit before it was replaced by the new personal independence payment (PIP).

The article – based on an interview with McVey – talked of an “extraordinary ‘closing-down sale’ effect, with rocketing claims as people rush to get their hands on unchecked ‘welfare for life’ before McVey’s axe falls on April 8”.

But the interview was based on figures, published by the government in late February, which actually show the number of working-age claimants fell by more than 1,600 between February and May 2012.

This week, McVey’s boss, the Conservative work and pensions secretary Iain Duncan Smith, repeated the claims, even though his department had been alerted to McVey’s use of the misleading figures.

In an interview with the Daily Mail, Duncan Smith talked of a scramble to “get ahead” of the tougher new PIP regime before it came into force.

He said disabled people were trying to “get in early, get ahead of it. It’s a case of ‘get your claim in early’.”

He claimed there had been sharp rises in the north-east (an increase of 2,600) and north-west (4,100) of England, both places where the roll-out of PIP began this month.

The Department for Work and Pensions (DWP) took nearly three days to reply when Disability News Service (DNS) asked for the source of the figures Duncan Smith referred to, and then only emailed a link to the DWP’s own statistical search engine, with no further information.

After DNS complained, DWP’s chief press officer eventually released a statement, which admitted that Duncan Smith had – just like McVey – been quoting the total number of people claiming DLA, rather than the number of working-age claimants.

The figures actually show that working-age claimants in the north-east fell by 500 and dropped by 3,600 in the north-west, from August 2011 to August 2012 (the period he was referring to).

The DWP spokesman said: “We use the total DLA claims because this relates to the total benefit spend, which is the figure most quoted by the media.

“As you can see, the latest statistics do show an increase in caseload of 14,000 over the quarter and 49,000 since August 2011. This is what Secretary of State [sic] was referring to.”

But because these figures refer to the overall growth in DLA claimants, they are irrelevant to the working-age population that will actually be affected by the cuts and reforms.

DWP’s figures show the number of working-age DLA claimants rose by just 550 across the entire country in the quarter from May to August 2012, and dropped by 5,650 over the year.

The disabled activist and blogger Sue Marsh said: “If the reforms are just, the government should have no need to misrepresent the facts or mislead the public.

“They fact that they do – and continue to do so, even when 100 per cent proven wrong – shows the contempt they have for sick and disabled people.”

Marsh said that public attitudes towards social security and sick and disabled people were hardening “as a direct result of this kind of distortion”.

She said: “As someone who knew little about the political process or parliamentary procedures when I started writing, I’ve been genuinely and repeatedly shocked at just how corrupt our system of government has become, how hard it is for minority voices to be heard and the willingness of media outlets to reinforce damaging claims.”
Judicial review bid will ‘shine a light on PIP injustice’

The latest legal challenge to the government’s welfare reforms will “shine a spotlight” on the “injustice” of its new disability benefit, according to one of the three activists spearheading the case.

Steven Sumpter and two other disabled campaigners have asked the courts for permission to challenge the government’s decision to tighten eligibility for personal independence payment (PIP) for people with the highest mobility needs.

Their legal challenge was announced as the government this week began its lengthy rollout of PIP, which is replacing working-age disability living allowance (DLA). New claimants in some parts of the north-west and north-east of England will be the first to experience PIP instead of DLA.

The new, tighter PIP rules were suddenly announced in December by Esther McVey, the Conservative minister for disabled people, prompting anger from campaigners who said the change had come “out of nowhere”.

All three of the disabled people taking the legal action currently claim the higher rate of the mobility component of DLA, but fear they will lose their right to claim the equivalent higher rate of PIP.

Under DLA, a person is entitled to the higher rate of the mobility component if they are “unable or virtually unable to walk”.

Claimants are usually considered to be “virtually unable to walk” if they cannot walk more than around 50 metres, but the alterations to the regulations announced by McVey in December saw this key criteria reduced from 50 to 20 metres.

Government figures made it clear that the overall package of changes announced in December would see – by 2015 – 20,000 fewer people eligible for the enhanced mobility rate than under the previous draft version of the PIP regulations, with this gap rising to 51,000 by 2018.

Law firms Public Law Solicitors and Leigh Day – representing the three disabled campaigners – argue that Iain Duncan Smith, the Conservative work and pensions secretary, failed to consult on the change to 20 metres, denying disabled people the opportunity to explain the likely impact on their independence.

The court will decide within three weeks whether to grant a judicial review. If it does give permission, the case will be heard in July.

Much of the impetus for the legal action has come from WeAreSpartacus, the online network of disabled campaigners.

The government’s figures show that 428,000 fewer people will be able to claim the PIP enhanced mobility rate by 2018 than would have been able to claim the DLA equivalent.

Sumpter can walk short distances with a stick, but otherwise uses a wheelchair. He was awarded the DLA higher mobility rate last year, and uses it to lease a Motability car, which he says restores much of his “freedom and independence”.

Although he cannot walk more than 50 metres without experiencing pain and exhaustion, he can usually walk more than 20 metres and so believes he will not qualify for the enhanced rate of the PIP mobility component when he is reassessed.

He said: “If I do not qualify for the enhanced rate of mobility then the biggest change is that I will lose my Motability car.

“That means that I will have to rely on my wheelchair and public transport for every trip to the shops, to the doctor, to the hospital, and that means that every trip will turn into an hours-long ordeal of exhaustion and pain that will leave me stuck in bed for days afterwards.

“It means that I will only go out for the essential trips and will stay isolated the rest of the time and that will affect both my physical and my mental health.”

He called on the government to abandon its introduction of PIP, but added: “If we are successful then the consultation will have to start all over again, but given the arrogance of the government I see no reason why they would pay attention to a new consultation any more than they paid attention to the one that they already did.”

He said he saw the judicial review as “a tool to give time to shine a spotlight on the injustice of PIP and bring attention to the arrogance of the government”.

Karen Ashton, from Public Law Solicitors, who is representing Sumpter, said the judicial review would not force DWP to abandon PIP.

She said: “What we are hoping to achieve with the case is either a reformulation of the regulations so that they use 50 metres as the benchmark threshold for eligibility for the enhanced mobility payments, or that DWP at least consult again before making a final decision on this issue.”

If the judicial review is successful, the court will have to decide what action to take over the new claimants who have already gone through the PIP assessment.

Ashton said: “It is difficult to predict with any certainty at this point what that action will be and how those new claimants will be affected.

“But, ultimately, if the case does result in the use of a 50 metre threshold in the new regulations, we would expect that to be applied at some point to all claimants both new and old.”

A Department for Work and Pensions spokesman said: “We had strong feedback from our consultation that the criteria was unclear, which is why we have now clarified the rules.

“Individuals who can move more than 20 metres can still receive the higher rate, if they cannot move these distances safely, reliably, repeatedly and in a reasonable time period.

“We acknowledge the action being taken. The department will follow the correct procedure and respond in due course.”
Atos looks second best to Capita as PIP assessments loom

The two companies carrying out assessments for the government’s controversial new disability benefit look set to offer contrasting experiences to disabled people who undergo the tests.

The Disability Benefits Consortium (DBC), whose members include Disability Rights UK, Inclusion London, RNIB and Transport for All, asked the two providers a series of questions about how they planned to deliver the new tests.

Atos Healthcare will provide personal independence payment (PIP) assessments in the south of England, the north of England and Scotland, with the outsourcing giant Capita delivering assessments in central England, Wales and Northern Ireland.

DBC asked Atos – which already carries out the government’s “fitness for work” tests – and Capita how they would meet 10 “pledges” relating to delivery of the PIP assessment.

One of the biggest differences, according to DBC’s report, is that Capita appears to want to offer claimants assessments in their own homes, and a choice over the date and time of their test.

Capita later clarified its position, telling Disability News Service (DNS) that it was “committed to ensuring claimants have choice regarding the location and scheduling of their assessment, where this can be done fairly and safely and within the 30-day window set by the DWP”.

Atos says it will choose dates and times of assessments itself, with claimants needing to request any changes. And it says that home visits “will only be offered to claimants who fit certain criteria, set by the DWP”, because of the extra cost.

Capita also told DBC that it would try to find assessors with expertise to match claimants’ impairments or conditions, which Atos has refused even to consider.

Capita told DNS that specialist health professionals would be involved “in the initial, paper-based assessment of all claims and, where possible and necessary, face-to-face assessments will also be conducted by a specialist matching the claimant’s impairment”.

Capita had also proposed offering audio recording of assessments to any claimant who requested one, but the Department for Work and Pensions (DWP) has now told Capita this will not be allowed, at least until it has seen further evidence from recording of fitness for work tests.

DBC called on Atos to “follow the lead of Capita and give claimants a choice of a home visit… and a choice of possible dates and times”, but also said it was “vital to monitor whether Capita’s approach is carried out effectively in practice”.

It also called on Atos to “match assessors with specific expertise to claimants with relevant conditions”, as Capita was doing, although again it said it would be vital to monitor how Capita carried this out.

Disability Wales (DW) had described DWP’s decision to ban Capita from offering recording of assessments as “yet another major blow inflicted upon disabled people in Wales by the UK government”.

It had said that anyone who has experienced a fitness for work test “will know that having the meeting audio recorded leads to significantly improved outcomes for claimants”, providing an incentive to assessors to “act professionally”, and eliminating possible disputes about what took place.

But it welcomed DWP’s concession that claimants would be allowed to make their own recording of their assessment – “if they follow [DWP] procedures” – which DW said was a “significant departure from previous policy”.

DW said it had been “cautiously pleased” that Atos had not won the contract to deliver assessments in Wales, while Capita had “demonstrated a willingness to engage with DW and other organisations to ensure that assessments are carried out as sensitively and appropriately as possible”.

In its response to the DBC report, DWP said that it was “always anticipated that elements of the claimant experience would differ between the two assessment providers and there is no intention to force consistency where this is not required”, while “having more than one assessment provider will encourage innovation and promote best practice”.

An Atos spokeswoman said: “We are committed to providing a good service to people who will need to go through the assessment process and welcome feedback from a wide range of sources.

“We are working with a number of representative groups and the Department [for Work and Pensions] to ensure the overall PIP service is as good as it can be.”

News provided by John Pring at

Author: PhilFriend

Dr Phil Friend (OBE FRSA) himself a wheelchair user, is acknowledged as the UK's foremost consultant on disability matters. A powerful and highly popular communicator, his company – Phil & Friends – has provided consultancy to many of the country's best-known companies. In addition to his professional activities, he is also a respected champion for equal opportunities and diversity in general, where his special blend of humour and direct speaking has won admirers from around the world.

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