Page 1

Burden of Proof

The role of medical evidence in the

benefits system

May 2017

Burden of Proof

Citizens Advice Scotland 2017

www.cas.org.uk

Contents

Executive summary

1

About the Citizens Advice service in Scotland

8

Introduction

9

The current system

11

Policy context

15

Methodology

24

Findings

29

Conclusions

78

Policy Implications

81

Appendix 1

83

Appendix 2

90

Appendix 3

98

Appendix 4

103

CAS Policy Series: 2017/18.01

Burden of Proof

01

Executive Summary

Burden of Proof

2

Medical evidence and benefits

Our ‘Burden of Proof’ report explores the role that medical

evidence plays in assessing ill health and disability benefits,

from the perspective of Citizens Advice Bureaux clients, advisers

and some of the professionals involved.

The report is based on evidence gathered by

Citizens Advice Scotland during 2016 and 2017

exploring the use of medical evidence to assess ill

health and disability benefits.

It includes findings from an analysis of existing

qualitative and quantitative data held by the

Citizens Advice service in Scotland and, in addition,

data gathered via a survey of Citizens Advice

Bureaux (CAB) advisers, an online mapping exercise,

and a survey of GPs and other health professionals.

Eighteen Citizens Advice Bureaux from across

Scotland participated in the project by undertaking

surveys in their local areas, and gathering

longitudinal case histories and documentary

evidence.

The findings reveal a complex picture, but suggest

that in many cases, not enough information is

available at initial claim stage, or at Mandatory

Reconsideration stage, to make fully informed and

accurate decisions.

The case analysis showed a pattern in which

clients received few points at initial claim stage

and are disallowed the benefit, then requested a

reconsideration of the decision, at which point the

decision remained unchanged, and then appealed

the decision and were awarded the benefit in many

cases.

Advice and Appeals statistics from the

Scottish CAB Service

Employment and Support Allowance (ESA) is

the most common single issue that Scottish

citizens advice bureaux provide advice on, with

Personal Independence Payment (PIP) Daily Living

component the second most common.

Following general advice regarding benefit

entitlement and the claiming process, the most

common issues advised upon in relation to these

benefits are reconsideration and appeals, which

together make up over one fifth of all advice

regarding ESA and PIP.

Advice need in relation to disability benefits has

tripled in the last three years, and has increased by

six percentage points as a proportion of all benefits

advice. Data from the first six months of 2016/17

suggests that ESA issues are also on the rise again,

with CAB advising on over 19,000 issues during

this six month period (3,600 more issues than

were advised upon during the same period of the

previous year).

During 2015/16, CAB in Scotland supported clients

to complete 2,731 appeal forms (SSCS1 forms) to

appeal against a decision made by the DWP. Of

the 2,295 cases heard at Tribunal (not including

those which were adjourned), 59% had the decision

changed, and a further 4% had the decision

partially changed, compared to 38% where the

decision remained the same.

Analysis of advice codes shows that 77% of appeals

advice and representation is in relation to ill health

and disability benefits.

Burden of Proof

03

FINDINGS BY STAGE:

Initial claim stage

Clients rarely gather further medical evidence at in-

itial claim stage. This is likely to be due to a number

of factors:

• The DWP advise claimants not to gather addi-

tional evidence at this stage;

• GP practices sometimes refuse to provide sup-

porting medical evidence direct to claimants,

or may charge fees which can act as a financial

barrier for claimants;

• The one month timescale within which to re-

turn the self-assessment form can be too tight

a timescale to gather additional evidence.

Respondents to the CAB adviser survey indicated

that it is ‘difficult’ or ‘very difficult’ for claimants to

obtain supporting evidence from GPs at initial claim

stage.

The survey results suggest that GPs and other

health professionals spend a significant proportion

of their time providing evidence to the DWP or as-

sessment provider at the initial claim stage, filling in

ESA113 or PIP forms.

CAB advisers, however, presented a different pic-

ture. When asked “what further evidence does Atos

request from healthcare professionals, in addition

to the PIP2 and consultation,” 69% of respondents

said Atos ‘rarely’ or ‘never’ seeks additional evi-

dence.

Assessment forms and face-to-face

assessments

Responses to the CAB adviser survey, as well as

case evidence from bureaux, suggests that the

application process is currently difficult to navigate

for many claimants.

The manner of healthcare professionals during as-

sessments is an issue for bureau clients, which may

affect their ability to express themselves during the

consultation and could impinge upon the quality of

information gathered.

Regarding the accuracy of the healthcare profes-

sional’s report, 59% of CAB adviser survey re-

spondents said that clients ‘rarely’ agreed that the

healthcare professional’s report accurately reflected

the discussion that took place.

Some comments made in response to the GP sur-

vey also raised concerns regarding the assessment

process.

Appraisal of evidence at initial claim

stage

The CAB adviser survey results showed that almost

half (48%) of survey respondents said that, in their

experience, DWP decision makers ‘rarely’ or ‘never’

make decisions regarding PIP claims based on all

the available evidence.

Some respondents to the GP and health profession-

als’ survey also raised concerns around the apprais-

al of evidence at initial claim stage.

Mandatory Reconsideration

Many clients experience barriers when obtaining

evidence at Mandatory reconsideration stage, in-

cluding tight timescales, physical and mental health

conditions, as well as financial barriers.

Respondents to the CAB adviser survey raised con-

cerns about there being no proper reconsideration

of the original decision, and decision maker bias.

Appeals

It is much more common for supporting medical

evidence to be provided at appeal stage, and for

advisers and representatives to be involved in gath-

ering this evidence.

Appellants can, however, experience barriers at

appeal stage too. The case studies showed evi-

dence of GPs refusing to provide evidence because

they have a policy to only provide this to the DWP.

In fact, it is possible for the claimant to go through

the whole claiming and appeal process without ever

having had medical evidence considered as part of

their claim. For example, if the DWP/Atos did not

request it at initial claim stage or Mandatory Re-

consideration stage, and the GP has a policy of not

providing evidence directly to the claimant.

Burden of Proof

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Impact on clients

Receiving an inaccurate decision when first

assessed has been shown, in some cases, to have

detrimental financial and health impacts on CAB

clients.

• Sixteen of the clients represented in the 45 case

studies were without benefit entitlement prior

to having the decision changed on appeal. This

meant they had to manage on less despite

incurring the same costs related to their health

condition or disability, such as having to travel

by taxi.

• This and previous CAS research1 has found that

clients can experience a period of acute income

deprivation due to benefits not being payable

pending a Mandatory Reconsideration decision.

• The analysis of the case studies showed some

evidence of the impact of the assessment and

appeals process on clients’ mental and physical

health. In two cases, clients mentioned suicidal

thoughts.

Information available to clients

Limited information is available to clients regarding

what support they can expect from health

professionals in relation to benefit claims.

• The results from the online mapping exercise

showed that at least 25 (31%) of the 81 GP

practices for which data was gathered had

no information on their website in relation to

medical evidence, while 64 GP practices (79%)

provided information about certification of

fitness for work.

• Very few practices provided a list of fees

charged for providing letters, and they tended

not to detail whether these referred to letters

related to benefit claims.

“Our research has shown that accuracy of decisions

could be improved by more evidence being gathered

at an earlier stage of the claim. This could also include

taking better account of evidence provided through

the individual’s self-assessment, and the evidence

provided by friends, family and carers who see how an

individual’s condition affects their ability to carry out

everyday activities.”

Full report, ‘Burden of Proof’, Citizens Advice Scotland, May 2017

1 Citizens Advice Scotland, Living at the Sharp End: CAB clients in crisis, July 2016. Available from: www.cas.org.uk/publications/living-

sharp-end

Burden of Proof

5

Conclusions

The research has found that – while the system works for the

majority of claimants - improvements could be made to how

incapacity and disability benefits are assessed, and the role that

medical evidence plays.

Different Government departments and public

sector services have different responsibilities in

relation to assessment of ill health and disability

benefits, which are not always clearly aligned. For

example, DWP decision makers and assessment

providers have an interest in gathering as much

evidence as possible at an early stage so that they

can get the decision right first time.

GPs are primarily concerned with the health of

their patients, and the resources at their disposal.

They experience demands from the DWP, patients,

advice and advocacy organisations to provide

details of patients’ conditions and how these

conditions impact on their everyday lives. GPs,

however, may not have frequent contact with

the patients in question, and do not always feel

qualified to make a judgement regarding how

conditions are experienced by the individual.

These responsibilities and interests are equally valid

and important, but make for a system in which

the claimant can receive mixed messages, and

means that there is not always the same degree of

evidence available at the initial claim stage as there

is at the appeal stage.

If the decision maker has inadequate evidence

to make an accurate decision, and the decision

is appealed, the onus and financial burden of

gathering this medical evidence then transfers to

the claimant.

Opportunities for change

There are a number of upcoming opportunities

to improve and refine the way in which medical

evidence is gathered and treated within the benefits

system, including:

• The UK Government’s Work and Health agenda

represents an opportunity to revisit the way in

which Work Capability Assessments are carried

out, and to improve data sharing between the

NHS and the DWP

• The new digital platform for Universal Credit

may present opportunities for sharing

documentation such as Fit Notes in a more

timely and straightforward manner

• The UK Government’s consideration of the

recently published Second Independent Review

of Personal Independence Payment presents

an opportunity to rethink the way evidence is

gathered and assessed

• The devolution of disability benefits to Scotland

presents an important opportunity to design a

disability benefits system that considers new

ways of assessing eligibility for the new Scottish

benefits.

Solutions to the issues raised in this report are not

straightforward, and can only be reached with

careful consideration and joint working between

each relevant government department and agency

involved in the process.

Citizens Advice Scotland sees the

impacts of decision making and

the appeals process on CAB clients,

and although we do not have all

the answers, we hope that we can

be part of an ongoing conversation

around improvements that benefit

the DWP, GPs, the NHS, HM Courts

and Tribunals Service, and most

importantly, those in need of

benefits.

Burden of Proof

06

Full report

Burden of Proof

Citizens Advice Scotland 2017

8

www.cas.org.uk

Acknowledgements

Citizens Advice Scotland (CAS) would like to acknowledge all the time and effort

provided by Citizens Advice Bureau staff and volunteers that went into the

writing of this report.

Particular thanks to the following bureaux who participated in the research

project: Airdrie CAB, Citizens Advice and Rights Fife, Central Borders CAB,

Clackmannanshire CAB, Dumfries and Galloway Citizens Advice, Dalkeith CAB,

Glasgow Drumchapel CAB, East and Central Sutherland CAB, East Ayrshire CAB,

East Kilbride CAB, Grangemouth CAB, Inverness CAB, Motherwell and Wishaw

CAB, Nairn CAB, Glasgow Parkhead CAB, Peebles CAB, Rutherglen and

Cambuslang CAB and South West Aberdeenshire CAB.

Citizens Advice Scotland would also like to thank all the GPs, practice staff and

other health professionals who took the time to fill in surveys, and the funding

provided by Scottish Government that allowed bureaux to participate in the

research.

About the Citizens Advice service in Scotland

The Citizens Advice service in Scotland is the largest independent advice service

in the country. The service is made up of: the national umbrella organisation,

Citizens Advice Scotland; 61 Citizens Advice Bureaux; the Citizens Advice

Consumer Service, and the Extra Help Unit. Our service has a footprint across

every community in Scotland.

In total, more than 300,000 people receive advice on over one million issues

each year, with our self-help website receiving over four million unique page

views in Scotland alone helping people to address their own issues and queries.

Almost 1 in 6 people in Scotland have sought advice from the service in the last

three years, with 96% of consumers agreeing that Citizens Advice Bureaux are an

important community asset.

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Introduction

Deciding eligibility for ill health and disability benefits requires carrying out an

assessment of somebody's needs or capacity. This involves gathering evidence

through an individual's self-assessment of their own needs, through functional

and needs-based assessments carried out by independent assessment providers,

and through the gathering of medical evidence from health professionals which

provides details of the individual’s condition. The extent to which the system

relies on the latter two types of evidence depends on the degree to which the

individual (and their friends, family and advocates) is capable of, and trusted to,

provide an accurate account of how their health condition or disability affects

their everyday lives.

Relying on assessment by independent providers, and evidence gathered from

health professionals, however, has its drawbacks. Firstly, it is difficult for an

assessor to gain a full picture of how an individual’s condition affects their daily

lives in the brief consultation they have with a claimant. In order for there to be

consistency in how these consultations are carried out, there must be a uniform

schedule of questions, the consequence of which is that the interaction can

seem impersonal from the point of view of the claimant, and at times they will

be asked questions that are not relevant to them or their condition. To rely on

reports from GPs and other health professionals also has limitations, however,

because health professionals do not necessarily know the details of how a

patient’s condition affects their day-to-day activities, or their capacity to work.

Furthermore, involving health professionals in assessment of eligibility can put a

strain on the therapeutic relationship a doctor has with his/her patient.

This is the dilemma of benefits assessment, and is an ongoing focus of debate

amongst policy makers, disability rights campaigners, advice organisations and

parliamentarians. The system currently in place for assessing eligibility for

incapacity benefits and disability benefits works for the majority of claims.

However, evidence from citizens advice bureaux (CAB) in Scotland has shown

that there are design flaws and administrative errors within the system which

mean that CAB clients often do not receive the correct decision first time. There

are a number of agencies involved in the design and delivery of this system,

including the UK and Scottish Governments, the Department for Work and

Pensions, private assessment providers including Atos Healthcare and the Centre

for Health and Disability Assessments, General Practitioners, the National Health

Service, the British Medical Association, Allied Health Professionals, HM Courts

and Tribunals Service, and independent advice and advocacy organisations. This

is a complex policy area, and improvements require input from all of the

agencies listed above.

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This report presents findings from research carried out by Citizens Advice

Scotland (CAS) during 2016 and 2017, exploring the use of medical evidence to

assess ill health and disability benefits. The research focuses particularly on the

financial and health impacts on CAB clients when they do not receive the right

decision first time, and what information is available to them regarding the type

of support their GP is able to provide. The findings reveal a complex picture, but

suggest that in many cases, not enough information is available at initial claim

stage – or at Mandatory Reconsideration stage – to allow DWP decision makers

to make fully informed and accurate decisions. The evidence suggests that this is

due to both design flaws in the system, and the fact that different government

departments and public sector services have differing responsibilities and

interests in relation to assessment of ill health and disability benefits, which are

not always clearly aligned.

CAS does not have all the solutions, but hope that we can be part of an ongoing

conversation around how improvements might be made, and work

constructively with the UK and Scottish Governments to design and improve

systems to ensure people have access to financial support when they need it,

and that decisions are right first time.

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The current system

Evidence from health and social care professionals plays an important part in the

existing benefits system, particularly in assessing eligibility for ill health and

disability benefits including:

• Employment and Support Allowance (ESA) and Universal Credit (UC)

• Disability Living Allowance (DLA)

• Attendance Allowance (AA)

• Personal Independence Payment (PIP)

There are several points at which evidence from health professionals may be

sought, including: at the initial claim stage; when someone is challenging a

decision either by mandatory reconsideration or independent appeal; and when

someone is required to provide medical certificates or ‘fit notes’ from GPs in

support of an ESA or UC claim (see Figure 1).

Figure 1: Circumstances in which medical evidence is provided in support of a

benefits claim

• Medical evidence provided

in support of a mandatory

reconsideration - the

internal review carried out

by DWP

• Evidence provided to HM

Courts and Tribunals

Service in support of an

appeal regarding a DWP

decision.

• "Fit notes" or medical

certificates are provided

by GPs to certify that the

claimant is unfit for work

• Sometimes sought by the

DWP or assessment

provider, e.g. in the form

of an ESA113 form

• Sometimes provided by

claimants in support of

their initial claim

Evidence

provided in

support of

initial benefits

claim

Evidence

provided in

support of an

ongoing ESA

claim

Evidence

provided

when a

claimant is

challenging a

decision

Evidence

provided in

support of a

claimant's

appeal to the

First Tier

Tribunal

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Evidence in support of initial claims

It is the responsibility of the DWP and assessment provider to gather medical

evidence regarding a claim. GPs have a statutory obligation to provide evidence

when requested to do so by the DWP or an assessment provider such as

Maximus or Atos Healthcare, as specified in the contractual arrangements

between a GP practice and the relevant Primary Care Trust2. NHS trusts are also

required to provide hospital case notes and medical reports without charge.3

For ESA and Universal Credit, Further Medical Evidence (FME) will not be sought in

all cases. It should be obtained in those cases where there is a strong probability

that such evidence will confirm a level of claimed disability. In these cases, a

Health Care Professional (HCP) from the Centre for Health and Disability

Assessments (CHDA) may request GPs to fill in a form detailing the patient’s

conditions and how they affect the individual’s ability to work.4 5 If information

from the GP is needed, usually an UC/ESA113 form will be sent. However, there

may be occasions when a specific issue needs to be addressed and form FRR2 is

more appropriate (e.g., when information about the frequency of epileptic fits is

required). The DWP requires GPs to return these forms within five working days of

receipt. Where, in the HCP’s judgement, there is a clear possibility that a face-to-

face assessment may be avoided the HCP should make reasonable attempts to

seek further evidence.

Similarly, guidance on the PIP claimant journey advises claimants ‘Don’t ask for

other documents which might slow down your claim… If we need this we’ll ask

for it ourselves’6. However, as with ESA, the assessment provider does not always

gather medical evidence at this stage.

2 BMA Guidance to GPs on their statutory obligations:

www.bma.org.uk/advice/employment/fees/benefits-and-work-for-atos

3 DWP Medical Reports Completion Guidance:

www.gov.uk/government/uploads/system/uploads/attachment_data/file/524047/medical-reports-

completion-guidance.pdf

4 ESA113 form:

www.gov.uk/government/uploads/system/uploads/attachment_data/file/251339/esa113-

interactive.pdf

5 DWP Medical Reports Completion Guidance

6 Paragraph 2.3.4 of Department for Work and Pensions PIP Assessment Guide

www.gov.uk/government/uploads/system/uploads/attachment_data/file/547146/pip-assessment-

guide.pdf

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Patients may ask GPs to complete form DS1500 if they are terminally ill. The form

can be used for UC, ESA, PIP, DLA or AA claims and ensures that they are dealt

with rapidly under special provisions.

The DWP guidance states that it is acceptable for GPs to delegate completion of

the ESA113, FRR2, PIP or DLA/AA factual report to a practice nurse.7

Individuals can provide evidence in support of their initial claims, which may be

called ‘further evidence’ or ‘supporting evidence’, but they must gather this

themselves. Further evidence can improve the accuracy of the decision regarding

the claimant’s entitlement to the benefit, but claimants can experience barriers

in accessing supporting evidence. The number one barrier is that GPs and other

health professionals are not required to provide supporting evidence and so may

refuse to do so, or charge a fee. In explaining why GPs charge fees for non-NHS

work, the British Medical Association says:

‘It is important to understand that many GPs are not employed by the

NHS. They are self-employed and they have to cover their costs - staff,

buildings, heating, lighting, etc. - in the same way as any small business.

The NHS covers these costs for NHS work, but for non-NHS work, the fees

charged by GPs contribute towards their costs.’8

The BMA provides guidance to GPs in setting their own fees for non-NHS work.9

Medical Certificates in support of an ESA or UC claim

For the first seven days of a claim, the DWP should accept a self-certificate as

evidence of limited capability for work. After those seven days, the claimant is

required to provide a medical certificate from their doctor. The claimant must be

‘signed off’ as unfit for work until they receive a Work Capability Assessment, but

the medical certificate (otherwise known as ‘Med 3’, ‘fit note’, or ‘sick line’) will

provide evidence that the individual is unfit to work for a finite period of time.

7

DWP Medical Reports Completion Guidance

8

British Medical Association website – Why GPs sometimes charge fees, February 2017

9

British Medical Association website – What to consider when setting your own fees, February

2017

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Therefore, they may be required to acquire an updated medical certificate from

their doctor several times during the assessment phase.

The DWP contacts the individual when they are due to provide an up-to-date

medical certificate. The claimant then has to obtain the medical certificate from

the doctor within a given period of time, and send the medical certificate to the

relevant department in the DWP.

If the DWP does not receive an up-to-date medical certificate within the required

timeframe, then their payments may be stopped altogether. Given that ESA and

Universal Credit are income replacement benefits, this leaves the individual with

no income.

Medical evidence provided when challenging a decision

A final circumstance in which benefit claimants are likely to provide medical

evidence is when they are challenging a decision regarding their eligibility. If the

claimant has been told they have been found ineligible for the benefit, and they

wish to appeal, they are required to first request a Mandatory Reconsideration

(the DWP’s internal review process) and then, if the decision remains unchanged,

an appeal to the First Tier Tribunal.

At this stage, the onus to collect evidence in order to challenge that decision falls

on the claimant and the GP is under no obligation to provide a letter of support.

The British Medical Association’s guidance regarding appeals is that:

‘NHS GPs are under no obligation to provide such evidence to their

patients or to provide it free of charge. If a GP does not agree to provide

additional evidence for their patient then it is a private matter to be

resolved between the GP and their patient.’10

There is a timescale of one month within which to return a Mandatory

Reconsideration request, with any supporting evidence, but there are longer

timescales involved when making an appeal to the First Tier Tribunal, which can

be weeks or months after receiving the initial decision.

10 British Medical Association website – Benefits and work for Atos, September 2016:

www.bma.org.uk/advice/employment/fees/benefits-and-work-for-atos

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Policy context

There are a number of planned changes to ill health and disability benefits,

which may present opportunities to make improvements to the way in which

medical evidence is used in assessing eligibility for benefits. Some of these

changes are outlined below, and more information about the benefits listed

above has been provided in Appendix 3.

Current and future changes to ill health and disability benefits

Incapacity benefits

The 2012 Welfare Reform Act introduced the Coalition Government’s flagship

social security policy: Universal Credit. This new benefit would see the six working

age benefits rolled into one single payment. Universal Credit is paid to a wide

variety of claimants, including those with limited capacity for work due to ill

health or disability. Universal Credit brings with it other changes for this client

group in the form of increased conditionality and a tougher sanctions regime11.

The 2015 Welfare and Work Act introduced a further change to ESA and

Universal Credit in that the Limited Capacity for Work group (the equivalent of

the existing Work Related Activity Group) will, from April 2017, be paid at the

same level as Jobseekers Allowance. This will involve a reduction of £29.05 a

week (at 2017-18 rates), for those unable to work due to ill health or a

disability12.

Most recently, the UK Government published its Work and Health Green Paper,

which it consulted on during winter 2016/17. This paper proposes a number of

changes in the relationship between employment and social security, including

improving assessment of capacity for work, Jobcentres providing more support

and contact with those in the Support Group, changes to certification of fitness

11 Department for Work and Pensions press release: Choosing a life on benefits is no longer an

option, 22 October 2012. Available here: www.gov.uk/government/news/choosing-a-life-on-

benefits-is-no-longer-an-option

12 House of Commons Library, Briefing Paper CBP 7649: Abolition of the ESA Work Related Activity

Component, March 2017, page 14. Available from:

http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7649#fullreport

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for work, and greater sharing of health information across public sector

agencies.13

Disability benefits

In 2010, the UK Government announced that Disability Living Allowance would

be replaced with Personal Independence Payment. In April 2013, the first new

claims for PIP were made, and from October 2015, the DWP began inviting DLA

working age recipients to claim PIP. At the end of January 2017, 543,200 claims

in payment were reassessment claims from DLA (44% of the total PIP caseload).

‘Full PIP Rollout’ is now expected to complete by October 2018.14

Second Independent Review of PIP

In March 2017, Paul Gray published the results of his second independent review

of Personal Independence Payment, focussing on the assessment of the benefit.

One key conclusion of the review is that “public trust in the fairness and

consistency of PIP decisions is not currently being achieved, with high levels of

disputed award decisions, many of them overturned at appeal.”15 He makes a

number of recommendations around improvements that can be made to the

way in which evidence is gathered and appraised, including that:

• The DWP makes clear that the responsibility to provide Further Evidence lies

primarily with the claimant and that they should not assume the Department

will contact health care professionals.

• Assessment Providers and the DWP work to implement a system where

evidence is followed up after the assessment where useful evidence has been

identified and may offer further relevant insight.

13 Department for Work and Pensions, Improving Lives: Work and Health and Disability Green

Paper, October 2016. Available from: www.gov.uk/government/consultations/work-health-and-

disability-improving-lives

14 Department for Work and Pensions, Personal Independence Payment: Official Statistics, March

2017. Available at:

www.gov.uk/government/uploads/system/uploads/attachment_data/file/598755/pip-statistics-to-

january-2017.pdf

15 Paul Gray, The Second Independent Review of the Personal Independence Payment Assessment,

March 2017, Page 3. Available from:

www.gov.uk/government/uploads/system/uploads/attachment_data/file/604097/pip-assessment-

second-independent-review.pdf

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• The Department ensures that evidence of carers is given sufficient weight in

the assessment.16

Devolution of social security powers

New social security powers have been devolved to the Scottish Parliament under

the Scotland Act 2016. These include disability benefits, which make up the vast

majority of the social security budget to be devolved, and are claimed by 10% of

the Scottish population.

The Scottish Government has committed to reforming the way in which disability

benefits are assessed, “from application all the way through to final decision”17

and aims to reduce the number of face-to-face assessments and re-assessments

carried out. In a statement to Parliament in April 2017, the Minister for Social

Security ruled out private companies providing assessment of disability

benefits18, and Expert Advisory Group and Experience Panels have been

established to inform the design of the new system.

Later in 2017, the Scottish Government will introduce a Social Security Bill to the

Scottish Parliament, but it is unlikely that disability benefits will be fully delivered

and administered by the Scottish Social Security Agency until at least 2020.

Co-location of advice and primary care services

Several pilots in Scotland have explored co-location of advice services with GP

practices, allowing Welfare Rights Advisers access to medical records to support

benefit claims. NHS Lothian has evaluated this co-location model in Edinburgh

and Dundee, with positive results19. The key element of this co-location model is

the advisers’ direct access to patients’ medical records, which enables easy

access to clients’ medical information as required. The Improvement Service has

recommended that: “On a national level, [this model] should also be given due

16 Paul Gray, The Second Independent Review of the Personal Independence Payment Assessment,

March 2017, Pages 11-12.

17 Scottish Government, A New Future for Social Security Scottish Government Response to the

Consultation on Social Security in Scotland, February 2017, page 14. Available from:

www.gov.scot/Topics/People/fairerscotland/Social-Security/SG-Response

18 Ministerial announcement on the new social security system, 27th April 2017. Scottish

Government press release available here: https://news.gov.scot/news/new-social-security-agency-

puts-people-first

19 Improvement Service, Forecast Social Return on Investment Analysis on the Co-location of

Advice Workers with Consensual Access to Individual Medical Records in Medical Practices, 2017.

Available here: www.improvementservice.org.uk/documents/money_advice/SROI-co-location-

advice-workers.pdf

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consideration by the Scottish Government in reference to the new Social Security

powers”20.

Decision making, reconsideration and appeals

Introduction of Mandatory Reconsideration

In October 2013 the Department for Work and Pensions (DWP) made it a

requirement that all benefit claimants who wanted to take a case to appeal

would have to get a DWP decision maker to reconsider the decision first. This is

known as a ‘Mandatory Reconsideration’. According to previous UK Government

ministers, “these measures aim to ensure timely, proportionate and more

efficient dispute resolution”21 and “mandatory reconsideration will improve the

disputes process and effectively shorten the journey for all DWP administered

benefits, not just those referred to, by making sure that as many disputes as

possible are resolved without the need to appeal.”22

Under the regulations, a claimant must request a reconsideration within one

month of the date of notification of the original decision, except in exceptional

circumstances23. A claimant can ask for a decision to be revised either orally or in

writing, but there is no application form. After a claimant has requested a

mandatory reconsideration, there is no time limit within which the DWP must

consider whether it will revise its decision, and disputed benefit entitlement is

not payable pending a Mandatory Reconsideration notice.

Various organisations and agencies have raised concerns about Mandatory

Reconsideration24, in particular highlighting the barrier it may present for people

to have decisions considered by an independent Tribunal. This concern arose in

20 Improvement Service and The Money Advice Service, Case Study: Co-location of Advice Workers

in Medical Practices in Dundee and Edinburgh, 2017, page 4. Available here:

www.improvementservice.org.uk/documents/money_advice/ma-case-study-colocation-advice-

medical.pdf

21 HC Deb, 30 April 2012, c1334W

22 HC Deb, 11 June 2013, c307W

23 Regs 3, 4 SSCS(DA) Regs 1999; regs 5, 6 UC,PIP,JSA&ESA(DA) Regs 2013

24 See, for example, The Alliance: www.alliance-scotland.org.uk/news-and-

events/news/2014/06/mandatory-reconsideration-its-time-to-reconsider/#.WPYboPnyuUk; Child

Poverty Action Group: www.cpag.org.uk/sites/default/files/CPAG-SSAC-consultation-decision-

making-mandatory-reconsideration-Mar-2016.pdf; Benefits and Work:

www.benefitsandwork.co.uk/news/3521-massive-fall-in-success-rates-for-esa-mandatory-

reconsideration

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response to the drop in appeals following the introduction of Mandatory

Reconsideration.

Tribunal Statistics

Tribunal receipts were lowest during the period between January to March 2014

(the year following the introduction of Mandatory Reconsideration), and 67%

lower than the same period of 2013. Social Security and Child Support (SSCS)

accounted for 38% of these receipts and drove the overall downward trend. The

official report from this quarter suggests that “this could be due to … the

introduction of mandatory reconsideration across DWP benefits.”25

However, the most recent official statistics from the HM Courts and Tribunals

Service shows that social security appeals have been increasing since April-June

2014. For the October to December 2016 quarter, when compared to the same

quarter in 2015, overall receipts for all tribunals increased by 4% while Social

Security and Child Support (SSCS) tribunal receipts increased by 47%. The official

report recognises that “this increase is driven by two types of benefit – Personal

Independence Payment and Employment Support Allowance, up 71% and 58%

respectively”26.

Another possible explanation for the rise in appeals is that, since the MR process

was introduced, there has been a decreasing trend in the number of ESA

decisions being revised at reconsideration each month27. The most recent

available data28 shows that, of those ESA claimants who receive a decision

following a Work Capability Assessment (WCA), 14% challenged the decision via

a Mandatory Reconsideration. Of those reconsiderations, only 10% of decisions

25 Official Statistics, Tribunals and Gender Recognition Statistics Quarterly, January to March 2016,

June 2016, page 31. Available from:

www.gov.uk/government/uploads/system/uploads/attachment_data/file/597905/tribunal-grc-

statistics-q3-2016-2017.pdf

26 Official Statistics, Tribunals and Gender Recognition Statistics Quarterly, October to December

2016 (provisional), March 2017, page 7. Available from:

www.gov.uk/government/uploads/system/uploads/attachment_data/file/597905/tribunal-grc-

statistics-q3-2016-2017.pdf

27 DWP Official statistics, Employment and Support Allowance: Work Capability Assessments,

Mandatory Reconsiderations and Appeal, March 2017, page 8. Available from:

www.gov.uk/government/statistics/esa-outcomes-of-work-capability-assessments-including-

mandatory-reconsiderations-and-appeals-march-2017

28 DWP Official statistics, Employment and Support Allowance: Work Capability Assessments,

Mandatory Reconsiderations and Appeal, March 2017. Available from:

www.gov.uk/government/statistics/esa-outcomes-of-work-capability-assessments-including-

mandatory-reconsiderations-and-appeals-march-2017

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were revised. Following this, 23% continue to appeal, and at appeal stage 58% of

decisions are overturned. These percentages are represented in Figure 2.

Figure 2: Comparison of percentage of ESA decisions revised at Mandatory

Reconsideration and percentage overturned on appeal

WCA

decisions

not

challenged

85%

WCA

decisions

challenged

15%

WCA decisions challenged by Mandatory

Reconsideration

Decisions

not revised

89%

Decisions

revised

10%

Withdrawn

1%

Decisions revised at Mandatory Reconsideration

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Source: Official statistics on Employment and Support Allowance: Work Capability

Assessments, Mandatory Reconsiderations and Appeal, March 2017

In response to the recent increase in appeals, the HM Courts and Tribunals

Service has issued a letter to all representative organisations, making them

aware that they expect to see an increase of 60% over the coming year, and

encouraging them to consider how they will meet this demand.

Data from HM Courts and Tribunals Service shows how many decisions are

overturned on appeal. Data from 2015/16, presented in Table 1 shows PIP and

ESA to be the two benefits with the highest percentage of decisions overturned

on appeal. In Quarter 4 of 2015/16, 63% of PIP decisions were overturned on

appeal, and 58% of ESA decisions.

Overturned

57%

Upheld

43%

Decisions overturned at appeal

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Table 1: Official statistics showing percentage of benefit entitlement

decisions overturned on appeal

Benefit

2015/16 Q1

2015/16 Q2

2015/16 Q3

2015/16 Q4

AA

31%

29%

33%

27%

TC

52%

48%

46%

44%

ESA

58%

58%

58%

58%

IS

42%

43%

44%

45%

JSA

47%

40%

43%

43%

PIP

57%

60%

61%

63%

UC

32%

47%

47%

45%

Source: Decision Making and Mandatory Reconsideration: A study by the Social

Security Advisory Committee, Occasional Paper No. 1829. Based on official

statistics: Tribunals and gender recognition certificate statistics quarterly:

January to March 201630

It should be noted that these statistics reflect a small proportion of the overall

decisions made by the DWP, as less than one per cent of decisions are appealed.

These statistics cannot be used to reflect the quality of decisions made in cases

which have not been brought to Tribunal, although it is probable that there are

other challengeable decisions that go undetected.

Due to limited publication of statistics around quality assurance and audit of

internal decision making by DWP, quality of decision making for decisions that

are not brought to the First Tier Tribunal are simply unknown.31

What we do know, however, is the cost of appeals. In 2013-14, just over 300,000

Employment and Support Allowance decisions were appealed, which cost the

Treasury almost £70 million and took an average of 25 weeks.32

29 Social Security Advisory Committee, Decision Making and Mandatory Reconsideration: A study by

the Social Security Advisory Committee, Occasional Paper No. 18, July 2016, page 13. Available

from: www.gov.uk/government/uploads/system/uploads/attachment_data/file/538836/decision-

making-and-mandatory-reconsideration-ssac-op18.pdf

30 Official statistics, Tribunals and gender recognition certificate statistics quarterly: January to

March 2016, June 2016. Available from: www.gov.uk/government/statistics/tribunals-and-gender-

recognition-certificate-statistics-quarterly-january-to-march-2016

31 For a more comprehensive analysis of HM Courts and Tribunals statistics and what we can infer

from them, see the Social Security Advisory Committee’s study on Decision Making and Mandatory

Reconsideration.

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Committee recommendations regarding Decision Making

In 2014, the Work and Pensions Committee considered Mandatory

Reconsideration as part of its inquiry into Benefit Delivery. The final report

recommended that:

• Assessment rate ESA be paid to claimants throughout reassessment of their

claim, not only once an appeal is lodged.

• The DWP publish Mandatory Reconsideration clearance time statistics and

that the DWP introduce a seven day clearance time target for all Mandatory

Reconsiderations.33

In its official response, the DWP did not commit to making any substantial

changes to policy in response to these recommendations34.

The Social Security Advisory Committee, as part of its independent work

programme, last year published a paper on decision making and Mandatory

Reconsideration. This study concluded that Mandatory Reconsideration “could be

an efficient process that provides opportunity for timely review” but that “the

process does not work as well as it should.” The report makes a total of 37

recommendations around how decision making and Mandatory Reconsideration

could be improved, which have been provided in Appendix 4.

32 Thomas, R. Administrative Justice, Better Decisions, and Organisational Learning, Public Law,

2015. Available from: papers.ssrn.com/sol3/papers.cfm?abstract_id=2477969

33 House of Commons Work and Pensions Select Committee, Benefit Delivery, Fourth Report of

Session 2015–16, December 2015, pages 32-3. Available from:

www.publications.parliament.uk/pa/cm201516/cmselect/cmworpen/372/372.pdf

34 DWP, Benefit delivery: Government Response to the Committee’s Fourth Report of Session

2015–16, 2016. Available from:

www.publications.parliament.uk/pa/cm201617/cmselect/cmworpen/522/52204.htm

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Methodology

This report is based on evidence gathered by Citizens Advice Scotland during

2016 and 2017. It includes analysis of existing qualitative and quantitative data

held by the CAB service in Scotland and, in addition, data gathered via a survey

of CAB advisers, an online mapping exercise, and a survey of GPs and other

health professionals. In addition to this, CAS gathered longitudinal case histories

and documentary evidence relating to these.

Eighteen Citizens Advice Bureaux from across Scotland participated in the project

(see Table 2), and project leads for each site were recruited from existing staff

and volunteers. The project leads were provided with a research toolkit with

detailed instructions, and were responsible for co-ordinating the research locally,

including gathering survey responses, extracting case histories from the case

management system, and providing anonymised documents.

The Research Tools Annex, published alongside this report, provides full details of

the surveys and instructions provided to bureaux.

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Table 2: Participating citizens advice bureaux and data collected by each

Citizens Advice Bureau

GP and Health

Professionals survey

Collection of case

histories

Airdrie CAB

✓

✓

Citizens Advice and Rights Fife

✓

✓

Central Borders CAB

✓

✘

Clackmannanshire CAB

✓

✓

Dumfries and Galloway Citizens

Advice

✓

✓

Dalkeith CAB

✓

✓

Drumchapel CAB

✓

✓

East and Central Sutherland CAB

✘

✓

East Ayrshire CAB

✓

✘

East Kilbride CAB

✓

✓

Grangemouth CAB

✓

✓

Inverness CAB

✓

✘

Motherwell and Wishaw CAB

✓

✓

Nairn CAB

✓

✓

Parkhead CAB

✘

✓

Peebles CAB

✓

✓

Rutherglen and Cambuslang CAB

✓

✓

South West Aberdeenshire CAB

✓

✓

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‘Citizen Alerts’

The majority of Citizens Advice Bureaux in Scotland use a real-time electronic

case recording system, and send case notes from client enquiries which

demonstrate services or policies which they feel are failing to meet clients’ needs

to the Policy Team at Citizens Advice Scotland. These case notes, known as

‘Citizen Alerts’, are typically between 100 and 500 words, and are written up by

the CAB adviser directly following a client interview. Ongoing analysis of this

existing data helped to inform the drafting of the research questions, the surveys

and the research toolkit.

Adviser survey

In addition, CAS conducted an adviser survey on medical evidence in support of

Personal Independence Payment claims in August 2016 which received a total of

61 responses from 40 CAB offices. This represents 65% of the bureaux across

Scotland.

Respondents to the survey were from urban, rural and island CABs, including

CABs on Orkney and the Outer Hebrides and our most remote CAB in

Kinlochbervie. The survey also received responses from bureaux that serve some

of the most deprived areas of Scotland including Renfrewshire and Drumchapel

CABs.

One fifth of respondents were specialist advisers, and a further 18% were

generalist advisers, though the survey was also filled in by managers, session

supervisors and others with specialist roles. More than a quarter of respondents

reported that they had advised more than 50 clients regarding a PIP claim in the

six months prior to completing the survey. The full questionnaire is provided in

Appendix 1.

Online mapping and data collection

Participating bureaux gathered data on local GP surgeries and other local

healthcare departments. They were asked to focus on services that were a) those

that were commonly used by clients; and b) those that were most local to the

bureau. Project leads gathered data on what information is provided online to

clients about access to medical evidence and medical certificates in support of

benefit claims. The URLs of relevant web pages were provided to CAS for

analysis.

GP and Health Professionals’ survey

Participating bureaux conducted a survey of local GP surgeries and other Health

Professionals during January and February 2017. These were two slightly

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different surveys, with some identical questions. The surveys were designed by

Citizens Advice Scotland and distributed and collated by project leads at 16

participating bureaux. The surveys received 62 responses from 42 GPs practices

across Scotland, and 21 responses from health professionals, including:

• Consultant Clinical Neuropsychologist

• Clinical Nurse Specialist

• Community Psychiatric Nurse

• Consultant in Anaesthesia & Pain Management

• Physiotherapist

• Addiction Service

Case histories

CAS provided instructions to the project leads of participating bureaux in order

that they could extract longitudinal case histories of clients who had undergone

ill health or disability benefits appeals.

The project leads were presented with instructions on how to download these

case histories from the electronic case management system used by the Scottish

CAB Service. For the purposes of this report, case histories were analysed, the

shortest of which spanned 14 days, and consisted of case notes from two

instances of contact with the client; the longest of which spanned 6 years, 8

months, and consisted of case notes from 25 contacts with the client. Five of the

case histories provided were discarded during analysis due to lack of detail or

clarity, leaving 45. The mean length of the case studies was 616 days

(approximately 1 year 8 months), and the mean number of instances of client

contact was 11.

The case studies were analysed using a framework analysis, in which a number

of indicators were developed to capture information relevant to the research

questions. These indicators were developed separately by each of the

researchers, and compared for consistency. Following this process, each case

study was analysed for the presence of these indicators and coded accordingly.

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Documentary evidence

To supplement the case histories, participating bureaux provided anonymised

documentary evidence relating to the cases. These included benefit claim forms,

benefit decision letters, Mandatory Reconsideration notices, First Tier Tribunal

Appeal papers, and medical evidence provided in support of claims. Participating

bureaux provided in excess of 100 documents relating to the case files, which

were read and analysed in conjunction with the case notes. Appendix 2 provides

a full list of the documents included in the analysis.

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Findings

Statistics from the Scottish CAB Service

Advice related to Benefits and Tax Credits makes up the largest proportion of

advice provided by the CAB network in Scotland. In 2015/16, Scottish bureaux

advised on over 227,000 benefits-related issues, making up 39% of the overall

advice given.

Employment and Support Allowance (ESA) is the most common single issue that

Scottish citizens advice bureaux provide advice on, with Personal Independence

Payment (PIP) Daily Living component the second most common. During

2015/16, Scottish bureaux advised on over 32,000 issues related to ESA, 14% of

all benefits advice provided. During the same period, Scottish bureaux advised on

24,000 issues related to PIP Daily Living component (11% of all benefits advice),

and 20,400 issues related to PIP Mobility (9% of all benefits advice provided).

Table 3 shows the top ten most common issues related to ESA during 2015/16.

Following general advice regarding benefit entitlement and the claiming process,

the most common advice provided is in relation to reconsideration and appeals,

which together make up over 15% of all advice regarding ESA. The next most

common advice given is in relation to the Work Capability Assessment, which

represents 12% of all ESA advice provided.

In April 2016, a new advice code was introduced to capture advice related to

issues around medical evidence for ESA claims. During the first two quarters of

2016/17, Scottish CAB recorded 947 pieces of advice relating to medical

evidence, which represents 5% of all ESA related advice provided during this

period.

Table 4 shows the top ten most common issues related to PIP during 2015/16.

Again, following general advice regarding benefit entitlement and the claiming

process, the most common advice provided is in relation to reconsideration and

appeals, which together make up 16% of all advice regarding the PIP Daily Living

component, and 17% for the Mobility component. Following the introduction of

the ‘medical evidence’ code, data from the first six months of 2016/17 showed

that 3% of PIP advice provided was in relation to issues around medical

evidence.

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Table 3: Top ten most common ESA issues Scottish CAB provided advice on

during 2015/16

Issues

Number

%

Claiming process / backdating

10,954

29%

Entitlement (benefit check)

9,325

24%

Work capability assessment

4,567

12%

Payment

3,772

10%

Reconsideration

3,464

9%

Appeals

3,143

8%

Revisions / supersessions

1,093

3%

Work Related Activity

798

2%

Transfer from statutory sick pay

640

2%

Poor administration / complaints

401

1%

Total ESA issues

38,157

Table 4: Top ten most common PIP issues Scottish CAB provided advice on

during 2015/16

PIP

Daily Living

Mobility

Issues

Number

% Number

%

Claiming process / backdating

13,966 46% 11,632

46%

Entitlement (benefit check)

6,717 22%

5,793

23%

Reconsideration

2,434 8%

2,253

9%

Appeals

2,409 8%

2,049

8%

Payment

1,357 4%

1,033

4%

Medical examinations

961 3%

772

3%

Renewals

723 2%

604

2%

Revisions / supersessions

409 1%

412

2%

Civil penalty

140 0%

134

1%

Poor administration / complaints

126 0%

96

0%

Total PIP issues

30,301

25,557

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Increases and decreases in advice in relation to ESA and PIP

Since PIP was introduced, CAB across Scotland have seen a steady increase in

advice regarding PIP as the caseload has increased, as we would expect to see

with the introduction of any new benefit. However, as Figure 3 shows, the

increase in advice need in relation to disability benefits has increased overall, as

can be seen when DLA and PIP advice is considered together. We would expect

to see issues related to DLA fall as PIP issues increase, but what Figure 3 shows is

that advice need in relation to disability benefits has tripled in the last three

years.

Figure 3: Percentage of new advice issues relating to PIP and DLA as a

proportion of total benefits advice - 2013/14 to 2015/16

Whilst advice in relation to PIP has been increasing, advice in relation to ESA has

been decreasing since its peak in 2013/14. Figure 4 shows that advice in relation

to ESA has steadily decreased from 38,600 issues in 2013/14, to just over 32,200

issues in 2015/16. Figure 5 shows that advice in relation to ESA has also been

decreasing as a proportion of all benefits-related advice.

Data from the first six months of 2016/17, however, suggests that ESA issues are

on the rise again, with CAB advising on over 19,000 issues during this six month

period (3,600 more issues than were advised upon during the same period of the

previous year). This increase has been driven by an increase in advice provided in

relation to the Work Capability Assessment, which saw an 81% increase, an

increase in relation to Reconsiderations, which saw a 50% increase, and an

increase in relation to appeals, which saw a 30% increase.

2%

3%

2%

2%

3%

2%

2%

7%

11%

1%

6%

9%

2013/14

2014/15

2015/16

PIP Mobility

PIP Daily Living

DLA Mobility

DLA Care

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However, despite the recent increase in numbers, ESA issues have only increased

by one percentage point when taken as a proportion of all benefits advice, which

is likely to be due to the increase in advice provided in relation to disability

benefits, as shown above.

Figure 4: Number of new pieces of advice provided in relation to ESA from

2012/13 to 2015/16 (in thousands)

Figure 5: New pieces of advice provided in relation to ESA as a percentage of

all benefits advice

25000

30000

35000

40000

2012/13

2013/14

2014/15

2015/16

0%

5%

10%

15%

20%

2012/13

2013/14

2014/15

2015/16

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Appeals statistics

During 2015/16, CAB in Scotland supported clients to complete 2,731 appeal

forms (SSCS1 forms) to appeal against a decision made by the DWP. Of these

cases, CAB represented clients at 2,561 appeals to the First Tier Tribunals (94%) .

Of the 2,295 cases heard at Tribunal (not including those which were adjourned),

59% had the decision changed, and a further 4% had the decision partially

changed, compared to 38% where the decision remained the same (see Figure

6). However, some CAB have reported that their appeal success rate is as high as

70%. Analysis of advice codes shows that 77% of appeals advice and

representation is in relation to ill health and disability benefits.

CAB advice code statistics also show that advice related to Mandatory

Reconsideration and advice related to appeals is flattening out. Assuming that,

at Mandatory Reconsideration stage, a proportion of decisions will be overturned

in the claimant’s favour, we would expect to see advice in relation to Mandatory

Reconsideration as slightly higher than advice in relation to appeals, as it is only

unfavourable decisions that go to appeal. What the statistics in Figures 7, 8 and

9 show is that, between 2014/15 and 2015/16, the difference between the

number of Mandatory Reconsiderations (the blue columns), and the number of

Appeals (the red columns) decreased, for most benefits. It is difficult to draw

conclusions from this data; one possible explanation for this is that DWP initial

decisions are increasing in accuracy, but the 59% success rate at appeal does

not substantiate this explanation. Another possible explanation is that fewer

decisions were changed in the client’s favour at reconsideration stage in 2015/16

than in 2014/15.

Figure 6: Percentage of successful appeals to the First Tier Tribunal

38%

59%

4%

Appeal unsuccesful

(decision upheld)

Appeal succesful

(decision

overturned)

Appeal partially

succesful (part of

the decision

overturned)

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Figure 7: The difference between Mandatory Reconsideration advice and

Appeals advice for DLA, 2014/15 to 2015/16

Figure 8: The difference between Mandatory Reconsideration advice and

Appeals advice for PIP, 2014/15 to 2015/16

0

200

400

600

2014/15

2015/16

DLA Care MR

DLA Care Appeals

DLA Mobility MR

DLA Mobility Appeals

0

1,000

2,000

3,000

2014/15

2015/16

PIP Daily Living MR

PIP Daily Living Appeals

PIP Mobility MR

PIP Mobility Appeals

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Figure 9: The difference between Mandatory Reconsideration advice and

Appeals advice for ESA, 2014/15 to 2015/16

0

2000

4000

6000

2014/15

2015/16

ESA MR

ESA Appeals

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Quality of Decision Making

From the analysis of case studies, the number of clients who have had decisions

overturned on appeal suggests that there are problems associated with quality

of decision making at the initial claim stage. Sixteen of the 45 cases included in

the analysis (35%) showed evidence of the decision regarding the client’s

eligibility for the benefit being overturned at appeal. Not all cases showed the

outcomes of appeals, however, so if only those cases which showed the outcome

of the appeal are considered, this increases to 73%, or 16 out of 22 clients who

had a decision overturned in their favour on appeal.

Of the 36 clients who challenged a decision through the Mandatory

Reconsideration process – which includes all of those clients whose decision was

ultimately overturned on appeal as outlined above – 89% of those clients did not

have their decisions changed at Mandatory Reconsideration stage (N=32), and

only 8% (N=3) did have a decision changed in their favour (the outcome of the

decision is unknown for one of the cases).

Below, we explore in detail each stage of the evidence gathering process, in

order to better understand the reasons why decision makers may not have

adequate information to make a fully informed decision. First, evidence gathered

in relation to the initial claim is considered, then the mandatory reconsideration

stage, and finally, appeals.

Initial claim stage

There are a number of different types of evidence gathered at the initial claim

stage:

1. Medical evidence provided by clients at initial claim stage;

2. Assessment forms (ESA50 and PIP2);

3. Face-to-face assessments carried out by independent assessment providers

(for example, Atos Healthcare and the Centre for Health and Disability

Assessments);

4. Evidence sought from GPs and other health care professionals by DWP or

assessment provider at initial claim stage (for example, via the ESA113, or PIP

forms).

Findings related to each of these types of evidence are explored in more detail

below.

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1. Medical evidence provided by clients at initial claim stage

KEY FINDINGS:

Clients rarely gather further medical evidence at initial claim stage. This is

likely to be due to a number of factors:

• The DWP advise claimants not to gather additional evidence at this stage;

• GP practices sometimes refuse to provide supporting medical evidence direct

to claimants, or may charge fees which can act as a financial barrier for

claimants;

• The one month timescale within which to return the self-assessment form

can be too tight a timescale to gather additional evidence.

Respondents to the CAB adviser survey indicated that it is ‘difficult’ or ‘very

difficult’ for claimants to obtain supporting evidence from GPs at initial claim

stage.

It is the responsibility of the DWP or assessment provider to gather medical

evidence regarding a claim. GPs have a statutory obligation to provide evidence

when requested to do so by the DWP or an assessment provider such as

Maximus or Atos Healthcare35.

Claimants are discouraged from gathering further evidence themselves at this

stage. Individuals can provide evidence in support of their initial claims, which

may be called ‘further evidence’ or ‘supporting evidence’, but they must gather

this themselves.

35 British Medical Association website – Benefits and work for Atos, September 2016:

www.bma.org.uk/advice/employment/fees/benefits-and-work-for-atos

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In line with this, the case history analysis suggested that supplementary medical

evidence is rarely provided at initial claim stage. From an analysis of 75 case

studies, evidence provided with PIP2 or ESA50 claim forms was mentioned on

only seven occasions. For example:

Case extract:

Completed ESA50 with client and collected medical evidence.

Case extract:

Medical evidence provided by consultant neuropsychologist for PIP

reassessment.

This is likely to be due to the fact that claimants are advised by the DWP not to

gather additional evidence at this stage, other than what they already have, but

other findings suggest that claimants who do wish to seek further evidence may

experience barriers in gathering this.

One barrier clients encounter is fees charged for the provision of medical

evidence at any stage of the claims process. These fees can vary widely, from

£10 to £75. The analysis of the 45 case studies showed eight cases where the

client had been charged a fee or been refused medical evidence. This research

also found a small number of cases in which a client was unable to afford the

fees, or paid them and experienced financial detriment as a result.

Case extract:

22 November 2016: The client told me he was on his way to GPs to get

medical records to support Mandatory Reconsideration. The client called

back half an hour later to tell me he had to pay there and then and the

medical records will be available to collect on Wednesday. I asked the

client to bring them in as soon as possible.

10 January 2017: The client has to pay £15 to get medical records to

support his case... The client is low on fuel and does not have enough

money to buy food.

He advised he will get medical records on Friday and details of the

medical he attended. He advised that he is struggling with money so this

has been the reason for the delay in getting the medical records.

24 January 2017: Client advised me he just cannot afford to pay for

medical records; he has no money left.

Some respondents to the CAB adviser survey also commented that fees can

present a barrier to clients accessing medical evidence:

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“If a client requests a GP or consultant report, the client often has to pay for

it, and many are unable to do that.” (CAB adviser)

“We struggle to get some medical practices to provide crucial detailed

evidence without charging their patients for it.” (CAB adviser)

“Clients face difficulties in accessing good supporting evidence and often

the GP can write (for a fee) information that does not help their case.” (CAB

adviser)

Another barrier is related to the timescales involved: a client only has one month

from receiving their claim form to complete and return it. When asked whether

one month was enough time to gather relevant medical evidence in support of

their initial claim, 80% of respondents to the CAB adviser survey said that one

month was ‘rarely’ or ‘never’ enough time.

Advisers were also asked how easy it is to gather supporting evidence at initial

claim stage from various kinds of health and social care professionals. The

category which received the highest number of responses indicating that

supporting evidence could be obtained with ease was Allied Health Professionals

(23%). The survey results showed specialist doctors to be the most difficult

category from which to obtain supporting evidence. Three quarters of those who

answered the question (74%) also indicated that it is with ‘difficulty’ or ‘great

difficulty’ that claimants obtain supporting evidence from GPs at initial claim

stage, and a further four respondents said it was ‘impossible’ to obtain evidence

from GPs.

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Figure 10: Ease of obtaining supporting evidence from health and social care

professionals – based on adviser survey

23%

28%

25%

12%

17%

59%

33%

55%

37%

37%

18%

36%

20%

49%

37%

3%

2%

9%

Mental health service

providers

Allied Health Professionals

Healthcare or social work

professional based in the

community

Specialist doctors

GPs

With ease

With difficulty

With great difficulty

Impossible

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The case notes contained some examples of CAB advisers encouraging clients to

send medical evidence with their claim forms.

Case extract:

Took the opportunity to talk the client through the ESA50 to identify what

information he would need to bring to his appointment. I stressed that if

he had any letters from the hospital etc. or a list of medicines taken he

should bring these with him. The client said he did not have a list of

medicines, but would bring his medicines with him.

Case extract:

I filled the ESA50 form based on the information given by the client, I

advised the client he may be sent for a face to face assessment, I also

stressed to the client he should get medical evidence to back up his claim.

This may be because advisers believe that the outcome is more likely to be

favourable to clients if further evidence is gathered, as the following comment

suggests:

“Often claimants themselves will seek additional medical evidence to

support an initial benefit claim, a mandatory reconsideration request or

benefit appeal. We know that clients are more likely to receive a favourable

decision if this evidence is provided.” (CAB adviser)

Finally, when asked whether their practice had a specific procedure in place in

relation to a request for evidence in support of initial claims, 53% (N=33) of the

62 GPs who responded said ‘no’ they did not, compared to 32% (N=20) who said

that they did.

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2. Assessment forms (ESA50 and PIP2)

KEY FINDINGS:

Responses to the CAB adviser survey, as well as case evidence from bureaux,

suggests that the application process is currently difficult to navigate for

many claimants.

When asked what proportion of claimants are able to complete the PIP2 ‘How

your disability affects you’ form on their own, 63% of CAB survey respondents

said ‘very few’ or fewer than 10% would be able to do this on their own.

The analysis of case studies also showed some evidence of clients’

misunderstanding what information needed to be included in claim forms:

Case extract:

Client had written on his ESA50 form that he was experiencing four

seizures a month and stated to the HCP that he was having three a

month. However, client states that he was only talking about his night

time fits as he thought DWP were aware of his day time fits of which he

was having approximately three weekly.

Again, advised client that it would be beneficial to his case if could get

medical evidence supporting this, as the current supporting letters from

the GP only advise as to how frequently the client is experiencing seizures

now and not how the client was back in July when the decision was made.

Issues in relation to assessment forms were also raised in response to the health

professionals’ survey:

“I find that the current forms from DWP are very lengthy and arduous. The

questions can be complex and not always appropriate to health issues of

the service user” (Addiction Service)

During 2015 CAS carried out a wide-ranging consultation with CAB clients and

advisers on the topic of disability benefits36. This yielded a number of

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suggestions regarding changes that could be made to application forms which

would make them easier for claimants to use. These changes included:

• Ensuring that disabled people and representative organisations are involved

in the design of any application form, and that design is kept under review;

• Shortening the form;

• Reducing the number of repetitive questions;

• Form should include descriptions of different scenarios which illustrate how a

person’s disability or health condition may impact on their daily living or

mobility;

• Form should allow people to fully explain their condition and its impact;

• Form should be less rigid and not simply a ‘tick box’ approach;

• The language of questions needs to be much clearer;

• Form should be more focused on what a person can do, and what support

they need to do that.

36 The full methodology and findings of which are presented in CAS’s response to the Scottish

Government’s consultation on the Future of Social Security in Scotland, October 2016. Available

here: www.cas.org.uk/system/files/publications/social_security_consultation_-

_response_from_citizens_advice_scotland.pdf

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3. Face-to-face assessments carried out by independent assessment providers

KEY FINDINGS:

The manner of healthcare professionals during assessments is an issue for

bureau clients, which may affect their ability to express themselves during

the consultation and could impinge upon the quality of information

gathered.

Regarding the accuracy of the healthcare professional’s report, 59% of CAB

adviser survey respondents said that clients ‘rarely’ agreed that the

healthcare professional’s report accurately reflected the discussion that

took place.

Some comments made in response to the GP survey also raised concerns

regarding the assessment process.

CAS has raised concerns about face-to-face assessments for ill health and

disability benefits elsewhere. The focus of this report is the quality of evidence

used to assess benefit claims. Therefore, the findings presented below avoid

going into detail regarding all of the issues associated with face-to-face

assessments. However, findings related to the experience of assessments are

presented, because someone’s experience, comfort and ability to express

themselves during the consultation could impinge upon the quality of

information gathered.

The manner of healthcare professionals during assessments is an issue for

bureau clients: 82% of CAB adviser survey respondents said that issues relating

to the manner of healthcare professionals were raised ‘often’ when advising

clients about their PIP claims or ‘every time’ they advised a client about their PIP

claim (see Figure 11). Similarly, when asked about the appropriateness of the

questions asked by healthcare professionals, three quarters of CAB adviser

survey respondents said that issues around the appropriateness of the questions

asked during the consultation came up ‘often’ or ‘every time’ they advised a

client regarding a PIP claim.

“DWP's guidance states that HCPs should use open ended questions but far

too often clients come to see me stating that they are being told to answer

yes or no, with no or limited explanation allowed.” (CAB adviser)

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Figure 11: How frequently do issues around the manner of HCPs arise during

advice interviews?

A number of CAB adviser survey respondents were concerned that, for those with

mental health issues, medical assessments can be stressful, and anxiety can

prevent them from engaging with the process:

“Mental health issues are the biggest problem - those with anxiety who

struggle to engage with others” (CAB adviser)

“People with mental health problems find it extremely stressful” (CAB

adviser)

“[PIP assessments are] similar to ESA, in that clients with mental health

issues 1. find the process very stressful - often to the point of abandoning

their claims, and 2. find that their mental health issues are not recognised

throughout the assessment process.” (CAB adviser)

“Those with mental health issues may not be able to open the mail

notifying of the ATOS medical appointment” (CAB adviser)

The case extract below demonstrates an occasion when a client was so anxious

about an assessment that she decided to abandon the claim.

Case extract:

The client attends a GP and a Psychologist and has previously been

sectioned twice. The client explained that she had previously, around one

year ago, applied for PIP but was not awarded the benefit at that time.

The client was advised that she may qualify for PIP as her condition

means that she may require help with specific daily activities. It was

explained that we could help complete the PIP2 form however I could not

27%

56%

7%

7%

4%

Every time

Often

Sometimes

Rarely

Never

Don’t know

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guarantee that she would not be asked to attend a medical assessment.

The client became very agitated and anxious and stated that she did not

want to apply for PIP as she could not cope mentally with the process and

left abruptly asking for the notes to be shredded. I explained to the client

that if she would like any further advice in the future she can return and

also advised that the notes would be shredded on my return.37

Regarding the accuracy of the healthcare professional’s report, 59% of CAB

adviser survey respondents said that clients ‘rarely’ agreed that the healthcare

professional’s report accurately reflected the discussion that took place (N=27),

20% said it ‘sometimes’ reflected the discussion that had taken place (N=9), and

13% (N=6) said it ‘never’ did (see Figure 12).

A West of Scotland CAB reports of a client who was challenging a decision

regarding his PIP award. He felt that the difficulties he has taking

nutrition, managing his medication and washing due to tremor in both

hands had not been recognised. The client advised that statements

contained within the decision maker’s reasoning regarding mixing with

family members and going for walks had been taken out of context.

Contrary to the report, he states that he was extremely anxious on the

day. Despite referring to the medical evidence the CAB had submitted with

the PIP2 form in the decision letter, they do not appear to have taken into

account the supporting statements contained within.

Some comments made in response to the GP survey also raised concerns

regarding the assessment process:

“Despite us providing good evidence to the DWP [as is our] statutory duty, a

large number of patients have their claim poorly assessed. There is often

little or no examination and health problems are frequently ignored.” (GP)

“Patients frequently complain about the assessment and appeals process;

they tell us we get the blame for benefits being refused. Anxious and

depressed patients become more anxious and depressed as a result of the

assessment and appeals process, increasing our workload even further.”

(GP)

37

This case was written up based on the adviser’s recollection of the interview with the client. The

notes that the client requested to be destroyed were notes in relation to her health and disabilities

that would have been included in her PIP2 application form.

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Figure 12: In your experience of advising clients who have seen an Atos

healthcare professional’s report following a consultation, how often do clients

tend to agree that the report accurately reflects the discussion that took

place?

Below is an account of one client’s experience of a medical assessment, at which

the CAB adviser was present. This client felt strongly that there was no need to

carry out a face-to-face assessment as evidence had already been provided

detailing her multiple health conditions. As can be seen from the account of the

assessment, the Health Care Professional was also of the view that the

assessment was not necessary, but proceeded ‘as instructed’.

Case extract:

Assessment conducted by a medical and psychiatric nurse. [The assessor]

introduced herself and stated as soon as the client entered the room that

the list of her medication was self-explanatory but she needed to

complete the assessment nevertheless, as instructed. The client was

struggling with pain and side effects of her medication. The client was a

bit muddled but coherent mostly, and managed to answer all questions.

The client had to take painkillers mid-assessment due to the pain of

traveling so early and sitting so long (approximately 20 minutes). The

client was in so much pain it took her five minutes to stand to relieve the

pain, at which point [the assessor] ended the assessment, stating that she

had enough information to complete the assessment, so client was able

to leave. The client complained of feeling sick due to her medication

throughout the assessment.

0%

2%

20%

59%

13%

7%

Always

Often

Sometimes

Rarely

Never

Don't know

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Finally, assessment providers have the option of carrying out a paper-based

assessment, to minimise the administrative burden, and to avoid clients having

to undergo a face-to-face assessment where it is not necessary. When asked

about the number of clients they had seen who had received a paper-based

assessment, the majority of CAB adviser survey respondents (69%) said that

fewer than one in 20 PIP clients – or less than 5% - receive a paper-based

assessment.

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4. Evidence sought from health care professionals by DWP or assessment

provider at initial claim stage

KEY FINDINGS:

The survey results suggest that GPs and other health professionals spend a

significant proportion of their time providing evidence to the DWP or

assessment provider at the initial claim stage, filling in ESA113 or PIP forms.

CAB advisers, however, presented a different picture. When asked “what

further evidence does Atos request from healthcare professionals, in addition

to the PIP2 and consultation,” 69% of respondents said Atos ‘rarely’ or ‘never’

seeks additional evidence.

The findings also revealed issues with the details provided by GPs through

ESA113 forms.

The survey results suggest that GPs and other health professionals spend a

significant proportion of their time providing evidence to the DWP or assessment

provider at the initial claim stage, filling in ESA113 or PIP forms.

Of the 61 GPs who responded to the survey, 33% (N=20) said that they received

requests from DWP or the assessment provider regarding patients’ benefit claims

between one and five times a week, and 28% said that they received 5 to 10

requests per week. A further 7% (N=4) said they received more than 10 requests

per week.

Despite the reported frequency of the requests, when asked whether they had a

set proportion of time allocated towards providing medical evidence to the

assessment provider or DWP, 79% of GPs said that they did not, compared to

13% who said that they did. When presented with the opportunity to provide

additional comments, nine respondents to the GP survey said that the provision

of medical evidence was time consuming, and some health professionals raised

concerns about the time taken away from time spent with patients:

“Personally, I have completed around 12 PIP forms in the last 6 months

which eats into my time providing appointments for my patients.”

(Community Psychiatric Nurse)

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CAB advisers, however, presented a different picture. When asked “what further

evidence does Atos request from healthcare professionals, in addition to the

PIP2 and consultation,” 19 survey respondents, said Atos ‘rarely’ seek further

evidence in regards to a claim, and six further respondents said that Atos ‘never’

seeks additional evidence (together, they made up 69% of those who answered

the question). The following comment from a bureau tribunal representative

summarises the difficult position this puts clients in:

“Less than 1 in 10 sets of appeal papers contain medical evidence that Atos

has sought themselves. Clients are often very upset or frustrated by this as

they have given the details [of their doctors] and are happy for the medical

professional to be contacted. Moreover a lot of services that can provide

medical evidence are reluctant to give this to the client themselves.” (CAB

adviser)

“[Atos] very rarely seeks further medical evidence, but place the onus on

the claimant to provide this. In South Lanarkshire this presents a problem

as NHS Lanarkshire have advised not to provide their patients with medical

reports unless sought by an authorised body.” (CAB adviser)

These seemingly contradictory findings could be due to the fact that assessment

providers such as Atos Healthcare (for PIP claims) and the Centre for Health and

Disability Assessments (for ESA) only contact medical professionals in relation to

a limited number of cases. This is perhaps why CAB advisers feel it is ‘rare’, but a

large enough number for GPs and other health professionals to feel that it is

time-consuming and contributes to their workload.

The findings also revealed issues with the details provided by GPs through

ESA113 forms. These forms can be hastily completed, with limited details of

conditions or how these conditions affect the individual. Figure 13 below

provides an example of the kinds of cursory notes common on ESA113 forms,

and more than one adviser also commented that GPs may be hesitant to

complete the forms fully if they do not know how a patient’s condition affects

their day-to-day lives:

“Many GP’s are reluctant to complete the tick boxes because they do not

know what the person is like on a day to day basis.” (CAB adviser)

“When a GP completes a form stating that there is “no known” problems or

leaves a section blank, the DWP will often assume that the claimant does

not have any problems in that area. A form may be completed in this way

because the GP does not know the claimant particularly well or may not

have knowledge of the area being asked about” (CAB adviser)

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Figure 13: Example of a completed ESA113 form

Figure 13 shows an example where the GP or nurse has written ‘see

attachments’. Usually attachments include details of the consultation between

the GP and their patient and details of tests and medications.

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5. Appraisal of evidence sought at initial claim stage

KEY FINDINGS:

• The case analysis showed a pattern in which clients receive few points at

initial claim stage and are disallowed the benefit, then request a

reconsideration at which point the decision remains unchanged, and then

appeal the decision and are awarded the benefit in the majority of cases.

• The CAB adviser survey results showed that almost half (48%) of survey

respondents said that, in their experience, DWP decision makers ‘rarely’ or

‘never’ make decisions regarding PIP claims based on an all the available

evidence.

• Some respondents to the GP and health professionals’

survey also raised concerns around the appraisal of

evidence at initial claim stage.

The analysis of the case studies showed that 16 out of 22 clients who appealed

the initial decision about their benefit entitlement had the decision overturned

on appeal. What emerges from the case analysis is a pattern in which clients

receive few points at initial claim stage and are disallowed the benefit, then

request a reconsideration at which point the decision remains unchanged, and

then appeal the decision and are awarded the benefit in the majority of cases.

The CAB adviser survey results showed that almost half (48%) of survey

respondents said that, in their experience, DWP decision makers ‘rarely’ or

‘never’ make decisions regarding PIP claims based on an all the available

evidence38.

38

The question asked was: “In your experience, do you think DWP decision makers make

decisions regarding PIP awards based on a fair appraisal of all the available evidence” and

respondents were able to answer: ‘always’; ‘often’; ‘sometimes’; rarely’; ‘never’; ‘don’t know’.

However, it was not specified whether this meant an appraisal of all evidence in the decision

maker’s possession at the time, or whether it meant all the evidence that might have been

available from other sources.

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Figure 14: In your experience, do you think DWP decision makers make

decisions regarding PIP awards based on a fair appraisal of all the available

evidence?

The following text, taken from correspondence between a Citizens Advice Bureau

and the Tribunals Service, and provided to the researcher to supplement the case

studies, shows concerns that evidence is not being appropriately considered at

the earliest opportunity:

“Our greatest concern is that clients are not being correctly assessed at

Mandatory Reconsideration stage and during medical assessments, which is

evidenced by our success rate of between 60-70% at tribunals in favour of

the client. We have had cases whereby medical evidence was provided at

Mandatory Reconsideration stage and during a medical assessment and

was not taken into consideration. The same medical evidence was then

produced with a submission and we were successful at tribunal.”

(Correspondence between CAB staff and Tribunals Service)

Some respondents to the GP and health professionals’ survey also raised

concerns around the appraisal of evidence at initial claim stage:

“I frequently feel that medical evidence from those who know the patients

really well is ignored in initial assessments undertaken by ATOS and

considered only at appeal. The stress this causes the patients is immense

and in cases it can lead to deterioration in their health. I would say that as

much as 5-10% of my time is spent with patients discussing their anxieties

regarding benefits and the possibility of losing them.” (Consultant Clinical

Neuropsychologist)

0

3%

48%

43%

5%

2%

Always

Often

Sometimes

Rarely

Never

Don't know

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“It would be helpful for DWP to clarify that a letter from a GP about

someone's disabilities is completely disregarded.” (GP)

“We would welcome details from DWP as to what evidence is accepted by

them at each stage to stop unnecessary GP work if not accepted/required.

Also clarify this to the patient prior to approaching GP.” (GP)

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Mandatory Reconsideration stage

KEY FINDINGS:

• Many clients experience barriers when obtaining evidence at Mandatory

reconsideration stage, including tight timescales, physical and mental

health conditions, as well as financial barriers.

• Respondents to the CAB adviser survey raised concerns

about there being no proper reconsideration of the original

decision, and decision maker bias.

The analysis of the case studies suggests that it is more common for clients to

send medical evidence at Mandatory Reconsideration stage, but the one month

timescale for submitting a Mandatory Reconsideration request can mean it is

difficult to gather supporting evidence, especially if the client cannot book a GP

appointment within the timeframe. When asked whether one month was

enough time to gather relevant medical evidence in support of their initial claim,

80% of CAB adviser survey respondents said that one month was ‘rarely’ or

‘never’ enough time.

“Unfortunately the majority of cases are not successful at mandatory

reconsideration without medical evidence (and more than 50% are won at

tribunal).” CAB Adviser

“There is not enough time to get supporting evidence [at mandatory

reconsideration stage]. The onus is on the client but a lot of health

professionals will not supply a letter unless it is requested. Clients are

disadvantaged as they feel they are not believed so need to get medical

evidence but are unable to do so.” CAB Adviser

Clients can experience other barriers in accessing medical evidence to support

Mandatory Reconsiderations, including barriers associated with poor physical or

mental health. The case extract below provides an example of where a client has

failed to gather medical evidence because he is agoraphobic, has difficulties

communicating, and does not have an existing relationship with his GP.

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Case extract:

The client has received his mandatory reconsideration notice which

indicates that he did not provide further medical evidence. The client was

unable to get medical evidence, firstly because he is agoraphobic and has

difficulties communicating and he did not feel able to request the

evidence and also because he does not engage with medical services as

he previously had a bad experience with doctors and has a gap in his

medical history of about 22 years.

Medical evidence was requested by the DWP but because of the issues

stated above the form was not filled in and instead just stated that the

client was not known to the doctor so he could not complete the medical

form requested. The client has called his doctor to ask why no information

was given and was told that the wrong doctor completed this.

Client has had an occupational therapist report completed and has called

to ask them to make some adjustments as the information he received he

felt was incorrect. Again, he found this assessment difficult due to

communication issues.

The cost of medical evidence can also present a barrier at Mandatory

Reconsideration stage, as the following case study extract demonstrates.

Case extract:

Client called the office today to advise he had received contact from the

MP's Office and had spoken to a member of staff there. She had advised

him that he needed to provide medical supporting evidence for his claim.

The client told her that he had already provided a GP letter which had cost

him £18 and that he could not financially afford to try to obtain further

medical evidence at this time and also that apart from his GP he has no

other specialist input. She then advised him that his MR was with a

decision maker and they would look at reconsideration and notify him in

due course.

GPs and health professionals are also sometimes reluctant to provide patients

with evidence to support a Mandatory Reconsideration, believing that it is not

their role, and that the DWP will contact them if further evidence is required.

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Case extract:

The client called to explain that her doctor would not supply any medical

evidence for the client’s mandatory reconsideration as ‘the DWP would

contact the doctor if information is needed’. The client is now worried as

the DWP have not contacted the doctors’ surgery. I advised her to get a

print out of consultation letters and possibly her patient record.

In some cases, the DWP will contact the GP or health professional regarding a

reconsideration of the initial decision. However, one health professional

commented that they were sometimes approached by DWP regarding conditions

that they had not provided information about. This health professional

specialises in mental health, but was sometimes asked about the impact of

physical conditions.

“I find it very frustrating that I provide supporting evidence, via letter,

regarding the mental health of the service user then I sometimes get calls

from the DWP requesting information about physical health. Some things I

can answer but for the most part not. I don't mind being contacted to

clarify things in my letter but not to ask questions that are answered in my

letter already.” (Community Mental Health Team)

Some case notes suggest that Mandatory Reconsiderations are more likely to be

successful if medical evidence is present (see below), and the high success rate

at appeal, where medical evidence is much more common, does suggest that

presence of medical evidence tends to yield better results for the claimant. If,

however, many clients experience the barriers outlined above, including tight

timescales, physical and mental health conditions, as well as financial barriers, it

raises questions around the accuracy of decision making at Mandatory

Reconsideration stage, when the decision makers may not know the full extent

of a claimant’s conditions.

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Case extract:

CAB called the DWP to ask what stage the claim was at, as the client

thought he had already asked for the decision to be reconsidered. The

reconsideration has begun, but no evidence has been sent, so I agreed I

would send this evidence to support the reconsideration with a brief

covering letter as client has already started the process. The DWP phone

handler took note of this on their system and they will wait for this

evidence before making a decision.

I called the client’s doctor who was very keen to support the client with

medical evidence so I explained to the doctor what may help support his

claim… Agreed with client he would hand this evidence in and I would

send on to the DWP.

The client called to say that the Mandatory Reconsideration was

successful and he has been awarded the mobility component at the

enhanced rate. ………. ……………………………………………..

When CAB adviser survey respondents were asked what experience PIP clients

have of the mandatory reconsideration process, 31 provided comments:

• Eight respondents said they thought the mandatory reconsideration process

is a ‘lengthy process’ and one mentioned having waited a year for a decision;

• Seven respondents said that the mandatory reconsideration process is

‘stressful’ or ‘upsetting’ for clients;

• Four said they thought the process was ‘daunting’ or ‘difficult’ for people to

undergo without support and a further two respondents mentioned clients’

‘lack of understanding’ of the process;

• Five responses included that clients feel that there is no proper

reconsideration of the original decision, merely a ‘rubber stamping’ of the

original decision;

• Five respondents mentioned that it is difficult for clients to gather medical

evidence in support of a Mandatory Reconsideration request and two

mentioned that there is little time for the client to prepare;

• And, finally, two respondents mentioned that they thought the decision

makers were biased towards the Atos Healthcare Professional’s report, and

one respondent used the word ‘unfair’ to describe the process.

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Appeals stage

KEY FINDINGS:

It is much more common for supporting medical evidence to be provided at

appeal stage, and for advisers and representatives to be involved in gathering

this evidence.

Appellants can, however, experience barriers at appeal stage too. The case

studies showed evidence of GPs refusing to provide evidence because they

have a policy to only provide this to the DWP.

Analysis of the case studies suggests that it is much more common for

supporting medical evidence to be provided at appeal stage. This is likely to be

for several reasons: firstly, there is a shared understanding between the DWP,

GPs and the BMA, clients and HM Courts and Tribunals Service that the onus at

this stage is on the client and the client’s representatives to gather any relevant

medical evidence. Secondly, there is a much longer timescale during which to

gather medical evidence, and clients can have weeks and months to provide

their submission; thirdly, if the client is being represented by a third party such as

an advice or advocacy organisation, the representative is likely to play a more

active role in the gathering of supporting evidence at this stage. The case studies

would bear this assertion out, with several cases showing evidence of CAB

advisers gathering medical evidence on clients’ behalf.

Appellants can, however, experience barriers at appeal stage too. In addition to

the financial barriers of paying for supporting evidence, the case studies showed

evidence of GPs refusing to provide evidence because they appear to have a

policy to only provide this to the DWP.

Case extract:

GP has refused to provide medical evidence in support of her ESA appeal

as “the DWP will ask for it if they want it”; request to Occupational Health

for additional information was also refused.

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Case extract:

Telephone call with Practice Manager at Medical Practice. She advised

that [the client’s GP] can only provide medical evidence to the DWP when

requested in their specific format. Therefore she cannot provide client

with supporting evidence [for her appeal].

The GP survey results also reflect this, as 79% of respondents (N=49) said they

had established policies, either in principle or in writing, in regards to provision of

evidence direct to the DWP, and comments in response to the survey suggested

some GPs prefer to provide evidence direct to the DWP rather than the patient.

It should be noted that health professionals provide medical evidence direct to

the DWP at the initial claim stage and at Mandatory Reconsideration stage; it is

not common at appeal stage. However, GP surgeries are within their rights to

refuse to provide any further information to the patient at appeal stage, as is

specified in the British Medical Association guidelines. And, indeed, this research

has found one GP surgery in Scotland that states quite clearly on its website that

it is ‘no longer able’ to provide letters in support of appeals:

“We wish to advise patients that the practice is no longer able to issue

letters of support for appeals for the Department of Work and Pensions.

We are sorry for any inconvenience caused.”

Analysis of the case studies has shown at least three occasions (out of 23) where

the First Tier Tribunal has been adjourned in order for the HM Courts and

Tribunals service to gather sufficient medical evidence to make a decision.

Despite the low number, this is relevant given that the appeal submission

includes all evidence that had been available to the DWP Decision Maker, and

that the Decision Maker had deemed that evidence sufficient to make a decision

on the claimant’s eligibility.

On some occasions, the DWP change the decision prior to an appeal being held.

This occurs if the submission papers are received by the DWP and the Decision

Maker judges there to be adequate evidence to overturn the decision and to not

have to go to appeal. This research found evidence of this occurring in at least

two of the case studies. Again, this is noteworthy as it suggests that the decision

may have been different at an earlier stage if all the medical evidence were

available.

Finally, the differences between DWP decision making procedures and the First

Tier Tribunal is most striking in cases where the individual has received no points

at the initial claim stage, no points at the Mandatory Reconsideration stage, and

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then enough points at appeal stage to place them in the support group for

Employment and Support Allowance (higher rate of benefit and least

conditionality) or judged them eligible to receive the higher rate of Personal

Independence Payment. Below is a case extract that provides full details of a

client’s appeal and subsequent reassessment.

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Case extract:

8 July 2011: The client [who had previously been in receipt of ESA] needed

assistance filling out her new Limited capability for work questionnaire

(ESA50) form. The client suffers from widespread osteoarthritis, soft tissue

rheumatism, fibromyalgia, Raynaud’s disease, planter fasciitis, irritable

bowel syndrome, spinal stenosis (trapping both sciatic nerves), and hiatus

hernia. The client is easily stressed and upset, gets frustrated easily and

has very poor concentration; thoughts of suicide.

21 March 2012: The client phoned to say that she has received a phone

call from Job Centre Plus on Saturday morning informing her that she will

no longer get ESA as she has “been on it too long” and that “she would

not be entitled to any other benefit apart from DLA”. Client wanted to

know what to do.

11 July 2012: The client has received the Mandatory Reconsideration

decision notice stating that the client does not fit the support group

criteria. The client wishes to appeal.

14 February 2013: ESA appeal successful: the client was placed in support

group: schedule 3 descriptor 1.

14 March 2013: Client received an ESA3 10/12 with the words "ESA

Maintenance. ESA(C) Exhausted, Customer Won Appeal" hand written on

the front. The client contacted Jobcentre Plus regarding this as she did

not understand why she was receiving a renewal form, when she has just

won her appeal on the 14th Feb 2013 and they stated that client would

have to fill in the form and send it back to them this week as her

contribution based ESA has stopped due to time limits and that she would

have to claim income based ESA in order to continue to receive her

benefits. Informed client that she has been issued this form in error.

21 March 2013: Backdated payments of £4,842 due to client will be in her

account next Tuesday and that she will be in receipt of ESA - Support

group payments as of the 1st April = £213 a fortnight.

1 April 2016: Client requested assistance to complete her ESA50

[reassessment].

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Certification of fitness for work

KEY FINDINGS:

It is not always clear whether it is the GP or the DWP who has the authority to

certify that an individual is unfit for work.

CAB case evidence suggests that Fit Notes can sometimes be lost in the

Department’s own mail handling systems.

The design of the system whereby a GP provides certification that someone is

unfit for work also has the potential to lead to a ‘revolving-door’ scenario of

transferring from JSA to ESA.

When a client has undergone a Work Capability Assessment, the DWP will send a

‘Work Capability Assessment Outcome Notification’ letter to the GP in question,

informing the GP of whether the client has been placed in the support group, the

Work Related Activity group, or been found capable of work. Through this

research CAS saw examples of these letters, and the text has been provided (see

figure 15).

Figure 15: Example of Work Capability Outcome Notification

As can be seen, the letter to the GP reads “you do not have to give your patient

any more medical certificates for Employment and Support Allowances purposes

unless they appeal against this decision”. It is clear that the DWP is making

efforts to ensure that everyone engaging with the client is aware of the outcome

of the assessment, but CAS is concerned that the GP who, up until this point, has

been the executive voice regarding the patient’s fitness to work, is now being

asked to accept the decision made by the DWP, even if they disagree.

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The DWP guidance to GPs, however, states that “If you assess that your patient’s

health affects their fitness for work, you should give them a fit note indicating

whether your patient is not fit for work OR may be fit for work”39 and makes no

mention of whether or not GPs should continue to provide Fit Notes following the

DWP’s decision. This has been known to cause confusion to clients (and at times,

their doctors) who have been used to GPs having the authority to ‘sign them off’

as sick.

Case extract:

17 January 2017: Client broke his wrist in a motorcycle accident in

February 2016 which he is still getting surgery for. At his assessment he

was judged to be fit for work. For some reason he was told that he could

not appeal decision. He then went to his local MP’s office which has put in

a Mandatory reconsideration on his behalf.

1 February 2017: The DWP had instructed the client to open a new claim

for JSA, despite him still being signed off sick by his Doctor, but when he

had tried to do this he had been told that he would not be able to do so,

as he was still signed off sick. He had eventually managed to open a new

claim for JSA (17th Jan) but, according to the client, had been told at the

Jobcentre that he would not receive any payments as he was still signed

off sick. The client stated that he had also tried to get another up-to-date

sick line from his Doctor, but had been told by the receptionist at his

surgery that the DWP had written to the Doctor telling them that he was

not to get any further sick lines. The client wanted to know if the DWP had

the right to tell his Doctor not to issue anymore sick lines and what his

rights were to challenge this.

In some cases, GPs do continue to issue Fit Notes following a work capability

assessment decision, and CAS has seen evidence of where the Jobcentre are

unwilling to accept these, even when the client has decided to appeal the

decision, as the case below demonstrates.

39 DWP, Getting the Most Out of the Fit Note, Guidance for GPs, December 2016, page 7. Available

here: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/465918/fit-

note-gps-guidance.pdf

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Case extract:

The client is looking for some help to submit the ESA Mandatory

Reconsideration - she also has a GP support letter and a sick line.

The client [previously on ESA, but found capable of work following a WCA]

has now claimed Jobseekers Allowance (JSA) again and is struggling with

the mandatory work search and training. She is very anxious and as

stated previously has learning difficulties which makes it very difficult for

her to learn new tasks and she is unable to do the auxiliary work she

previously did due to mobility problems since she had a hip replacement.

The client had taken her sick line to the Jobcentre Plus adviser when

signing on and they stated that this was not sufficient for her to be let off

mandatory work activity. ………. ……………………………………………..………...

CAB evidence has shown that the processing of Fit Notes can create problems for

clients, including gaps in payments. There are a number of steps in the journey

that fit notes must take in order to be logged by the DWP and for payment to be

made to those on ESA, as Figure 16 demonstrates.

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Figure 16: Journey taken by Fit Note

Firstly, the DWP contacts the individual when they are due to provide an up-to-

date medical certificate. These letters are generated automatically. However,

there are occasions when this message does not reach the claimant – for

example, because the claimant has moved house – and occasions when the

claimant is unable to act on the information due to literacy, language, physical

or mental health barriers.

The claimant then has two more potential barriers to overcome: one is to obtain

the medical certificate from the doctor within a given period of time, and the

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second is to get the medical certificate to the relevant department within the

DWP.

“The letters that request the individual to send in a Fit Note are sent out

generically. This causes problems for clients if the client can’t get an

appointment easily at the GP practice. It causes clients anxiety if they

cannot get an appointment before the Fit Note runs out.” (CAB adviser)

The Fit Note must then go from the client to the correct department within DWP

via one of two routes: the client can send the Fit Note to the centralised Mail

Handling Site themselves (based in Wolverhampton), or they can bring the Fit

Note to the Jobcentre, who will check it and send it to the Mail Processing Centre.

The Fit Note then must be sent back from the Mail Processing Centre to the

relevant Benefit Delivery Centre (based in Scotland). CAB case evidence suggests

that medical evidence can sometimes be lost in the Department’s own mail

handling systems.

Case extract:

The client came to the bureau with a fit note (dated 10 June 2016; cover

starting from 22 April 2016) - this is for submission to the Jobcentre Plus

or Clydebank Benefit Delivery Centre as supporting evidence for the claim.

The client advised that he had submitted a fit note to the Jobcentre

recently but there was difficulty in this being forwarded by email. This

client leads a chaotic lifestyle and is experiencing difficulties engaging

with DWP. The client has no income and required a referral for a food

parcel.

The concern is that if any of these barriers prevents the DWP from receiving an

up-to-date medical certificate from the individual in question, then they may

experience a gap in payments. Given that ESA and Universal Credit are income

replacement benefits, this leaves the individual with no income whatsoever. CAB

across Scotland have seen many clients who have presented at the bureau with

their ESA payments having stopped due to an absent medical certificate.

Case extract:

The client has sent off a new sick line for his ESA claim, and was expecting

a payment today. However, when he called the DWP, he was advised that

his sick line had not been processed and that he would not get a payment

until it did. The client sent it at the end of last week. He wanted to know if

he could get a food parcel to tide him over until his payment is made. He

has a 17 year old son living with him.

While gathering evidence for this report, a number of issues were mentioned by

CAB advisers and other professionals as potentially creating difficulties, though it

cannot be said how often these occur. These include:

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• When a customer is posting a fit note themselves, the fit note will go to a

central mail processing site in Wolverhampton, then to the local Benefit

Delivery Centre. This can take a considerable amount of time.

• On occasion, inaccurate information is included on a fit note, for example, the

address included on the fit note is that which is held by the GP practice. If the

patient has moved house since they registered, the GP practice has the wrong

address. This does not match the details held by the DWP and the fit note is

rejected.

• Where inaccurate information has been provided, some clients try to amend

the fit notes themselves, with the consequence that they are invalid, and are

rejected by the DWP.

• On some occasions GPs have been known to write down a diagnosis that is

not strictly medical, for example “homelessness”, again with the

consequence that they are invalid.

Citizens advice bureaux, when the client is vulnerable, will often take a scanned

copy of the Fit Note and also post the certificate by recorded delivery.

“Some JCP staff stated that this does not speed up the process whilst others

indicated that it does. However, it has proved invaluable as we have been

able to prove and provide evidence that certificates have been sent when

DWP have closed claims as they state that they have never received them.

We can argue that they have been received and can state when it was

delivered.” (CAB adviser)

The design of the system whereby a GP provides certification that someone is

unfit for work also has the potential to lead to a ‘revolving-door’ scenario of

transferring from one benefit to another.

If someone is in receipt of JSA, they are allowed two short term periods of

sickness of up to 14 days each and one extended period of sickness up to 13

weeks. If the sickness period extends even a day beyond this amount of time,

the individual is no longer entitled to JSA and must instead make a claim for ESA.

If a GP misunderstands and assumes ‘13 weeks’ is the equivalent of ‘three

months’, he or she may sign-off a patient for three months. But, three months is

frequently longer than 13 weeks, meaning that even though the intention was to

only sign them off for a short period of time, the fit note has had the unintended

consequence of making the individual no longer eligible for JSA. Furthermore,

when that individual makes a claim for ESA, they are likely to be found fit for

work, and must go back to claiming JSA, a process which can cause a disruption

in payments.

Under Universal Credit this ‘revolving-door’ between different benefits has

largely been designed-out. However, the confusion between 13 weeks and three

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months may still remain a problem because a sickness absence that is longer

than 13 weeks will, under Universal Credit, still trigger a Work Capability

Assessment.

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Impacts on clients

KEY FINDINGS:

Receiving an inaccurate decision when first assessed can have detrimental

financial and health impacts on CAB clients.

Clients must manage on less, despite incurring the same costs related to their

health condition or disability, such as having to travel by taxi.

Disputed benefits not being payable pending the mandatory reconsideration

process can lead to acute income deprivation for some clients.

The stress of undergoing the assessment and appeals process can have

negative impacts on mental health.

Financial detriment

There are three ways in which clients can experience financial losses as a result

of the issues discussed in the previous section on decision making. Firstly, if they

appeal a decision and the Tribunal judges the client to be entitled to the benefit,

their award will be back-dated to the time of the original DWP decision. This

means that, during the period of time that the client was challenging the

decision, they should have been entitled to the benefit and receiving payments.

The client may have incurred costs related to their illness or disability during this

time, for example, if they had to use taxis to access services. As an illustrative

example, one client represented in one of the case studies received back-dated

benefit of £4,842. This means that the client had to manage on £4,842 less

money that she was entitled to during the time that she was appealing the

decision.

The second point at which a client can experience financial detriment is during

the Mandatory Reconsideration stage. While the DWP reconsiders the decision,

the disputed benefit is not payable. This becomes a problem when the benefit

being disputed is Employment and Support Allowance, an income-replacement

benefit. When ESA payments stop, the claimant may not have access to any

other funds to cover living costs. The DWP recommend that clients claim

Jobseekers Allowance pending their reconsideration notice, but CAS evidence

suggests there can be administrative problems in relation to this.

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These include cases where clients are told by DWP staff that they cannot claim

JSA because they are ‘unfit for work’ and should instead be claiming ESA; and

cases where there is a delay in processing the JSA claim, meaning that claimants

experience a period of no income while they await their reconsideration notice.

This is a common experience of CAB clients, and research carried out by CAS in

2016 on the causes and impacts of periods of no income found mandatory

reconsideration to be one of the most common causes.40 The case extract below

provides an example of where the client has experienced difficulty claiming JSA

pending the reconsideration of his ESA decision, but also demonstrates the

knock-on impact this situation can have on Housing Benefit payments.

Case extract:

3 May 2016: Client attended appointment as agreed. He was refused ESA

on the 25th of April 2016 scoring 0 points.

16 May 2016: He has an appointment with the Welfare Rights Officer on

Thursday at 10am to request a Mandatory Reconsideration. The client

wanders off and appears at times not to follow the conversation to its

conclusion. The client has some food in his fridge and his freezer which

should last him for four or five days.

Advised client to claim JSA and a crisis grant and advised him that he

would need to wait to see a generalist adviser re this.

1 June 2016: Client attended bureau and advised that he had been

awarded a crisis grant of £100 as a result of our help last week but that he

still had not received any payment of JSA (applied for pending his ESA

mandatory reconsideration) and has been without funds since 27th April.

He is stressed out about his mounting debts and doesn't know what to do.

The CAB contacted DWP JSA department to determine status of claim and

was advised that this was bouncing about between ESA and Jobcentre:

ESA claim client is fit for work; Jobcentre claim he is not fit and citing

potential for basis of extended period of sickness. The call-handler advised

that this should have been subject to clerical/manual processing and has

escalated this to the regional centre asking for either same day payment

or short term benefit advance.

2 June 2016: Client attended the CAB requesting advice after receipt of

letters from the Council. The letters were Terminations of Housing Benefit,

40 Citizens Advice Scotland, Living at the Sharp End: CAB clients in crisis, July 2016. Available from:

www.cas.org.uk/publications/living-sharp-end

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Council Tax Reduction and Cancellation of Discretionary Housing Payment.

The client had previously been in receipt of ESA but this has been stopped.

The CAB is dealing with the Mandatory Reconsideration (see previous

entries). The client was previously advised to apply for JSA and received a

text message yesterday confirming his award and first payment of

£292.40.

The third way in which someone can experience financial losses is in relation to

the fees charged for provision of medical evidence when a claimant is

challenging a decision. These fees can vary widely, from £10 to £75, but it is also

important to note that if clients are unable to obtain supporting letters from GPs

then their only option for providing medical evidence may be copies of medical

records, at a charge of £40.00.

In addition to the issues already raised, many of the clients undergoing the

appeals process are also experiencing financial hardship as a result of other

benefits-related issues, debts and rent arrears, low pay or other crises or

emergencies. Of the cases analysed, at least eight of them showed evidence of

periods of acute income deprivation where the client did not have any food or

enough money to pay for fuel.

Case extract:

7 July 2016: Client seemed vulnerable and became very tearful whilst we

were chatting, he mentioned that he had not eaten for three days

18 July 2016: The council had not helped at all in regard to his benefits

and he still had no money. Lesley had managed to get him £17 as they

were conscious of him having no income and would not be able to get in

touch with them via his mobile.

Case extract:

The client has no money to live on. At the moment she is not on any

benefit, cannot pay rent, council tax, utility bills, food etc. and has no

other income.

Physical and mental health

The analysis of the case studies showed some evidence of the impact of the

assessment and appeals process on clients’ mental and physical health. In two

cases, clients mentioned suicidal thoughts. Although there were not enough

examples to draw any conclusions, it appeared to be cases where the client had

been assessed and reassessed a number of times in the space of a few years

that showed the most evidence of a detrimental impact of this process on

mental health.

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Case extract:

The client requested assistance to complete her ESA50. The client states

that the stress of the benefits process has deteriorated her health and she

feels suicidal, client has informed her GP, family etc. that if this claim is

not successful she will be unable to fight the decision and plans to end her

life.

As mentioned previously, some respondents to the GP and health professionals’

survey also raised concerns about the impact that the assessment process and

appeals have on their patients’ health:

“I frequently feel that medical evidence from those who know the patients

really well is ignored in initial assessments undertaken by ATOS and considered

only at appeal. The stress this causes the patients is immense and in cases it

can lead to deterioration in their health. I would say that as much as 5-10% of

my time is spent with patients discussing their anxieties regarding benefits and

the possibility of losing them.” (Consultant Clinical Neuropsychologist)

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Information available to claimants

KEY FINDINGS:

Limited information is available to clients regarding what support they can

expect from health professionals in relation to benefit claims.

The results from the online mapping exercise showed that at least 25 (31%) of

the 81 GP practices for which data was gathered had no information on their

website in relation to medical evidence, while 64 GP practices (79%) provided

information about certification of fitness for work.

Very few practices provided a list of fees charged for providing letters, and

they tended not to detail whether these referred to letters related to benefit

claims.

Citizens advice bureaux who participated in the project carried out an online

mapping exercise, which gathered data on what information was available to

patients on the websites of just over 100 GP practices and NHS services in the

fourteen locations. They looked at whether the websites provided information on

policies or processes in relation to:

1. Medical certificates/ ‘Statements of Fitness for Work’/ ‘Fit Notes’ / ‘Med 3s’

2. Medical evidence provided to the DWP/assessment provider

3. Additional medical evidence provided direct to benefit claimants

4. Charges for providing medical evidence in support of benefit claims

The results showed that at least 25 (31%) of the 81 GP practices for which data

was gathered had no information in relation to any of the four points above. The

research found 54 GP practices (79%) that provided information about

certification of fitness for work. This, for the most part was standardised text as

follows:

“Self-Certificate: If you have been sick for more than four days in a row,

but less than seven, you can self–certify your illness using a SC2 form. You

can obtain this form from your employer or by visiting the HMRC website

[links to GOV.UK website]. If you are unwell for more than four days you

are advised to arrange an appointment to see a Doctor to assess your

fitness to work.

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“Statement of Fitness for Work: The Doctor will provide you with a

Statement of Fitness for Work (‘Fit Note’) if you are still not well enough to

work. Your employer will most likely request this statement as evidence to

support payment of Statutory Sick Pay (SSP). Further information is

available at the Direct.Gov website [link provided].”

It was less common for GP practice websites to contain information about letters

or reports they could access themselves; 55 (71%) of the 77 websites for which

information was provided were found to contain no information about letters or

reports that a patient could request themselves. Where websites did contain this

information, it tended to be standardised text as follows:

“Non-NHS Services: Some services provided are not covered under our

contract with the NHS and therefore attract charges. Examples include the

following:

• Medicals for pre-employment, sports and driving requirements (HGV,

PSV etc.)

• Insurance claim forms

• Prescriptions for taking medication abroad

• Private sick notes

• Vaccination certificates

The fees charged are based on the British Medical Association (BMA)

suggested scales and our reception staff will be happy to advise you about

them along with appointment availability.”

However, the research also found two websites that featured an alternative and

out of date version of this text, which makes reference to the DSS (Department of

Social Security) which no longer exists:

“Non-NHS Services: We are able to offer a range of services not covered

under NHS treatment. This includes:

• Completing insurance forms

• Medicals for work, driving and insurance companies

• Reports for lawyers and DSS

• Completing holiday cancellation forms

Many of these services incur a fee - details of these are available at

reception.

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Please note that these forms will not be completed during a routine

consultation with the doctor.”

Very few practices provided a list of fees charged for providing letters, and they

tended not to detail whether this referred to letters related to benefit claims. In

many cases, where there was information about the charging of fees, reference

was also made to British Medical Association guidelines. An example is provided

below:

Figure 17: Information provided on GP practice website

Source: Medical practice website

Several websites were found to have information about a patient’s statutory

right to access their medical records. Again, this tended to be standardised text:

“In accordance with the Data Protection Act 1998 and Access to Health

Records Act, patients may request to see their medical records. Such

requests should be made through the practice manager and may be

subject to an administration charge. No information will be released

without the patient consent unless we are legally obliged to do so.”

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Finally, it was found to be very rare for a website to provide information about

evidence that would be provided directly to DWP or the assessment provider. The

research yielded only one result where the website provided information about

evidence provided direct to the DWP, and this was in relation to charges payable

by the DWP for disability benefit reports.

Figure 18: Information provided on GP practice website

Source: Medical practice website

In summary, some information is available to patients about certification of

fitness to work, and non-NHS services such as access to medical records and

letters, but there is not consistent access to information, and it is not always

clearly communicated to the patient whether or not they can expect their GP to

write a letter in relation to their benefit claim or appeal. There is even less

information available on what charges this kind of letter might incur.

Comments in response to the GP and health professionals survey which suggest

that GPs and other health professionals find this work time consuming and

detracts from time spent with patients is perhaps an indication of why this

information is not widely accessible. It may be that GP practices are reluctant to

advertise these services out of concern that they may receive an increase in

requests.

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Conclusions

1. Different Government departments and public sector services have

different responsibilities and interests in relation to assessment of ill

health and disability benefits. At times these are not clearly aligned.

• The DWP has a responsibility to ensure that public money is protected, and

benefits provided to those who meet the eligibility criteria. For this reason,

the Department requires robust evidence to demonstrate that a claimant

meets the eligibility criteria.

• DWP decision makers and Dispute Resolution Teams have an interest in

gathering as much evidence as possible at an early stage so that they can get

the decision right first time.

• HM Courts and Tribunals Service also has an interest in robust evidence being

gathered at initial claim stage or mandatory reconsideration stage, in order

to reduce demand for independent appeals. However, if a case does reach

appeal stage, HM Courts and Tribunals Service has an interest in there being

adequate evidence submitted in order for the Tribunal to make the right

decision.

• Independent advice and advocacy organisations have an interest in seeking

medical evidence from health professionals in order to best represent their

clients.

• Assessment providers, contracted by DWP, have an interest in gathering

robust evidence from GPs (ESA113 and PIP forms) in order that they can

accurately assess the individual. However, they have limited resources that

must be carefully managed, and therefore do not request medical evidence

from GPs in every case.

• GPs are primarily concerned with the health of their patients, and the

resources at their disposal. They experience demands from the DWP,

patients, advice and advocacy organisations to provide details of patients’

conditions and how these conditions impact on their everyday lives. GPs,

however, may not have frequent contact with the patients in question, and

do not always feel qualified to make a judgement regarding how conditions

are experienced by the individual.

• The British Medical Association is primarily concerned with protecting the

workload of GPs and other health professionals; making sure they are not

working for free; and ensuring that GPs are able to focus on medical rather

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than non-medical work. In order to do this, they issue guidance about how to

respond to requests from the DWP or patients regarding benefit claims.

These responsibilities and interests are equally valid and important, but makes

for a system in which the claimant can receive mixed messages, and means that

there is not always the same degree of evidence available at the initial claim

stage as there is at the appeal stage.

Related to this, it is not always clear whether it is the GP or the DWP who has the

authority to certify that an individual is unfit for work. When a client has

undergone a Work Capability Assessment, the DWP will send a ‘Work Capability

Assessment Outcome Notification’ letter to the GP in question, which reads “you

do not have to give your patient any more medical certificates for Employment

and Support Allowances purposes unless they appeal against this decision”. The

authority for certifying whether someone is fit or unfit for work has thereby

transferred from the GP to the DWP and it is of concern that the GP who, up until

this point, has been the executive voice regarding the patient’s fitness to work, is

now asked to accept the decision made by the DWP, even if they disagree.

2. The findings suggest that, in many cases, not enough information is

available to decision makers at initial claim stage, or at Mandatory

Reconsideration stage to make fully informed, accurate decisions.

The findings of this research suggest that this is due to the following

factors:

• The DWP and assessment provider does not always request evidence from

GPs or other health professionals at initial claim stage and those claiming

benefits are told to only provide information they have to hand, such as

prescriptions.

• The forms that the DWP or the assessment provider requests GPs to fill in at

the initial claim stage – the ESA113 and PIP forms – can lack detail.

• The timescale at Mandatory Reconsideration stage does not allow enough

time to gather supplementary evidence, compared to the much longer

timescales at appeal stage.

• GP practices sometimes refuse to provide supporting medical evidence direct

to claimants, or may charge fees which can act as a financial barrier for

claimants.

• Advice and advocacy organisations are more likely to be involved in gathering

further medical evidence at appeal stage than at Mandatory Reconsideration

or initial claim stage.

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3. Receiving an inaccurate decision when first assessed can have detrimental

financial and health impacts on CAB clients.

• Clients must manage on less, despite incurring the same costs related to their

health condition or disability, such as having to travel by taxi.

• Disputed benefits not being payable pending the mandatory reconsideration

process can lead to acute income deprivation for some clients.

• The stress of undergoing the assessment and appeals process can have

negative impacts on mental health.

4. Limited information is available to clients regarding what support they can

expect from health professionals in relation to benefit claims.

• The results from the online mapping exercise showed that at least 25 (28%)

of the 81 GP practices for which data was gathered had no information on

their website in relation to medical evidence, while 64 GP practices (67%)

provided information about certification of fitness for work.

• Very few practices provided a list of fees charged for providing letters, and

they tended not to detail whether these referred to letters related to benefit

claims.

5. The processing of Fit Notes can create problems for clients, including gaps

in payments.

• CAB case evidence suggests that Fit Notes can sometimes be lost in the

Department’s own mail handling systems.

• The design of the system whereby a GP provides certification that someone is

unfit for work also has the potential to lead to a ‘revolving-door’ scenario of

transferring from JSA to ESA.

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Policy implications

This report has concluded that improvements could be made to how incapacity

and disability benefits are assessed, and the role that medical evidence plays in

the system. As was stated at the outset of the report, the degree to which a

social security agency must rely on independent assessment and medical

evidence is dependent upon the degree to which the individual is deemed

capable of accurately assessing their own needs. Our research has shown that

accuracy of decisions could be improved by more evidence being gathered at an

earlier stage of the claim. This could also include taking better account of

evidence provided through the individual’s self-assessment, and the evidence

provided by friends, family and carers who see how an individual’s condition

affects their ability to carry out everyday activities.

Under the current system, Further Medical Evidence is gathered in some, but not

all cases. If this means the decision maker has inadequate evidence to make an

accurate decision, and the claimant decides to appeal the decision, the onus and

financial burden of gathering this medical evidence then transfers to them.

Furthermore, this creates a tension between the claimant, the claimant’s

representatives, those in the health profession and the DWP, all of whom view

the role and responsibilities of GPs and other health professionals slightly

differently. GPs have limited time to provide detailed reports at the initial claim

stage, and if they provide supporting evidence at appeal stage, this can impact

on their workload, resources, and the time spent with patients.

There are a number of upcoming opportunities to improve and refine the way in

which medical evidence is gathered and treated within the benefits system. In

relation to Employment and Support Allowance (and Universal Credit), the UK

Government’s Work and Health agenda poses an opportunity to revisit the way

in which Work Capability Assessments are carried out, and to improve data

sharing between the NHS and the DWP. In addition to this, the new digital

platform for Universal Credit may present opportunities for sharing

documentation such as Fit Notes in a more timely and straightforward manner.

With regards to disability benefits, the UK Government’s consideration of the

recently published Second Independent Review of Personal Independence

Payment presents an opportunity to rethink the way evidence is gathered and

assessed. And, last but by no means least, the devolution of disability benefits to

Scotland presents an important opportunity to design a disability benefits

system that considers new ways of assessing eligibility for the new Scottish

benefits.

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Solutions to the issues raised in this report are not straightforward, and can only

be reached with careful consideration and joint working between each relevant

government department and agency involved in the process. Citizens Advice

Scotland sees the impacts of decision making and the appeals process on CAB

clients, and although we do not purport to have all the answers, we hope that we

can be part of an ongoing conversation around improvements that benefit the

DWP, GPs, the NHS, HM Courts and Tribunals Service, and most importantly, those

in need of benefits.

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Appendix 1

Personal Independence Payment CAB Survey

The responses to this survey were collected online via SurveyMonkey.

About you and your CAB

1. Name of participating CAB

2. What is your role within the CAB?

3. In the last six months, approximately how many clients have you advised

regarding a PIP claim?

Section 1: Processing and administration

Thinking back over the last six months:

4. In your experience, what is the average waiting time for receiving a

consultation with Atos after having completed and returned their PIP1 form?

a) Less than one month

b) Between one and three months

c) Between three and six months

d) Between six and nine months

e) Between nine months and a year

f) More than a year

5. In your experience, what is the average waiting time for clients receiving a

decision regarding their PIP award following a consultation with Atos?

a) Less than two weeks

b) Between two and three weeks

c) Between three and four weeks

d) Between four and six weeks

e) Longer than six weeks

6. In your experience, what number of clients do you estimate undergo a paper-

based assessment as opposed to a face-to-face consultation?

a) Fewer than one in 20 PIP clients receive a paper-based assessment

b) Approximately one in 20 PIP clients

c) Approximately one in 10 PIP clients

d) Approximately one in 5 PIP clients

e) Approximately 1 in 2 PIP clients

f) The majority of PIP clients receive a paper-based assessment

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7. In your experience, are paper-based assessments more or less likely to lead

to a successful award?

a) A paper-based assessment is more likely to lead to a successful

award

b) A face-to-face consultation is more likely to lead to a successful

award

c) Neither a paper-based assessment nor a face-to-face consultation

is more likely to lead to a successful award

8. In your experience, are there any administrative issues clients experience in

transferring from DLA to PIP?

[Text box]

Section 2: Making a claim

9. How do clients find the completion of the PIP form?

[Text box]

10. In your opinion, what proportion of PIP clients are able to complete the PIP1

form on their own?

a) All PIP clients are able to complete the form on their own

b) Most (three in five) PIP clients are able to complete the form on

their own

c) Some (two in five) PIP clients are able to complete the form on their

own

d) A few (one in five) PIP clients are able to complete the form on their

own

e) Very few (one in ten) PIP clients are able to complete the form on

their own

11. The government plan to introduce online PIP forms. In your opinion, what

proportion of PIP clients have the digital skills required to complete the PIP1

form online on their own?

a) All PIP clients have the digital skills needed to fill in a PIP1 form

online on their own

b) Most (three in five) PIP clients have the digital skills needed to fill in

a PIP1 form online on their own

c) Some (two in five) PIP clients have the digital skills needed to fill in

a PIP1 form online on their own

d) A few (one in five) PIP clients have the digital skills needed to fill in

a PIP1 form online on their own

e) Very few (one in ten) PIP clients have the digital skills needed to fill

in a PIP1 form online on their own

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Section 3: Supporting evidence

12. Who do clients tend to obtain supporting evidence from? (please tick all that

apply)

GP

Community Psychiatric Nurse

Social worker

Occupational Therapist

Physiotherapist

Nurse

Specialist Doctor

Mental health service providers (both NHS and other)

Other allied health professionals (includes chiropodists, speech and

language therapists, prosthetists)

Other (please specify)

13. In your experience, what types of supporting evidence do claimants send in

as part of their claim?

[Text box]

14. How easy is it for clients to gather evidence in support of their claim (when

completing and submitting their PIP1 form)?

Supporting evidence can be obtained…

with ease with

some

difficulty

with

difficulty

with great

difficulty

It is not at

all possible

From GP

From specialist

doctors

From social work

Allied Health

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Professionals

Mental health

service providers

15. How do clients find the process of gathering medical evidence?

[Text box]

16. In your experience, is one month enough time for a client to gather relevant

medical evidence in support of the PIP1 form?

a) Yes, in all cases

b) Yes, in most cases

c) No, it is rarely enough time

d) No, it is never enough time

e) Don’t know

17. In your experience what further evidence does Atos request on claimants’

behalf, in addition to the PIP1 and consultation? Is this requested on time

and used appropriately and fairly?

[Text box]

Section 4: Consultations with healthcare professionals

18. Are there any barriers that PIP clients experience in accessing a consultation

with an Atos healthcare professional?

[Text box]

19. Where is the closest assessment centre to your bureau?

[Text box]

20. In your experience, if a client requires a home visit assessment, do they

receive a home visit by an Atos healthcare professional?

a) Yes, in all cases

b) Yes, in most cases

c) No, it is rarely possible for a client to get a home visit

d) No, it is never possible for a client to get a home visit

e) Don’t know

21. In your experience, what is the average waiting time for receiving a home

visit consultation with Atos after having requested one?

a) Less than one month

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b) Between one and three months

c) Between three and six months

d) Between six and nine months

e) Between nine months and a year

f) More than a year

Section 5: Consultations with Healthcare Professionals

Based on your experience as an adviser, please respond to the following

questions about clients’ experiences of Atos consultations as part of the PIP

assessment process.

22. In your experience of advising clients about their PIP claims, how often do

issues relating to the manner of Atos healthcare professionals get mentioned

by clients during the advice interview?

a) Every time I offer advice to clients about their PIP claim

b) Often when advising clients about their PIP claim

c) Sometimes when advising clients about their PIP claim

d) Rarely when advising clients about their PIP claim

e) Never when advising clients about their PIP claim

f) Don’t know

23. In your experience of advising clients about their PIP claims, how often do

issues relating to the time taken by Atos healthcare professionals get

mentioned by clients during the advice interview?

a) Every time I offer advice to clients about their PIP claim

b) Often when advising clients about their PIP claim

c) Sometimes when advising clients about their PIP claim

d) Rarely when advising clients about their PIP claim

e) Never when advising clients about their PIP claim

f) Don’t know

24. In your experience of advising clients about their PIP claims, how often do

issues relating to the appropriateness of the questions asked by Atos

healthcare professionals get mentioned by clients during the advice

interview?

a) Every time I offer advice to clients about their PIP claim

b) Often when advising clients about their PIP claim

c) Sometimes when advising clients about their PIP claim

d) Rarely when advising clients about their PIP claim

e) Never when advising clients about their PIP claim

f) Don’t know

25. In your experience of advising clients who have seen an Atos healthcare

professional’s report following a consultation, how often do clients tend to

agree that the report accurately reflects the discussion that took place:

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a) Always

b) Often

c) Sometimes

d) Rarely

e) Never

f) Don’t know

26. How does the PIP process compare to similar assessments (e.g. ESA work

capability assessment or an occupational health assessment)?

[Text box]

27. Do you have any further comments you would like to make concerning clients

experiences of Atos consultations as part of the PIP assessment process?

[Text box]

Section 6: Decisions and awards

28. In your opinion, are the rates of awards available under PIP adequate to meet

the extra costs associated with daily living and/or mobility?

Daily living –

standard rate

Daily living –

enhanced rate

Mobility – standard

rate

Mobility –

enhanced rate

Yes – rate of

awards are

adequate

Yes – rate of

awards are

adequate

Yes – rate of

awards are

adequate

Yes – rate of

awards are

adequate

No – rate of awards

are not adequate

No – rate of

awards are not

adequate

No – rate of awards

are not adequate

No – rate of

awards are not

adequate

Don’t know

Don’t know

Don’t know

Don’t know

29. If you said ‘no’ to the above question, what impact does this have on CAB

clients?

[Text box]

30. In your opinion, are the lengths of awards available under PIP adequate?

a) Length of awards are adequate in all cases

b) Length of awards are adequate in most cases

c) Length of awards are adequate in less than half of cases

d) Length of awards are inadequate in most cases

e) Length of awards are inadequate in all cases

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31. In your experience, do you think DWP decision makers make decisions

regarding PIP awards based on a fair appraisal of all the available evidence?

a) Always

b) Often

c) Sometimes

d) Rarely

e) Never

f) Don’t know

32. When appealing a decision regarding their PIP claim, are there specific

descriptors for which clients are commonly awarded additional points? If so,

which descriptors?

[Text box]

33. What experience do PIP clients have of the mandatory reconsideration

process?

[Text box]

34. What experience do PIP clients have of the appeals process?

[Text box]

Section 7: General questions:

Do you have any other comments about how the PIP claim process be improved?

Please provide examples or suggestions.

[Text box]

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Appendix 2

List of all documentary evidence included in analysis

Type of document

Pages Benefit From whom

To whom

Mandatory Reconsideration

Notice - no change

5

ESA

DWP

Client

Further Medical Evidence -

from GP

1

ESA

Medical

Practice

The

DWP/HMCTS

Further Medical Evidence -

from Adult Community

Mental Health Services

1

ESA

NHS - Adult

Community

Mental Health

Services

The

DWP/HMCTS

Appeal papers - Grounds for

Appeal

1

ESA

Client/CAB

HMCTS

Letter from HMCTS - appeal

lapsed, no further action

1

ESA

Client/CAB

HMCTS

ESA decision letter

9

ESA

DWP

Client

Request for a Mandatory

Reconsideration

1

ESA

Client/CAB

DWP

Further Medical Evidence -

from GP

1

ESA

Medical

Practice

Client

Mandatory Reconsideration

Notice - no change

3

ESA

DWP

Client

Appeal papers - Grounds for

Appeal

1

ESA

Client/CAB

HMCTS

Mandatory Reconsideration

Notice - decision changed

4

ESA

DWP

Client

Tribunal Adjournment Notice

- requires DWP and client to

provide all medical evidence

1

ESA

HMCTS

Client and

DWP

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Tribunal Decision Notice -

decision changed

5

ESA

HMCTS

Client/DWP

Letter to Centre for Health

and Disability Assessments

re. ESA50 questionnaire

wrongly sent

2

ESA

Client/CAB

CHDA

(Maximus)

Further Medical Evidence -

from GP

1

ESA

Health Centre DWP

Further Medical Evidence -

from GP

1

ESA

Health Centre CAB

Mandatory Reconsideration

request

2

ESA

Client/CAB

DWP

Appeal papers - Grounds for

Appeal

3

ESA

Client/CAB

HMCTS

Email to David Mundell's

office re. client's ESA

2

ESA

CAB

David

Mundell MP's

constituency

office

Scottish Public Pensions

Agency - application form?

9

ESA

Scottish Public

Pensions

Agency

Unknown

Further Medical Evidence - GP

letter

1

ESA

GP

CAB

Further Medical Evidence - GP

letter

1

ESA

GP

ATOS

Further Medical Evidence - GP

letter

1

ESA

GP

Unknown

ESA decision letter

9

ESA

DWP

Client

Mandatory Reconsideration

request

2

ESA

Client

DWP

Mandatory Reconsideration

notice - no change

4

ESA

DWP

Client

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Appeal papers - Form SSCS1 4

ESA

Client/CAB

DWP

Appeal papers - Grounds for

Appeal

2

ESA

CAB

DWP

Further medical evidence -

consultant letter

2

ESA

Royal Infirmary GP

Further medical evidence -

list of medications

1

ESA

NHS

GP

Further Medical Evidence - GP

letter

2

ESA

GP

CAB

Tribunal Decision Notice -

decision changed

2

ESA

HMCTS

Client

Appeal papers - Form SSCS1 6

ESA

Client/CAB

DWP

Tribunal Decision Notice -

decision changed

2

ESA

HMCTS

Client

Mandatory Reconsideration

request

4

ESA

Client

DWP

Further Medical Evidence - GP

letter

1

ESA

GP

Unknown

WCA appointment letter

1

ESA

HAAS

Client

WCA appointment letter

1

ESA

HAAS

Client

ESA decision letter - benefit

awarded

1

ESA

DWP

Client

ESA50 - additional

information supplied by client

1

ESA

Client

DWP

Further medical evidence -

CAB request to GP

2

ESA

CAB

GP

Further medical evidence - GP

position on ESA appeal letters

1

ESA

GP

CAB

Mandatory Reconsideration

request

2

PIP

Client/CAB

DWP

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PIP decision letter

7

PIP

DWP

Client

Mandatory Reconsideration

notice - no change

8

PIP

DWP

Client

Appeal papers - Grounds for

Appeal

3

PIP

Client/CAB

HMCTS

Further Medical Evidence -

Neurology Clinic

3

PIP

NHS, Neurology

Clinic

HMCTS

Tribunal Adjournment Notice

- to gather further medical

evidence

1

PIP

HMCTS

Client/DWP

HMCTS - Further Evidence

related to the appeal (client's

full medical records)

25

PIP

HMCTS

Client/DWP

Further Medical Evidence - GP

letter

1

PIP

Medical

Practice

DWP

PIP decision letter - benefit

not awarded

6

PIP

DWP

Client

Mandatory Reconsideration

request

3

PIP

Client/CAB

DWP

Mandatory Reconsideration

notice - no change

5

PIP

DWP

Client

Appeal papers - Grounds for

Appeal

2

PIP

Client/CAB

HMCTS

Page from PIP application

form detailing documents

sent in support of initial claim

1

PIP

Client/CAB

DWP

Further Medical Evidence - GP

letter

1

PIP

Medical

Practice

DWP

Further Medical Evidence - GP

letter

1

PIP

Medical

Practice

DWP

PIP decision letter

5

PIP

DWP

Client

Further Medical Evidence -

1

PIP

NHS, Day

DWP

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Day Surgery

Surgery

Mandatory Reconsideration

request

2

PIP

Client/CAB

DWP

Mandatory Reconsideration

notice - no change

5

PIP

DWP

Client

Appeal papers - Grounds for

Appeal

4

PIP

Client/CAB

HMCTS

Revision letter - DWP

changed decision prior to

appeal

1

PIP

DWP

Client

Referral letter

1

PIP

GP

Neurology

department

Tribunal Decision Notice -

decision changed

1

PIP

HMCTS

Client/DWP

Letter to request Further

Medical Evidence

1

PIP

CAB

GP

Tribunal Decision Notice -

decision changed

1

PIP

HMCTS

Client

PIP decision letter - benefit

awarded

7

PIP

DWP

Client

Mandatory Reconsideration

request

1

PIP

PIP decision letter - benefit

denied

33

PIP

DWP

Client

PIP Assessment - client

comment

6

PIP

Client

CAB

Mandatory Reconsideration

request

2

PIP

CAB

DWP

Patient summary and

medication list

2

PIP

GP

Client

Client daily log and personal

statement

7

PIP

Client

Unknown

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Further Medical Evidence - GP

letter

1

GP

Unknown

Further Medical Evidence - GP

letter

1

PIP

GP

CAB

Mandatory Reconsideration

notice - no change

4

PIP

DWP

Client

Mandatory Reconsideration

notice - no change

(annotated with clients

comments

4

PIP

DWP

Client

Appeal papers - Form SSCS1 6

PIP

Client/CAB

DWP

Appeal papers - Grounds for

Appeal

2

PIP

CAB

DWP

Tribunal Decision Notice -

decision changed

2

PIP

HMCTS

Client/DWP

PIP - Award post appeal

9

PIP

DWP

Client

Mandatory Reconsideration

request

2

PIP

CAB

DWP

Mandatory Reconsideration

notice - no change

4

PIP

DWP

Client

Appeal papers - Form SSCS1 6

PIP

Client/CAB

DWP

Appeal papers - Grounds for

Appeal

2

PIP

CAB

DWP

Appeal papers - client daily

log

1

PIP

Client

Unknown

Further medical evidence -

optician letter

1

PIP

Optician

Unknown

End of DLA/Start of PIP

notification & statement of

entitlement

8

PIP

DWP

Client

Medical evidence - proof of

provision of medical

1

PIP

Client

DWP

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professional's details

PIP decision letter -

reassessment

6

PIP

DWP

Client

Medical consultation report -

list of evidence provided

1

PIP

Atos

Unknown

Medical evidence -

neuropsychologist letter

1

PIP

NHS

DWP

Appeal papers - Grounds for

Appeal

2

PIP

CAB

DWP

Medical evidence -

neuropsychologist letter

2

PIP

NHS

Unknown

Appeal - tribunal report

9

PIP

Unknown

Unknown

Tribunal Decision Notice -

decision changed

2

PIP

HMCTS

Client

Appeal papers - Grounds for

Appeal

1

PIP

Client/CAB

DWP

Medical evidence - GP letter 2

PIP

GP

Unknown

Mandatory Reconsideration -

letter of support from CAB

2

PIP

CAB

DWP

Mandatory Reconsideration -

letter from CAB requesting

late MR

1

PIP

CAB

DWP

Tribunal notice -

adjournment for further

medical evidence

1

PIP

HMCTS

HMCTS

PIP decision letter - award

coming to an end

5

PIP

DWP

Client

Letter from Atos Healthcare

regarding PIP assessment

report

2

PIP

Atos

Healthcare

Client/CAB

Mandatory Reconsideration

request

3

PIP

DWP

Client/CAB

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Mandatory Reconsideration

notice - decision changed

8

PIP

DWP

Client

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Appendix 3

Incapacity benefits – Policy Context

Employment and Support Allowance (ESA) was introduced by the UK Labour

Government in 2008 as a new benefit for those unable to work due to ill health

or disability. ESA replaced Incapacity Benefit (IB), and in April 2011 the DWP

began migrating IB claimants onto ESA through a process of reassessment using

the new ‘Work Capability Assessment’. The policy intent behind the new benefit

was the principle that “everyone should have the opportunity to work” and that

“people with an illness or disability should get the help and support necessary for

them to engage in appropriate work, if they are able.”41

The Work Capability Assessment (WCA) is a face-to-face functional assessment

carried out by an independent assessment provider, contracted by the DWP. The

WCA was introduced to assess a claimant’s eligibility for the benefit and, if so,

the level of support they should be entitled to. There are two groups of ESA, the

Support Group – the higher rate of the benefit and no conditionality - and the

Work Related Activity Group, which has limited conditionality.

Since its introduction, the Work Capability Assessment has received media

attention and criticism from disability rights groups42, and was the focus of the

first inquiry by the previous Parliament’s Work and Pensions Committee in

201443. Five independent reviews carried out by Professor Malcolm Harrington

41 Archived DWP web content. Available from:

webarchive.nationalarchives.gov.uk/20100407120701/dwp.gov.uk/healthcare-

professional/benefits-and-services/employment-and-support/

42 For example, see: The Guardian newspaper, Disabled charities attack fit-to-work tests after 1m

people denied benefit, 25 January 2014. Available from:

www.theguardian.com/society/2014/jan/25/disabled-charities-fit-to-work-tests-benefit; The

Independent, DWP’s fit-to-work tests ‘cause permanent damage to mental health’, study finds, 13

March 2017. Available from: www.independent.co.uk/news/uk/politics/fit-to-work-wca-tests-

mental-health-dwp-work-capability-assessment-benefits-esa-pip-a7623686.html; The Week, 'Fit to

work' tests not fit for purpose, say MPs, 24 July 2014. Available from: www.theweek.co.uk/uk-

news/59642/fit-to-work-tests-not-fit-for-purpose-say-mps

43 House of Commons, Work and Pensions Select Committee, First Report: Employment and

Support Allowance and Work Capability Assessments, July 2014. Available from:

www.parliament.uk/business/committees/committees-a-z/commons-select/work-and-pensions-

committee/inquiries/parliament-2010/esa-wca-inq-2014/

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CBE44 and Dr Paul Litchfield45 led to a number of improvements, but the contract

with Atos Healthcare was not renewed in 2015 when claimants were

experiencing significant delays before receiving an assessment. The Centre for

Health and Disability Assessments, run by Maximus, now holds the contract to

assess eligibility for ESA.

Disability benefits – Policy Context

Disability benefits are non means-tested benefits which are paid to individuals

with disabilities and/or disabling conditions in recognition of the additional costs

that their disability may incur. In 2010, the UK Government announced that

Disability Living Allowance would be replaced with Personal Independence

Payment, partly to reduce the budget spent on disability benefits and to ensure

that payment was being made to those who were in most need46. The intention

behind PIP was to introduce different eligibility criteria which focussed on a

needs-based assessment rather than specific conditions and to assess these

needs through a more objective assessment process47.

In April 2013, the first new claims for PIP were made, with the reassessment of

all existing DLA claims originally set for completion by October 2017, although

44 Professor Malcolm Harrington, An Independent Review of the Work Capability Assessment –year

one, November 2010, and the Government's response to Professor Malcolm Harrington's

Independent Review of the Work Capability Assessment, November 2010; Professor Malcolm

Harrington, An Independent Review of the Work Capability Assessment – year two, November

2011, and the Government's Response to Professor Malcolm Harrington's Second Independent

Review of the Work Capability Assessment, November 2011; and Professor Malcolm Harrington, An

Independent Review of the Work Capability Assessment – year three, November 2012, and the

Government's Response to Professor Malcolm Harrington's Third Independent Review of the Work

Capability Assessment, November 2012

45 Dr Paul Litchfield, An Independent Review of the Work Capability Assessment – year four,

December 2013, and the Government's response to the year four independent review of the Work

Capability Assessment, March 2014

46 Department for Work and Pensions, Government’s Response to the consultation on Disability

Living Allowance Reform, April 2011, page 3. Available from:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/181637/dla-

reform-response.pdf

47 Paul Gray, An Independent Review of the Personal Independence Payment Assessment,

December 2014, pages 19-20. Available from:

www.gov.uk/government/uploads/system/uploads/attachment_data/file/604097/pip-assessment-

second-independent-review.pdf

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this timetable has now been extended. From October 2015, the DWP began

inviting DLA working age recipients to claim PIP and, at the end of January 2017,

543,200 claims in payment were reassessment claims from DLA (44% of the

total PIP caseload). ‘Full PIP Rollout’ is now expected to complete by October

2018.48

The Welfare Reform Act 2012 mandated two Independent Reviews of PIP. The

first of these was carried out by Paul Gray in 2014 in the context of lengthy

delays and backlogs in the assessment process. The review made the following

recommendations with regards to the gathering of further medical evidence:

• Explore opportunities for improving the collection of further evidence by:

a) reviewing external communications so that messages about further

evidence are consistent and give greater clarity about the type of

evidence required and who is responsible for gathering the

information;

b) where appropriate and relevant, sharing information and evidence

from a Work Capability Assessment or other sources of information

held by the Department;

c) examining the potential for wider sharing of information and evidence

across assessments carried out in other parts of the public sector, for

example health and social care reports.49

There was also recognition that “there is a tension between the claimants’ view

of GPs as their most trusted source of reliable evidence, and GPs’ own view that

they are often less well placed than other professionals to comment on

functional impact.”50

48 Department for Work and Pensions, Personal Independence Payment: Official Statistics, March

2017. Available at:

www.gov.uk/government/uploads/system/uploads/attachment_data/file/598755/pip-statistics-to-

january-2017.pdf

49 Paul Gray, An Independent Review of the Personal Independence Payment Assessment,

December 2014, Page 11. Available from:

www.gov.uk/government/uploads/system/uploads/attachment_data/file/604097/pip-assessment-

second-independent-review.pdf

50 Paul Gray, An Independent Review of the Personal Independence Payment Assessment,

December 2014, Page 8. Available from:

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In March 2017, Paul Gray published the results of his second independent review

of Personal Independence Payment, focussing on the assessment of the benefit.

One key conclusion of the review is that “public trust in the fairness and

consistency of PIP decisions is not currently being achieved, with high levels of

disputed award decisions, many of them overturned at appeal.”51 He makes a

number of recommendations around improvements that can be made to the

way in which evidence is gathered and appraised, as well as quality auditing of

decision making. Of particular relevance to this report, the Review recommended

that:

• The DWP makes clear that the responsibility to provide Further Evidence lies

primarily with the claimant and that they should not assume the Department

will contact health care professionals.

• Assessment Providers and the DWP work to implement a system where

evidence is followed up after the assessment where useful evidence has been

identified and may offer further relevant insight.

• The Department ensures that evidence of carers is given sufficient weight in

the assessment.

• In the longer term, the Department should develop a joined up digital journey

which includes an online facility for both claimants and external Health

Professionals to upload documentary evidence securely.52

Devolution of disability benefits to Scotland

Resulting from commitments made following the 2014 Scottish Independence

Referendum, new social security powers have been devolved to the Scottish

Parliament under the Scotland Act 2016. These include disability benefits, which

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/604097/pip-

assessment-second-independent-review.pdf

51 Paul Gray, The Second Independent Review of the Personal Independence Payment Assessment,

March 2017, Page 3. Available from:

www.gov.uk/government/uploads/system/uploads/attachment_data/file/604097/pip-assessment-

second-independent-review.pdf

52 Paul Gray, The Second Independent Review of the Personal Independence Payment Assessment,

March 2017, Pages 11-12.

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make up the vast majority of the social security budget to be devolved, and are

claimed by 10% of the Scottish population.

The Scottish Government has so far:

• Published the ‘A New Future for Social Security in Scotland’ vision paper,

outlining the Scottish Government’s core principles53;

• Carried out an appraisal of the options for delivering social security in

Scotland and decided to deliver this through a new Social Security Agency;

• Carried out a broad and wide-ranging consultation on the future of social

security in Scotland which received responses from more than 500 individuals

and organisations54;

• Published the Government’s response to this analysis in February 201755.

The Scottish Government has committed to reforming the way in which disability

benefits are assessed, “from application all the way through to final decision”56

and aims to reduce the number of face-to-face assessments and re-assessments

carried out, but has not yet outlined how this will be achieved. An Expert

Advisory Group and Experience Panels have been established to inform the

design of the new system.

Later in 2017, the Scottish Government will introduce a Social Security Bill to the

Scottish Parliament, but it is unlikely that disability benefits will be fully delivered

and administered by the Scottish Social Security Agency until at least 2020.

53 Scottish Government, A New Future for Social Security in Scotland, March 2016. Available from:

www.gov.scot/Resource/0049/00496621.pdf

54 Scottish Government, Analysis of Written Responses to the Consultation on Social Security in

Scotland, February 2017. Available from: consult.scotland.gov.uk/social-security/social-security-in-

scotland/results/00514346.pdf

55 Scottish Government, A New Future for Social Security Scottish Government Response to the

Consultation on Social Security in Scotland, February 2017. Available from:

www.gov.scot/Resource/0051/00514404.pdf

56 Scottish Government, A New Future for Social Security Scottish Government Response to the

Consultation on Social Security in Scotland, February 2017, page 14. Available from:

www.gov.scot/Topics/People/fairerscotland/Social-Security/SG-Response

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Appendix 4

Decision Making and Mandatory Reconsideration –

recommendations from Social Security Advisory Committee

The Social Security Advisory Committee, as part of its independent work

programme, last year published a paper on Decision Making and Mandatory

Reconsideration. This study concluded that Mandatory Reconsideration “could be

an efficient process that provides opportunity for timely review” but that “the

process does not work as well as it should.”

The report makes a total of 37 recommendations around how decision making

and Mandatory Reconsideration could be improved. The following

recommendations57 are of particular relevance to this report. Recommendations

that:

1. The DWP and HMRC consider whether current time limits for requesting an MR

and submitting evidence are conducive to effective evidence gathering.

2. The DWP should provide clarity for claimants under what circumstances it will

gather evidence for claimants and what expectations are placed upon them

at each stage in the decision making process.

3. A review of the Quality Assurance Framework used by DWP and HMRC is

carried out to establish if it is fit for purpose in evaluating whether decisions

are of a high quality.

4. The DWP work with the Department of Health and the devolved

administrations to establish a consistent approach to the provision of medical

evidence.

57 Social Security Advisory Committee, Decision Making and Mandatory Reconsideration: A study by

the Social Security Advisory Committee, Occasional Paper No. 18, July 2016, pages 62-6. Available

from: www.gov.uk/government/uploads/system/uploads/attachment_data/file/538836/decision-

making-and-mandatory-reconsideration-ssac-op18.pdf

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5. The DWP seek to further raise awareness with the medical profession about

how the benefit system functions and their role within it, and seek to design

forms that seek to capture precisely the data required from doctors to

determine eligibility.

In response to this report, the DWP have committed to a Decision Making and

Appeals improvement plan, which will “be cross-cutting and will concentrate on

introducing measures to improve: the accuracy of decision making; the balance

struck between robust decision making and managing large volumes of cases

and making the MR journey easier for appellants to understand and comply

with.”58

Of the five recommendations listed above, the first was rejected, on the basis

that the Department believes one calendar month for submitting evidence is

adequate, and because that timescale can be extended as appropriate.

Recommendations numbered 2-5 were accepted by the Department. In

response to the recommendations numbered 4 and 5 above, the Department

writes:

“The current medical evidence report form (ESA113) was designed in

conjunction with GPs. The form already asks GPs to provide functional

information about the WCA activities / descriptors if known from their

knowledge of the claimant but it is important to note that clinicians

(including GPs) very often do not have this information as their primary

role is the clinical management of their patient. We meet regularly with

representatives of the BMA and RCGP to discuss issues of joint interest and

we are currently exploring mechanisms for raising awareness of the

benefit system and the role of GPs.”59

58 Letter from Penny Mordaunt MP, Minister for Disabled People, Health and Work, to Paul Gray,

Chair of the Social Security Advisory Committee, January 2017, page 1. Available from:

www.gov.uk/government/uploads/system/uploads/attachment_data/file/604139/detailed-

response-from-the-government-to-the-ssac-mandatory-reconsideration-report.pdf

59 DWP, Response to SSAC Report on Mandatory Reconsideration Processes, January 2017, page

13. Available from:

www.gov.uk/government/uploads/system/uploads/attachment_data/file/604139/detailed-

response-from-the-government-to-the-ssac-mandatory-reconsideration-report.pdf

Burden of Proof

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