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7 July 2009

Having studied a number of sometimes shockingly poor ESA mental health medical reports, Benefits and Work is now publishing details – with sample texts - of 7 ways in which you can attempt to discredit the report about you at an appeal hearing.  Many of these also apply to incapacity benefit medicals.

esa.jpgDo bear in mind, however, that discrediting the LiMA report – either in  a written submission or orally at your hearing - is only half the job.  You still have to demonstrate to the tribunal which descriptors, exemptions or exceptional circumstances actually apply to you.

1  The evidence is unclear
LiMA software lumps a number of different activities together and then provides evidence which is supposed to cover all of them without any attempt to show which bits of evidence relate to which descriptor.

For example, the first five activities in the mental health assessment are all lumped together under the heading of ‘Understanding and focus’.  There is no such category in the work capability assessment, it is an entirely invented one. The five activities consist of:

Activity 12 Learning or comprehension in the completion of tasks
Activity 13 Awareness of hazard
Activity 14 Memory and concentration
Activity 15 Execution of tasks
Activity 16 Initiating and sustaining personal action

The software then produces a list, often very, brief of ‘Prominent features of functional ability relevant to daily living.

In one report we’ve seen (not the worst), this list consists of the following:

‘Seen a CPN with some benefit for about a year recently finished
Usually manages to make hot drinks for themselves
Drives a manual car for 10 minutes to local shops most weeks
Has not suffered any serious accidents or near misses recently’

And that’s it.  Five activities, four bits of evidence, one of which merely relates to which health professional they were seeing.  So, how does the decision maker know which evidence shows that the claimant has no problems with Initiating and sustaining personal action? Is it just that they usually manage to make hot drinks?  Or that on possibly one occasion most weeks they drive for 10 minutes?  Which bit of evidence shows that they can execute tasks as quickly as other people?  

If your report looks like this, try arguing something along the lines of:

‘The health professional is supposed to provide evidence which clearly shows the decision maker how they reached their conclusion in relation to the choice of a  descriptor for each activity.  However, the report merges entirely different activities together under the same heading and offers evidence which is not shown to be specific to any activity.  

This means the Atos health professional has left it to the decision maker to guess which evidence goes with which activity.  This is neither clear nor reliable evidence and I would ask the tribunal to attach little or no weight to it.  [Add examples like the ones above, if possible]

2  The report says ‘No problems’ or something similar
Over and over again in the reports we looked at a whole group of mental activities which were assessed as scoring zero points with absolutely no evidence whatsoever to support the assessment.

Under the heading Supporting medical evidence, the only thing written was:

‘Client has no problems with these activities’

This is in complete contradiction to the Medical Services Doctors Handbook for the personal capability assessment which states that health professionals should not write ‘No problems’ . There is no reason to suspect a lower standard of evidence is required for ESA, yet this response is now part of the LiMA software.  If there are no problems with, for example, initiating and sustaining personal action then the health professional is under an absolute duty, in our view, to provide evidence that the claimant does initiate and sustain tasks.

What we suspect is happening is that where the claimant has said on their ESA50 form that they do not have a problem with an activity, the software does not require the health professional to collect evidence about it.  This may possibly be a reasonable approach where a claimant without a mental health condition writes on their form that they have no problems with, for example, walking.  

But a claimant with a mental health condition which causes great difficulty in starting and completing tasks may well simply tick no problem as a way of getting the job done.  Some claimants with mental health conditions may have very little insight into their difficulties, may experience feelings of shame which prevent them admitting their difficulties or struggle to understand what the questions are about.  Given that this assessment is aimed at claimants with learning difficulties as well as mental health conditions, to rely solely on the IB50 without seeking and providing evidence at the assessment is shameful and wholly inadequate.

If your report says No problems or something similar, you may wish to write that:

‘’The health professional has stated ‘Client has no problems’ in relation to [list activities].  This is in breach of the guidance in the Medical Services Doctors Handbook and is entirely unreliable as no evidence whatsoever has been offered to support the statement that I have no problems with these activities. The decision maker has therefore been left to make their decision based on mere opinion without any evidence to support it.

I would ask the tribunal to attach little or now weight to the report due to this lack of evidence.’

If there is also evidence in the medical report or your IB50 questionnaire that you do have problems with the relevant activities then list that as well, to further undermine the reliability of the Atos evidence.

3  The report contains contradictions
Contradictions seem commonplace in ESA85 reports and may render them unreliable.  They are particularly likely to be found in the Description of a typical day, near the beginning of the report.

Because LiMA relies on this information to choose and justify descriptors, contradictions, like errors, have the potential to dramatically alter the results of the assessment.  If your report contains contradictions, try arguing something like this:
 
‘The medical report contains contradictions, including:

Has developed a short temper and this leads to verbal outbursts of anger most days.
Has no history of any form of disruptive behaviour.

Verbal outbursts clearly can be disruptive, so to state there is no history of disruptive behaviour is contradictory. In addition, the LiMA software has not included the information relating to verbal outbursts in the section of the report relating to Propriety of behaviour with other people, for which no points were awarded.  Evidence of verbal outbursts is unquestionably relevant to this activity and should have been included at this point in the report.

The assessment is therefore clearly unreliable and I would ask the tribunal to attach little weight to it.’

4  Failure to consider further medical evidence
Atos are refusing to allow claimants to send medical evidence with their ESA50 questionnaire, presumably directed to do so by the DWP.  As a result the Atos health professional is not taking into account medical evidence provided by often better qualified health professionals with a better knowledge of the claimant and their condition.  This appears to be in breach of Atos’ own complaints procedure.

If you provided additional medical evidence at your medical and the health professional has failed to mention it, or refused to even look at it, try arguing the following:

‘The letter I received with my ESA50 questionnaire instructed me not to enclose any other evidence and the health professional at my medical did not read the evidence I took with me on the day, but said it would be sent on to the DWP.

The refusal by Atos to allow their health professional to take account of other medical opinions is unreasonable, in breach of Atos’ own complaints procedure and may be a breach of medical ethics.  The decision maker is not medically qualified and should not be left to weight the value of different medical evidence where there is a medically qualified person who could and should have done so.  

I would ask the tribunal to attach little weight to the IB85 medical report due to its failure to take into account further medical evidence.’

5  Inferior qualifications of Atos staff
So far as we can tell, where a claimant’s conditions relate solely to mental health a registered nurse is always used to carry out the assessment.  The more expensive  doctors are only used when there is a physical condition to be assessed.  Neither have any specialist knowledge of mental health issues

If you have submitted supporting evidence, even  from a GP, point out that your medical evidence is better than the DWP’s.  Argue something like:

‘The Atos health professional is a registered nurse and there is no evidence that they have any specialist qualifications in either mental health or in ‘disability analysis’.  They seem only to be an ‘Approved Disability Analyst’ , i.e. approved by the Secretary of State to carry out assessments.  The supporting medical evidence I provided is from a Community Psychiatric Nurse with specialist knowledge of mental health and detailed personal knowledge of me and how my condition affects me. ‘

6  Errors in the evidence gathered
Information entered in the early part of the LiMA report has a profound and fundamental affect on how the rest of the assessment is carried out.  So, if errors are made at this stage they may render the entire report unreliable.  

Argue something along the lines of:

‘The medical report was created by LiMA software.  Using the information entered at the start of the medical, particularly the list of conditions and description of a typical day, the software tells the health professional what questions to ask and uses an ‘Automatic Descriptor Choice and Justification’ system to complete and score the mental health test before the health professional has even considered it.  

Errors at the initial stage of the report may therefore have a profound effect on the way the assessment is carried out and on the final results.  The precise effects cannot be established due to the fact that the LiMA software’s workings remain a commercial secret.

The ESA85  report about me contains the following errors:

[List the errors, e.g. ‘Failed to include a diagnosis of panic attacks ‘ or ‘Stated that I shop three times weekly at a supermarket when I only use the local shops where the staff know me’ or ‘Stated that I cook safely and eat well’ when I only eat sandwiches and microwaved ready-meals’]

I would ask that the tribunal attaches little weight to this report due to the potential effect of these errors on the largely automated LiMA report.’


7  The summary of functional ability is simply standard computer generated text with no evidence relating to the claimant.
In many cases we found that the ‘Summary of functional ability’ which is supposed to be a rounding up of all the evidence in relation to a given activity (or group of activities in this case) was merely another standard form statement with no evidence at all relating to the claimant and no reference to such issues as variability or reasonable repeatability.

If this is the case for your report you may want to argue something along the lines of:

‘In addition to providing unclear and insufficient evidence about functional ability in relation to [name the activity such as Dealing with other people] the health professional has also failed to provide a relevant summary of functional ability.  Instead the health professional has simply used a standard statement:

“From the typical day history and mental state examination findings, there was no evidence of significant disability affecting the client’s behaviour and interaction with others.”

This is, in effect, another way of saying ‘No problems’.  It is a mere computer generated opinion unsupported by any evidence whatsoever.’

I would ask the tribunal to attach little weight to the IB85 medical report because of its reliance on standard, software generated statements rather than specific evidence relating to me and my condition.’

8  The LCWRA report is simply standard computer generated text with no evidence whatsoever specific to the claimant.
Most of the limited capability for work-related activity (support group) assessments we have seen so far contain not a single shred of evidence to support their ‘findings’.  They are just a page of standard statements tacked on to the end of each report, such as:

‘From the condition history, typical day history, mental state examination findings and medical knowledge of the condition the client would have no difficulty either initiating or sustaining daily tasks, and would not need any assistance to do so.’

Very occasionally there will be some justification, but merely opinion with not a shred of evidence to support it:

‘From the condition history, typical day history, mental state examination findings and medical knowledge of the condition the client has some difficulty communicating due to anxiety and depression, but is still in touch with reality and able to make themselves understood to others.’

If you think you should be in the support group, you may wish to argue something along the lines of:

‘I would ask the tribunal to attach little weight to the IB85 medical report in relation to limited capability for work-related activity because of its complete reliance on standard, software generated statements rather than specific evidence relating to me and my condition.’

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