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Atos, currently the sole provider of work capability assessments for employment and support allowance,  could be in serious difficulties following an upper tribunal decision that the opinion of an Atos health professional who is a physiotherapist was of no value where it concerned a claimant who had a mental rather than physical health condition.

{EMBOT SUBSCRIPTION=5,6}The case involved a claimant who had been placed in the work-related activity group but had appealed to be placed in the support group.  The claimant’s mental health conditions included depression and bouts of uncontrollable rage. The upper tribunal judge, noted that:

“The claimant was then assessed by an approved disability analyst on 10 January 2012.  Somewhat remarkably, considering that the claimant’s problems were entirely mental ones, the disability analyst in question was, as I have noted, a registered physiotherapist, with no apparent professional expertise in mental health matters beyond what she may have gleaned from whatever training she was provided to become a disability analyst.  The entire examination took 15 minutes and as usual the analyst had no access to the claimant’s medical records.”

In relation to whether  there might be a substantial danger to the claimant or to others if the claimant was found not to have limited capability for work related activity, the judge held that:

“Where the disability analyst possesses relevant medical expertise, any opinion expressed based on that expertise is also relevant evidence.  

Where, however, the disability analyst is a physiotherapist and the problems she is dealing with are mental health problems the opinion of the physiotherapist as to the conclusions to be drawn have no probative value whatsoever.  This is because the physiotherapist has no professional expertise in mental health matters  . . .
 
“I can only express my surprise that in a case where the only issue was the mental health of the claimant and its effect in relation to the mental health descriptors, the report was prepared by a physiotherapist following a 15 minute interview.  It is plainly important that questions of mental health should be assessed by a disability analyst with appropriate mental health qualifications if their opinion is to be of any evidential value.  Even then tribunals should beware of placing too much weight on such reports, based as they are on a very short interview with a claimant and without access to medical records. “

Although the decision, which was highlighted on the Rightsnet discussion forum for welfare rights workers, relates to ESA there is no logical reason why similar arguments cannot be employed in relation to PIP, where a very similar points based system is in place.

This could pose a massive problem for Atos whose successful bid for the PIP medical assessment contract  stated that they would be using the following health professionals:

933 physiotherapists
373 nurses
75 occupational therapists
19 doctors.

There seems little doubt that the DWP will appeal the decision.  

However, this does not prevent claimants citing this decision if they consider that the health professional in their case lacked the necessary expertise.  This may apply not just to mental health but also to, for example, neurological conditions, learning difficulties and many other conditions.  However, it should be borne in mind that if the DWP do appeal this decision to a higher court, then any other appeal based on it may have the hearing postponed until the DWP’s appeal has been completed.

We’ll be updating our ESA appeals guide to take account of this decision in the near future.  Meanwhile, you can download the full decision from this link.

Comments  

#8 Bill24chev 2013-09-22 09:11
My wife recently won her ESA tribunal being placed in the support group from a Nil score for any descriptor by the HCP assessor, in this case a Registered Nurse,

My wife is an HCP her self ,an RNLD and Registered Social Worker, because we believe that the outcome of the assessment aand the wording used in subsequent DWP letters cast doubt on her integrity as a HLC and the Assessor failed to meet the standards set by the Nursing profession we have made a complaint to the NMC and our MP.

The NMC are now investigating our complaint.
#7 catelilac 2013-09-05 20:29
They use non-doctors purely because doctors can be complained against to their medical council. I would think a doctor with too many decisions being overturned would be struck off? We should make formal complaints to the DWP. We are too ill and stressed and that's what they count on
#6 annannharly 2013-08-01 16:37
how long to hear after form is sent in i have been waiting 7 weeks
+1 #5 martin 2013-08-01 07:55
this ruling goes to the heart of what is failing in the system, would you ask your barber to fix your computer? would you ask a sailor to pilot a plane? of course not. would you ask a physio to assess a person with mental health issues, yes, if you're atos and have an agenda that is contrary to finding a reasoned and just decission. the atos disability analists should have relavent experience in the disability they are assessing. how can a physio assess visual impairment for instance?
+2 #4 Mockingbird 2013-07-26 13:34
According to the contract betwen DWP?Atos; "1.4 When providing Specialist Medical Services the CONTRACTOR shall use only a Medical specialist as defined in Schedule 1 who shall have training, qualifications and experience pertinent to the condition under consideration." http://www.whywaitforever.com/dwpatoscontract.html
added to the fact that Atos must be the only people in the UK who can make up the criteria for the course of disability analyst, and then be their own awarding body, as anyone else who wants to give themselves a title has to complete courses accredited by an independent awarding body.
+5 #3 carruthers 2013-07-26 05:29
If this decision is not over-turned then Atos / DWP are in trouble big time. Their entire system is based on the adequacy of the training in "Disability Analysis" for the HCP carrying out a WCA, combined with the "expert" computer system - LiMA.

I think, however, that the judgement will not stand.

[1] The official line is that the WCA report is only one element and that the DM has other medical evidence available

[2] The relevant laws say that HCPs with a given level of competence can make this judgement - backed up by training, LiMA and the DWP's handbooks. If Parliament were to say that the Daily Mail can work out who is sick, then that's the law. Stupid, unjust, hypocritical - but legal.

[3] The rules governing the WCA say that the HCP must have access to all the available medical evidence. If this particular HCP didn't have or didn't read the documents, then that means that this decision may be wrong, but only because proper procedures weren't followed.

[4] If the decision is upheld, then any bets that the DWP will put through emergency legislation to say that physios can so assess mental health.

After all we can't have common sense get in the way of budget cutting - or even in the way of Atos' business model.
+4 #2 del 2013-07-25 13:31
Brilliant news. I fail to understand why these medical professionals employed by ATOS continue to assess people knowing full well that they are not medically trained in certain fields of health. Surely they must know they are doing wrong, gosh if your GP knows you have a problem he cannot deal with directly he refers you to a specialist. Also, DWP Decision Makers I believe have a legal obligation to take into consideration ALL EVIDENCE but it appears from what I have read and experienced most rely on ATOS reports. I strongly believe more than ATOS needs an overhaul.
+4 #1 qhelp123 2013-07-25 03:05
So grateful for this newsletter And the welcome updates .You all do an excellent job at B&W
Well done guys ,so much appreciate the work that goes in
qhelp123 ★★★ x

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