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.{jcomments on}

{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.


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