14 April 2011
The new ESA50 medical questionnaire for employment and support allowance misleads claimants into not giving the evidence needed to score all the points they are entitled to. In addition, Atos health professionals are being seriously misadvised about how to assess claimants at medicals. These are the conclusions that Benefits and Work has reached, having researched and published our highly detailed guides to the new work capability assessment.
Below, we give a few examples of the kinds of misleading questions and doubtful guidance we think you need to be aware of when making your claim.
We have been warning for some time now about the introduction of the imaginary wheelchair test’ whereby claimants who have difficulty walking can be assessed on their ability to use a wheelchair, even if they don’t have one.
Yet the new ESA50 questionnaire merely asks people about “the use of aids such as a manual wheelchair, crutches or a walking stick if you usually use one”.
So, were all our warnings mere scaremongering, given that the form only wants to know about what you ‘usually’ use and not what you could conceivably use?
Well, the answer has to be a resounding ‘No’. Because the Work Capability Assessment Handbook issued to Atos health professionals tells them clearly that:
“In this activity, the HCP should consider whether a person could potentially use a wheelchair regardless of whether or not they have ever used a wheelchair.”
In other words, claimants are asked to give evidence about one thing – aids they usually use - whilst doctors will be assessing them about something else entirely – aids they could theoretically use. If there are reasons why you would not be able to use a manual wheelchair, you need to consider very carefully if you should include them in the questionnaire, even though you aren’t asked about them.
The Benefits and Work guide to claiming ESA on physical health grounds has lots more information about the activity of ‘mobilising’, which has replaced the previous activity of walking.
Sitting, standing or both?
In relation to sitting and standing, the form only asks about your inability to ‘stay in one place, either standing or sitting, for at least an hour’, for which you score 6 points. Yet, if you can’t sit or stand for more than half an hour you score 9 points. So, it’s really important that you give detailed information about just how long you can stand for and sit for or you may miss out on vital points.
More worrying still, whilst both the law and the questionnaire refer to standing or sitting, Atos health professionals are told to use a much harder test:
‘. . . the person does not have to stand or sit for the whole 30 or 60 minutes. They can alternate between the two. For example, a person may only be able to sit for 30 minutes, but then stand for 10 or 15 and then sit for another 30 minutes. In this case they would not attract a scoring descriptor as they are able to remain at the workplace for in excess of 60 minutes.’
We believe that this is a serious misinterpretation of the law. However, even if it were correct, it would then be absolutely necessary for the Atos health professional to assess your ability to rise from sitting to standing without pain or severe discomfort and with reasonable repeatability. Yet nowhere are they instructed to do so.
If you do have problems with rising from sitting – or with moving from a standing to seated position - then you may wish to consider giving evidence about them on the form, even though you are not asked to do so. And, whether or not you have problems with rising, if you are not awarded ESA you may wish to raise the issue of the wrong standing and sitting test being applied by the Atos health professional when you lodge your appeal.
Again, the Benefits and Work guide to claiming ESA on physical health grounds has lots more information about this activity.
Staying close to a toilet
There is also a very important omission on the ESA50 questionnaire in relation to continence.
Nowhere are claimants asked about whether they have to stay close to the toilet in order to avoid episodes of incontinence. Instead they are just asked about actual episodes of incontinence serious enough to require a change of clothing. Yet you score six vital points if you are at risk of losing control if you don’t stay close to a toilet. In other words, you may be able to score points for ‘Controlling your bowels and bladder’ even if you have never had an actual episode of incontinence.
If this is the case for you, then it’s crucial that you give evidence about it on your questionnaire, even though you aren’t asked to.
Again, we give more details in our guide.
Beyond the activity
The problems with the new questionnaire don’t end with physical health issues, either, but extend well into the mental health and learning difficulties assessment.
In relation to learning tasks, for example, you score 6 points if you can’t learn anything ‘beyond’ a moderately complex task such as operating a washing machine. There is no guidance about what a task ‘beyond’ operating a washing machine might be. But it could, perhaps, be something like driving a car. Yet the form only asks about whether you “learn how to do a more complicated task such as using a washing machine”, not whether you can learn anything beyond that. Equally, the guidance given to health professionals does not explain this issue.
It may seem like a small point, but it means that anyone who can learn to operate a washing machine will automatically score zero points when, in reality, they may be entitled to 6 points. So, if there is a reason why you would struggle to learn anything more complicated than operating a washing machine, then give evidence on your form and be prepared to argue it at a tribunal if you aren’t awarded points.
In relation to ‘awareness of hazard or danger’ the questionnaire only asks you to say if you can ‘keep yourself safe’. Not a word about damaging things or, indeed, other people.
Yet you score as many points if you are at risk of damaging property or possessions - or of harming other people - as a result of your mental health or learning difficulties as you do if you are at risk of harming yourself or others due to a lack of awareness.
So you absolutely should give examples of times when you have damaged property as a result of your lack of awareness, if this is the case, even though you are not asked to do so.
Fight for what’s right
These are just some examples of what we consider to be misleading questions or incorrect guidance, our guides detail many more.
So please don’t complete the ESA50 questionnaire just by answering the questions it asks. Do that and you run a real risk of being refused ESA, not because you don’t qualify but because you’ve been conned into only giving half the evidence.
Instead, subscribe to Benefits and Work. In less than a minute you can download our guides and begin the long job of building a case that will stand even the test of an appeal tribunal, if that’s what it takes to get a just award.
Benefits and Work members can download the following three new guides to employment and support allowance from this link.
Understanding Employment and Support Allowance
Our introductory guide to ESA (42 pages).
Employment and Support Allowance claims on physical health grounds: a guide to the work capability assessment.
This is a fully comprehensive guide to the assessment procedure for the work-related activity group and the support group on physical grounds. (70 pages)
Employment and Support Allowance claims for Mental Health and Learning Difficulties: a guide to the limited capability for work assessment.
This is a fully comprehensive guide to the assessment procedure on mental health and learning difficulties grounds. (75 pages)
New ESA medical questionnaire cons claimants
14 April 2011