HOW THE JUDICIAL REVIEW WENT

Mental Health Resistance Network

In case anyone hasn't seen this on the MHRN facebook page:

HOW THE JUDICIAL REVIEW WENT!

The judicial review was scheduled for three days although we thought that it would only last for two. In the event, it lasted for the whole three days and there was a member of the MHRN in court at all times.

The claimants were asking that further medical evidence should be sought by the DWP from a person's own health care professionals prior to the ESA50 form being sent out for all people with mental health problems (called MHPs in court). We believe that obtaining evidence at this stage will enable some people to be spared the distress of having to attend the face to face WCA interview and, where they do have to attend it, at least the assessor would know something about their condition and how it affects their functionality rather than the claimant being entirely at the mercy of the Atos computer and an unqualified Atos 'Health Care Professional'. This in turn might spare some people from going through the misery of having to appeal. And, importantly, it would help identify people for whom regulations 29 and 35 apply. These regulations cover where there would be a risk to a person if they were found fit for work or for work related activity even if they had less than the required number of points for ESA.

Obviously this change is only one way that the WCA needs to be improved on. Initially the MHRN was calling for the test to be completely scrapped but we are also realistic about what can be achieved. Who knows, it may be scrapped in a few years time but, in the meantime, we have to survive it.

Now to the court case.

The case was being brought under the Disability Discrimination Act and was heard by three judges in the Upper Tribunal Court. It began with much debate about how exactly people with MHPs were being disadvantaged in the process of claiming ESA and the case for the claimants was that the self reporting aspect was often, for a variety of reasons, difficult for people with MHPs. In addition, MHPs may not be able to obtain further medical evidence for themselves. The DWP barrister argued that there was already procedures in place to ensure that further medical evidence was sought in appropriate cases.

As well as the claimants' barristers there was a barrister representing, jointly, National Mind, Rethink and the National Autistic Society, who also argued the claimants' case and there was evidence written from consultant psychiatrists. It is hard to say, but, on balance, I felt that the existence of disadvantage may have been successfully established in court, but please, don't rely on my impression!

A lot of time was spent arguing about who the MHP claimants were being disadvantaged in comparison with. This was very much a technical point and an Equality and Human Rights Commission barrister was present to intervene here.

The claimants were asking that reasonable adjustments are made to rectify a disadvantage (the adjustment being that medical evidence be sought by the DWP in all mental health cases) and therefore the 'reasonableness' of this adjustment was also up for debate with the DWP unsurprisingly arguing that it was wholly unreasonable, cost being one factor, the burden on doctors being another, and so on.

So is there a disadvantage and in comparison with whom are MHPs disadvantaged? If there is a disadvantage, would the requested adjustment rectify this disadvantage? And is the adjustment 'reasonable'?

Obviously, as the case was being brought by individuals, there was some argument over whether the individuals concerned had been disadvantaged and whether the adjustments requested would have rectified that disadvantage. The DWP barrister tried every which way to counter the claimants' arguments.

The feeling among the members of the MHRN who attended the court was that the claimants got a fair hearing. The judges will be meeting with three high court judges and, I think I got this right, it is these high court judges who will be making the final decision. This will undoubtedly take some time to come through and we have no idea how it will go.

So fingers crossed!

Whatever happens, we'll never give up!

#esaSOS: YOUR HELP NEEDED URGENTLY!

#esaSOS

#esaSOS: YOUR HELP NEEDED URGENTLY!

On January 28th 2013 the UK government is due to make a set of changes to the Work Capability Assessment (WCA). The WCA is the flawed ‘fitness to work’ test which assesses whether sick and disabled people can get Employment and Support Allowance (ESA): a benefit designed to help and support very unwell or profoundly disabled people into work.

Although these changes have been advertised as small ‘amendments’, they will in fact have a huge impact on the way people’s illnesses and disabilities are assessed. Many vulnerable people’s needs will suddenly be able to be overlooked or ignored, meaning they could end up losing the support they desperately need to manage their conditions.

Hundreds of thousands of sick and disabled people across Britain need your help to fight these changes!

PROBLEM 1: FALSE ASSUMPTIONS

In the fitness to work test, your needs are assessed by a ‘healthcare professional’ employed by the French private company ATOS. This assessor doesn’t just need to look at your current difficulties. For example, they can also imagine how using an aid (e.g. a wheelchair) might improve your ability to work and make a judgement based on that – without even asking your opinion!

  

However, soon this “imaginary test” will be able to be used for many more aids (including guide dogs and false limbs!). This means that soon thousands more people could be judged as fit to work, without being asked about why the assessor’s “imaginary aid” might not be appropriate for them.

It gets worse. Even if returning to work may clearly put you at risk, these changes will mean you can still lose your disability benefit – as long as the assessor believes that trying a new therapy or treatment might reduce that risk. In other words: yet another guessing game, with your health at stake!

>>> Imagine Bert, who suffers from severe schizophrenia, but is found fit to work because a behavioural therapy may help improve his condition. Yet, in making that decision, the assessor would not have to look at several vital questions: how hard it would be for Bert to get that therapy? How long would an NHS appointment take to organize? Are there private options in his area – and could he afford them if so? What if the therapy doesn’t work, or takes a long time to adjust to? <<<

If the government’s rule changes go through, people like Bert who are desperate to work will find it nearly impossible to get an accurate assessment, affecting the quality of their support and even preventing their efforts to get back into work.

PROBLEM 2: SEPARATING PHYSICAL AND MENTAL HEALTH

The government is also trying to change the way people’s conditions are assessed by dividing health problems into two separate boxes: ‘physical’ and ‘mental’. When looking at what tasks people can do, only the ‘physical half’ of the test will apply to those with physical disabilities. The same goes for the effects of treatment: for e.g., if you’re taking mental health medication, only mental health side-effects will be looked at.

This completely fails to understand the way that many disabilities and illnesses can lead to both physical and mental effects. This is also the case for many common treatments: such as those for schizophrenia, Parkinson’s disease and multiple sclerosis.

>>> Think of Emily, who suffers severe, chronic pain because of nerve damage to her leg. Emily is among the 49% of chronic painsuffers who also suffer depression as a result of continuous pain. An assessor may see Emily as able to do some work as long as she takes strong painkillers for the rest of her life, meaning she could pass the ‘fitness’ test. Yet the painkillers may not deal with the depression caused by her condition. Painkillers have also often been shown to affect people’s wakefulness and decision-making. So taking the medication may affect Emily’s ability to do a job in a completely new way – yet these new problems would not need to be looked at by the assessor when making their decision! <<<

Pretending the effects of illnesses and disabilities can be separated in this way goes against all medical practice. Going even further, and using this method to ignore sick and disabled people’s needs, is at best hopeless policy, and at worst deliberate cruelty. We cannot let the government treat some of the most vulnerable people in British society in this way.

HOW YOU CAN HELP

The main way you can help is by spreading the message about these changes to ESA. The government have tried to sneak them under the radar – the last thing they will want is people talking about them! 

Here are some great ways you can raise awareness:

1) Email your MP (you can search by name or constituency at http://www.parliament.uk/mps-lords-and-offices/mps/);

2) Share this blog post on twitter (using the hashtag #esaSOS), Facebook and other social media; CLICK ON THE BUTTONS BELOW THIS POST TO SHARE ON TWITTER AND FACEBOOK

3) Email your friends and family a link to this post – or simply talk to them about it!

Again, the main way we can get the government to reconsider is by getting people to talk about the injustice of these changes. So please spread the word as far and wide as you can!

Thank you so much for reading this far. Now let’s make sure these unwanted, damaging benefit changes never see the light of day!

If you want to do more, please sign WOW petition and call on the government to think again. 
Sign here http://wowpetition.com and ask all of your friends to sign too