How To Deal With Benefits Medical Examinations

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Never Face Them Alone

This article describes how claimants for disability benefits can deal with the medical examinations by medical professionals, which for many claimants are central in deciding whether or not you are entitled to disability benefits.

Before The Examination

The examinations are run by Medical Services (MS) which is operated by the private profit making company ATOS on behalf of the Department for Work and Pensions (DWP). Before a MS examination your own GP sends info to the DWP. It is important that this info is as full as possible and states clearly whether or not in their medical opinion you are fit for work at that time and in the foreseeable future (at least 6 months ahead).

It is frequently the case that people with a long-term illness gradually minimise in their own minds the effect of their illness on their everyday lives and develop survival strategies to cope on a daily basis in an attempt to lead as normal a life as possible.

This can cause a problem as this habit when taken into a medical examination does not present a true picture of the illness and could be misleading. It might be helpful to discuss the reality of your illness and the limitations it imposes on your life with someone who knows both the illness and yourself well. The reality of your illness is what must be presented to the MS medical professional and to the DWP.

If you have a Medical Services examination, either at the MS office or at your home, always have someone accompany you. This is your right. We have often done this. They cannot refuse you this right – if they try then just insist you need someone with you.

To obtain benefits you are legally required to attend this examination, and the information obtained at the examination is used, within a legal framework, to decide on your benefit entitlement – it is therefore vital to make sure your legal rights are protected.

If the date for the examination is not suitable, eg your accompanying person cannot make it on that date, you can get the date changed. If you are unable to travel to the examination you can ask for a home visit instead. If you change the arrangements over the phone write to confirm the changes. You have the right to be seen by a medical professional of the same sex.

Meet the accompanying person beforehand to discuss what’s going to happen. Before the examination you should be clear that:

  • The examination can be halted to allow you to go to the toilet, have a glass of water, take a pill, or if you feel faint or ill.
  • The examination should only proceed if you feel happy to continue.
  • You should refuse to do anything that hurts or distresses you.
  • The person accompanying you should take a pen and paper and also a watch.
  • If possible, take a tape recorder. Take your medicines, and any aids you use, such as a walking stick or crutches.
  • You can claim travel expenses for going to the examination – but if you need to take a taxi you must contact the MS beforehand.

At The Examination

You should be aware that the examination begins on entry to the examination centre and does not end until you leave the centre. An evaluation of your medical condition does not only take place when you are in front of the examining doctor, but also potentially on your way into the building, in the waiting room, and on your way out. They could note the length of time you can sit without apparent discomfort, how you pick up your bag, etc..

At the examination the medical professional should:

  • Be courteous and considerate.
  • Spend some time explaining the purpose of the examination.
  • Ask if you are willing to be examined.
  • Ask you and give you time to explain YOUR OWN VIEW of how you are affected by your condition, including how it affects your ability to do day to day tasks like shopping, cooking, cleaning and so on.

The examining medical professional should not attempt to ‘manipulate’ parts of your body.

During the examination you should:

  • Make sure the medical professional realises the full extent of your illness/ disability, including any other conditions/ illnesses you may have. Remember, unlike your GP, this medical professional does not know your medical history.
  • Describe how you feel on a “bad day”, rather than on a “good day”.

If you are accompanying the claimant you should:

  • Write down the name of the medical professional, the place of examination, the time of starting and finishing the examination.
  • Take notes on everything the medical professional and the claimant say, what the Doctor asks the claimant to do and what happens. Especially note any aggressive attitude or manner adopted by the medical professional. Note the exact words spoken.
  • Intervene and ask for the examination to be halted if the claimant becomes unwell or distressed. The claimant should have a break until they feel well enough to continue.
  • Object to and stop any attempt by the medical professional to have the claimant do exercises which could injure or distress them.
  • You should have the examination stopped if the claimant is becoming ill or distressed for any reason. If the claimant is not fit to continue then the examination should be postponed until another day.
  • If the claimant’s distress is due to mistreatment by the medical professional, stop the interview, then say that you will be making a complaint with a request for an examination at a future date with a different medical professional.
  • Time the length of the examination and any breaks taken (some medical professionals have been known to exaggerate the length of time of the examination to make it appear more thorough than it was).
  • At the end of the examination ask the medical professional to read back their notes, to check that they have made an accurate record. If the medical professional refuses, then note that together with the reason given for refusing. If there seem to be any inaccuracies in the medical professional’s notes, check with the claimant, then if necessary ask the medical professional to change their notes. If they refuse then make a note of that, writing down exactly what they said.

After The Examination

If the medical professional did anything wrong, then as soon as possible afterwards write a letter of complaint to DWP – don’t wait for the decision to come through. The letter should be signed by both the claimant and the accompanying person.

How You Can Be Found Incapable Of Work Even If You Don’t Score Enough Points

Even if you don’t score enough points under the personal capability assessment – the medical test to decide if you’re incapable of work – you may still have a chance of being found incapable of work either at claim or appeal stage. This is because of the little known ‘exceptional circumstances’ rules.

There are a number of these, but probably the most important is regulation 27(b), which states that you will be found incapable of work if:

  • “There would be a substantial risk to the mental or physical health of any person if he or she were found capable of work’’

This regulation could apply to you on physical health or on mental health grounds.

For example, if you experience severe anxiety attacks and might harm yourself or somebody else if placed in a situation you find threatening, then this might be grounds for applying regulation 27(b).

Or you may have a lung condition which is made much worse by stress and, in the past, such situations have led to a serious deterioration in your health and perhaps hospitalisation. If you would find being found capable of work, having to sign on for Jobseekers Allowance (JSA) and take part in training or work experience very stressful, then that may be grounds for declaring you incapable of work under the exceptional circumstances regulations.

However, neither doctors nor decision makers are quick to identify people who might be covered by these clauses. And very few claimants even know they exist.

ATOS And The Bigger Picture

atos2

ATOS are currently recruiting more staff to help meet Government targets to force more people off disability benefits to reduce the public debt problem caused by banks gambling in the financial markets. The process is driven by cost cutting not objective medical opinion. The most vulnerable in society are being made to pay for the greed of others and the inevitable booms and busts of capitalist economics.

Medical professionals, including physiotherapists, with no experience of mental health problems, for example, are only given a matter of days training before making assessments of claimants. They are paid substantially more than NHS doctors and nurses for leaving their ethical concerns at the door. ATOS claim that they do not make the decision as to whether someone can work and have their benefits reduced, but that the decision is made by the DWP from their report and that performance targets are based simply on the number of claimants seen in a day. However they admit that if a medical professional passes all claimants for disability benefits it will not go unnoticed.

This information has been reproduced from The Crutch Collective formerly Anti Benefit Cuts Glasgow

Please contact BPACC if you require any further information, support or advice. We are not experts in this field but will always show solidarity and try to help in whatever way we can.

Related links:
How to prepare for a ESA Tribunal Hearing – The Crutch Collective
ESA Internal Handbook via The Crutch Collective (pdf)
How points are awarded in ESA assessments via The Crutch Collective (pdf)
Links to factsheets relating to benefits, debt and mental illness – Rethink
Personal Independence Payment – Our free guide to making a claim – Disability Rights UK

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Victory as judges rule controversial disability benefits procedure is unfair

Republished from False Economy

Sent from Rethink Mental Illness, Mind and the National Autistic Society:

Wednesday 22 May 2013 – Three judges have ruled that the procedure currently used by the Department for Work and Pensions (DWP) to decide whether hundreds of thousands of people are eligible for Employment and Support Allowance (ESA) disadvantages people with mental health problems, learning disabilities and autism.

The judgment, which was made public at a high court hearing today, is the result of a judicial review brought by two anonymous claimants with mental health problems.

The charities Rethink Mental Illness, Mind and the National Autistic Society intervened in the case to provide evidence based on the experiences of their members and supporters.

The case centres on how evidence is gathered for the controversial Work Capability Assessment (WCA), the process used to determine whether someone is fit for work.

Under the current system, evidence from a professional such as a GP or social worker is expected to be provided by people themselves. There is no obligation for the DWP to collect this evidence, even on behalf of the most vulnerable claimants, apart from in some rare cases.

Seeking evidence can be very challenging for people with mental health problems, learning disabilities or autism whose health or condition can make it hard for them to understand or navigate the complex processes involved in being assessed.

As a result, those who need support the most are frequently being assessed without this important evidence being taken into account.

It was ruled that the DWP had breached its duties to make reasonable adjustments under the Equality Act 2010 and that the Department must do more to ensure this sort of evidence is collected and taken into account. This means the current procedure for the WCA puts some groups at a substantial disadvantage.

The three charities have hailed the ruling as a victory for people with mental health problems, learning disabilities and autism who are being put through a process which puts them at a disadvantage.

Paul Jenkins, CEO of Rethink Mental Illness said: “This ruling proves once and for all that this cruel and unfair process is unlawful. The judges have independently confirmed what our members have been saying for years – the system is discriminating against some of the most ill and vulnerable people in our society, the very people it is meant to support.

“The Work Capability Assessment process is deeply unfair for people with a mental illness – it’s like asking someone in a wheelchair to walk to the assessment centre. The Government is setting people up to fail.

“Now that the court has ruled that these tests are unfair it would be completely irresponsible to carry on using them. The Government must halt the mass reassessment of people receiving incapacity benefit immediately, until the process is fixed.

“This ruling will help improve one aspect of the Work Capability Assessment, but there are still many other problems with it. We will keep campaigning on behalf of everyone we represent until the whole process is fair for everyone.”

Paul Farmer, Chief Executive of Mind, said: “Mind welcomes the tribunal’s judgment, which has found that the claims process for Employment and Support Allowance (ESA) is unfair to people with mental health problems and that it has to change.

“The judgment is a victory, not only for the two individuals involved in this case, but for thousands of people who have experienced additional distress and anxiety because they have struggled through an assessment process which does not adequately consider the needs of people with mental health problems.

“Following this judgment, Mind hopes changes will be implemented quickly to ensure the claims procedure is fairer and more accurate.

“Mind has campaigned to improve the assessment process for many years and we will monitor the situation closely to ensure people with mental health problems receive the benefits they are entitled to.”

Mark Lever, Chief Executive of the National Autistic Society said: “The court’s decision is a victory for fairness. Now that the tribunal has ruled that the Work Capability Assessment process disadvantages people with autism, the Government must stop putting them through it until a more equitable system is in place.

“Those who devised this process failed to understand the complexities of conditions like autism. By the nature of their condition, people with autism can struggle to understand and articulate how their disability affects them – which is just what this current system requires them to do, by placing the burden on them to collect their own evidence.”

Read more:
The controversy around Atos Mental Function Champions
The judicial review taken by people with mental health illnesses

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Videos from the Benefits Justice Summit 9th March 2013, London

The start of Benefits Justice Summit

Winvisible

Mental Health Network

Using the law to fight the cuts – Wendy Pettifer (1 of 2)

Using the law to fight the cuts – Wendy Pettifer (2 of 2)

Using the law to fight the cuts – Liz Davies (1 of 2)

Using the law to fight the cuts – Liz Davies (2 of 2)

Closing session – Action plan

Building campaigns locally (1 of 2)

Building campaigns locally (2 of 2)

Tenants Federation

Food & Allied Workers Union

Pensioners Association

Single Mother’s Self-Defence

defend council housingdpac

right to work