Employment Support Allowance claim update: Exceptional Circumstances – Regulations 25 and 31 and Universal Credit.

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Regulations 25 and 31 will replace the old Special Regulations 29 and 35 when Universal Credit is rolled out.

However, the old Regulations 29 and 35 still apply to ongoing cases that are not yet affected by Universal Credit, and will remain in place indefinitely for all Contributions-based ESA. This means that most of you will use Regulations 29 and 35 at this time.

Income-based ESA will be replaced by Universal Credit, as it is rolled out, but there will be the same additional financial components added as we currently have for ESA – either the work-related activity or the support component.

The contents of both sets of Regulations are essentially the same. They are applied in the same way. 25 and 29 are for those who are not capable of work, and would usually be placed in the Work-related Activity Group, and 31 and 35 apply to those not capable of work-related activity, and would normally be placed in the Support Group.

Here are the new Universal Credit Exceptional Circumstances Regulations in full:

Regulation 25

25.—(1) A claimant who does not have limited capability for work as determined in accordance with the limited capability for work assessment is to be treated as having limited capability for work if paragraph (2) applies to the claimant.

(2) Subject to paragraph (3), this paragraph applies if—

(a) the claimant is suffering from a life-threatening disease in relation to which—

(i) there is medical evidence that the disease is uncontrollable, or uncontrolled, by a recognised therapeutic procedure; and

(ii) in the case of a disease that is uncontrolled, there is a reasonable cause for it not to be controlled by a recognised therapeutic procedure; or

(b) the claimant suffers from some specific disease or bodily or mental disablement and, by reason of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work.

(3) Paragraph (2)(b) does not apply where the risk could be reduced by a significant amount by—

(a) reasonable adjustments being made in the claimant’s workplace; or

(b) the claimant taking medication to manage the claimant’s condition where such medication has been prescribed for the claimant by a registered medical practitioner treating the claimant.

(4) In this regulation “medical evidence” means—

(a) evidence from a health care professional approved by the Secretary of State; and

(b) evidence (if any) from any health care professional or a hospital or similar institution, or such part of such evidence as constitutes the most reliable evidence available in the circumstances.

Regulation 25 outlines exceptional circumstances in which a person will be treated as having limited capability for work, but may be capable of work -related activities. People in these circumstances are placed in the ESA work-related activity group (WRAG)

However, there are further exceptional circumstances in which a person  will be treated as having limited capability for work-related activity in addition, and will therefore be placed in the ESA support group. These are outlined by Regulation 31.

Regulation 31 

31.—(1) A claimant is to be treated as having limited capability for work-related activity if—

(a) the claimant is terminally ill;

(b) the claimant is—

(i) receiving treatment for cancer by way of chemotherapy or radiotherapy;

(ii) likely to receive such treatment within six months after the date of the determination of capability for work-related activity; or

(iii) recovering from such treatment, and the Secretary of State is satisfied that the claimant should be treated as having limited capability for work-related activity;

(c) in the case of a woman, she is pregnant and there is a serious risk of damage to her health or to the health of her unborn child if she does not refrain from work-related activity; or

(d) the claimant is entitled to universal credit and it has previously been determined that the claimant has limited capability for work and work-related activity on the basis of an assessment under Part 5 of the Universal Credit Regulations 2013.

(2) A claimant who does not have limited capability for work-related activity as determined in accordance with regulation 30(1) is to be treated as having limited capability for work-related activity if—

(a) the claimant suffers from some specific disease or bodily or mental disablement; and

(b) by reason of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work-related activity.

___________________

Advice regarding EXCEPTIONAL CIRCUMSTANCES – Regulations 25, 29 31 and 35. 

Because of the tick-box nature of the ESA50 form, it is likely that people will fall below the number of points required to be declared incapable of work – it doesn’t take into account variable illnesses, mental illness, or the effects of having more than one illness.

However, the Exceptional Circumstances Regulations may cover us – they both state that the claimant should be found incapable of work (Regulation 29 for ongoing ESA claims, 25 for U.C. ) or work-related activity (Regulation 35 for ongoing ESA claims, 31 for U.C.).

These two essential paragraphs are an important part of both the old and new Regulations, and can be used in the same way, if:

  • “they have an uncontrolled or uncontrollable illness, or “the claimant suffers from some specific disease or bodily or mental disablement and
  • by reason of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work/work-related activity.”

If you feel this is your circumstance, then we suggest adding something like this, where you put “other information” on the ESA50:

“If the scoring from my answers above is insufficient, then I believe applying the Exceptional Circumstances Regulations would be appropriate due to the severity and interaction of my conditions, and my inability to reliably, repeatedly and safely encounter work-related situations and/or safely perform work-related tasks.

I am taking all available and appropriate medication as prescribed by my doctor(s), and there are no reasonable adjustments to a workplace which would mitigate my medical condition(s).

Therefore I believe being placed in the Support Group would be appropriate, because there would be a serious substantial risk to mental and/or physical health if I were placed into a workplace environment or in the work-related activity group.”

Please change the wording to fit your situation, delete “mental” or “physical” if appropriate, leave both in if necessary. If your illness cannot be controlled at all, or medication can’t be used to control it, add that instead.

Legally, both of these exemptions must be applied to all cases where a “serious” or “substantial” risk of harm is likely, should the person be found to be either capable of work, or capable of work-related activity. This is the statutory interpretation.

Regulations 25 and 29 cover people who might be put in the Work-Related Activity Group (WRAG), which has work-focused activities, sometimes it has workfare placements, and sanctions may apply if you are unable to meet the conditions of eligibility for your ESA, while Regulations 35 and 31 cover people who are not fit for any kind of work activity. This is for people who might be placed in the Support Group. There are no conditions placed on you for getting your ESA, such as workfare, if you have limited capability for work-related activity.

So do bear in mind that Regulations 31 and 35 are specifically related to limited capability of work-related activity, and that you will need to invoke 35, (or 31 if you are now claiming Universal Credit, and not eligible for contributions-based ESA,) if your circumstances are such that the support group is appropriate, rather than the work-related activity group (WRAG), as work-related activity would present a substantial or serious risk of harm.

You can ask your doctor to support you with this, as stated in the regulations:

“(b) evidence (if any) from any health care professional or a hospital or similar institution, or such part of such evidence as constitutes the most reliable evidence available in the circumstances” may be presented to support your case.

This is based on the Statutory Interpretation of the Regulations.

Here are some links to download and print some documents that you can give to your GP to support your claim or appeal. You ought to submit copies of these to the DWP as soon as you can. (Make sure that you keep a copy).

In some cases, this may mean that your case will be reconsidered in your favour without having to wait for a tribunal hearing:

Please remember: Regulations 29 and 35 still apply to all ongoing cases, and will remain in use for all contributions-based ESA claims. Regulations 25 and 31 apply to Universal credit.

These templates are for ongoing ESA claims and Contribution-based ESA:

(CLICK)    Cover letter for your GP

(CLICK)    ESA Appeals Letter for your GP

(CLICK)     Legal Advice of Counsel for GPs: Prevention of Avoidable Harm Interpretation and Application of ‘Substantial Risk’ ESA Regulations 29 & 35

With many thanks to the Black Triangle Campaign for sharing these very helpful documents.

If you are one of the few claiming Universal Credit in one of the pilot areas, and you are not entitled to contribution-based ESA then Regulations 25 and 31 now apply, and you will need to amend the templates, as they currently reflect the Regulations most likely to be applicable at this time.

As yet we don’t know for sure when and even if Universal Credit will be rolled out in full. I will update this article when we know more about this.

For all ongoing cases where Universal Credit does NOT apply, (which is the majority at present) and for ALL Contributions-based ESA claims:

Regulation 29

29.—(1) A claimant who does not have limited capability for work as determined in accordance with

the limited capability for work assessment is to be treated as having limited capability for work if:

paragraph (2) applies to the claimant.

(2) This paragraph applies if—

(a) the claimant is suffering from a life threatening disease in relation to which—

(i) there is medical evidence that the disease is uncontrollable, or uncontrolled, by a recognised therapeutic procedure; and

15(ii) in the case of a disease that is uncontrolled, there is a reasonable cause for it not to be controlled by

a recognised therapeutic procedure; or

(b) the claimant suffers from some specific disease or bodily or mental disablement and, by reasons of

such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work.

Regulation 35

35.—(1) A claimant is to be treated as having limited capability for work-related activity if—

(a) the claimant is terminally ill;(b) the claimant is—

21(i) receiving treatment by way of intravenous, intraperitoneal or intrathecal chemotherapy; or

(ii) recovering from that treatment and the Secretary of State is satisfied that the claimant should be treated as having limited capability for work-related activity; or

(c) in the case of a woman, she is pregnant and there is a serious risk of damage to her health or to the health of her unborn child if she does not refrain from work-related activity.

(2) A claimant who does not have limited capability for work-related activity as determined in accordance with regulation 34(1) is to be treated as having limited capability for work-related activity if—

(a) the claimant suffers from some specific disease or bodily or mental disablement; and

(b) by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work-related activity.

Some thoughts on the implications of the other changes.

30.—(1) For the purposes of Part 1 of the Act, where, by reason of a claimant’s physical or mental condition, at least one of the descriptors set out in Schedule 3 applies to the claimant, the claimant has limited capability for work-related activity and the limitation must be such that it is not reasonable to require that claimant to undertake such activity.

(2) A descriptor applies to a claimant if that descriptor applies to the claimant for the majority of the time or, as the case may be, on the majority of the occasions on which the claimant undertakes or attempts to undertake the activity described by that descriptor.

(3) In determining whether a descriptor applies to a claimant, the claimant is to be assessed as if—

(a) the claimant were fitted with or wearing any prosthesis with which the claimant is normally fitted or normally wears; or, as the case may be

(b) wearing or using any aid or appliance which is normally, or could reasonably be expected to be, worn or used

___________________

Two broad concerns arising in light of the Regulation changes are that there is significant scope for the assessor to speculate and make assumptions about those being assessed, and there is a limitation regarding what symptoms can be considered in which parts of the assessment (as is evident in the new descriptors.) Such consideration has been narrowed in focus and subdued by the amendments, which clearly and strictly polarise illnesses into physical or mental categories. Both of these problems may lead to an over-estimation of a person’s capability for work.

The exceptional circumstances provision originally in Regulation 29 has been changed. Trying to demonstrate that a person would be at “substantial risk” in a workplace will now also involve considering whether any “reasonable adjustments” in the workplace or if prescribed medication would significantly reduce such a risk. The amendments would allow any potential risk resulting from a person being found fit for work to be ignored if a reasonable adjustment, or taking prescribed medication would hypothetically offer significant reduction of that risk.

The Atos assessor has previously been able to assume that a person could use some aids that they do not actually use, and theoretically determine what the person’s capability would be using those aids. Many people have experienced the difficulties presented by the “imaginary wheelchair test” – the assessor decides they would be mobile with a manual wheelchair, often contrary to the appropriateness or availability of a wheelchair for that person. The amendments to the Regulations have extended this to include imaginary prostheses and guide dogs under the “could reasonably be used” criteria to most parts of the assessment.

Any “reasonable adjustments” to “the workplace” are very hypothetical and can never be guaranteed. Nor may they necessarily be effective in the event that they are actually carried out. The assessor does not know the person claiming ESA or their long term medical circumstances, or whether the use of such aids would be consistent with their current management programme, or whether any theoretical aids would be suitable in reality.

There is no guarantee that in the event of a person obtaining these aids  they would actually be capable of work. This imaginary exercise will not be discussed with the person making the claim; they are simply going to be refused benefit on the basis of hypothetical aids and appliances. “Reasonable adjustment” may include cases where the risk is still considerable, if it is significantly reduced by hypothetical adjustments, it can be ignored. There is no explicitly stated requirement to take into account side-effects of medication.

This is worrying for more than one reason. There seems to be an implicit suggestion that medication ought to be enforced. For obvious reasons that is very troubling. It has serious implications for issues of medical consent, and patient rights.

The amendments made to the Work Capability Assessment descriptors will mean that claimants can only score on either the physical descriptor for a physical illness or the mental descriptor for a mental illness. Part One of the Work Capability Assessment activities will only accommodate the effects of “a specific bodily disease or disablement,” while Part Two of the WCA  will only allow consideration of the effects of “a specific mental illness or disablement.” Similarly, only side-effects of treatment for physical conditions will be considered in Part One, and side-effects of treatment for mental illnesses only in Part Two.

Using prescribed medication as a purely theoretical “reasonable adjustment” provides scope for a lot of speculation presented as “evidence” regarding the efficacy of medications. For many of us, medication is “experimental” and often trialled initially, and effectiveness and side-effects vary hugely from person to person. Medications for mental health problems produce physical side-effects, and vice-versa. A person who suffers severe chronic pain from physical illness or injury may take strong pain medications that severely compromise their cognitive ability, but it would seem the amended regulations would require that this effect is disregarded.

Many illnesses that are not yet well-understood have a full spectrum of physical, mental and cognitive symptoms. Examples include autoimmune illnesses such as Rheumatoid Arthritis, Lupus, MS, ME and Fibromyalgia. There is often a fundamental interconnectedness of physical and mental health, yet the amendments demand a clean separation of physical, mental and cognitive effects of illness.

As stated, medications for these illnesses are invariably “experimental”, and the efficacy of treatments is widely unpredictable, as are the potentially severe and often “black box” side-effects. For example, a common treatment for autoimmune illness such as Lupus and Rheumatoid Arthritis is a chemotherapy called methotrexate, usually given in a weekly dose, by injection or taken orally. Side-effects commonly include nausea and vomiting, ulcerative stomatitis, dizziness, drowsiness, headache, hair loss, blurred vision or sudden loss of vision, seizures, confusion, weakness or difficulty moving one or both sides of the body, loss of consciousness, vulnerability to overwhelming infections such as pneumonia.

Less common side effects of methotrexate include sudden death, liver failure, kidney damage and lung fibrosis. There is no way of predicting most of these side-effects. Of course this treatment is not handed out like sweets by doctors, and there is very careful consideration given to the risks carried with the drug, which are carefully weighed against the substantial risks presented by the serious illness to be treated.

Many autoimmune illnesses may also cause death, lung fibrosis, kidney and liver damage and blindness. How can it be that a person so ill, and taking such a risky medication could be deemed even remotely capable of work, and that such a treatment could be seen as a “reasonable adjustment” to allow that judgement?

A grave concern is that this will mean additional challenges for many sick and disabled people at a time when the Tribunal Service is hugely overworked and struggling to accommodate the sheer volume of appeals regarding wrongful decisions, and the waiting times for Hearings are stretching out, leaving very vulnerable people without the essential support they need to live. Now there is the additional requirement for providing evidence regarding the “reasonable adjustments” amendment, and I doubt that hypothetical evidence will suffice.

It seems that the Government have simply extended legislative opportunities to further reduce “eligibility” for ESA. I don’t believe these changes and omissions are casual: they are about limiting successful claims and appeal outcomes.

From the moment we begin a claim by filling out the form, we know that every single question asked is designed to justify ending our claim for ESA and aimed at passing us as “fit for work.” That is what Atos are contracted to do by the Government. This is not a genuine medical assessment, but rather, a created opportunity for the Government to take away the financial support that we are entitled to. Every change in legislation related to benefits and support for sick and disabled people that has been made by the Coalition has been aimed at limiting successful outcomes for claims for those benefits.

It’s therefore important that we explore the implications of legislative changes like this, because the additional information helps us to pre-empt potential new difficulties we are likely to encounter with the claim process, it allows us to plan in advance how we can find effective ways around anticipated problems, and so improve the outcomes of our ESA claims.

Further information:
The Black Triangle Campaign:  Applying ESA Regulations 29 and 35 (see note for 25 and 31)

Employment and Support Allowance: 2013 Regulations in full Explanatory memorandum to all benefits 2013: Full legislation document  Exceptional circumstances: Employment and Support Allowance Regulation 25
Exceptional Circumstances: Employment and Support Regulation 31
Changes to the work Capability Assessment : Regulation 15
Rapid response EDM: 
Commons’ motion to annul the Employment and Support Allowance regulations
The new Work Capability Assessment 2013:DWP Guide
The Employment and  Support Allowance Regulations 2008 (as amended) – judiciary.gov.uk Clause 99 and important changes to the appeal process: Clause 99, Catch 22 – The ESA Mandatory Second Revision and Appeals

V-STARTU

Written by Sue Jones.

With huge thanks to Jane Clout for her considerable support with this in clarifying the circumstances regarding which Regulations may be used. It’s important to know that the new Regulations won’t be applicable to most people until Universal Credit has been rolled out.

With many thanks to The Black Triangle Campaign for sharing their work on the GP support letter template, and covering legal and explanatory documents

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65 thoughts on “Employment Support Allowance claim update: Exceptional Circumstances – Regulations 25 and 31 and Universal Credit.

  1. Once again, I would like to thank you Kitty and Robert, for the invaluable work you are doing on this site to help people in these difficult circumstances. Words cannot express my gratitude for the feeling of support and for the helpful information I have learned about from the work you are doing. And for how it also links to other sources of support too.

    It has been so helpful in providing a balance to the overwhelming fear I have been experiencing as a result of the affect the Govt/HMCTS//DWP/Atos’ bullying bureaucracy has had on me.

    I hope the thousands of others who are experiencing the same bullying will find this website too, because it is an oasis of sanity in the midst of what seems a callous and uncaring situation.

    Your work has inspired me to start compiling a weblog recording my experiences too. I hope it is okay that I have referenced and copied some information posted here and added links to this site there too. It is a personal account and is helping me process what is happening to me, but I hope while helping me to understand what is happening to me, if people read it that the links on it will lead people to yours and other sites that are discussing the injustices of the ESA claims procedure and providing help, support and empathy.

    Thank you.

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    1. Hi Luke, I am very glad that the work is useful, and has helped. The bullying is terrible, I know having been through the assessment and tribunal. It’s very difficult to accept that we have a government that is capable of such inhumane policies, and a public that seems to turn a blind eye to what is happening.

      I am delighted that you have started to write a blog, it helps. You are right about the processing and sharing too, this has become a place for mutual support, as well as providing information for each other, I am very happy for you to share anything from my site, I am always glad to see the information get out as widely as possible.

      And this is how we will get through these very difficult times, by supporting each other and keeping each other up to date with changes and things we need be aware of.

      Thanks Luke. Take care 🙂

      Like

  2. Always excited to see new writing from Kitty Jones. As ever, the meat is strong. I have long complained that much designed to benefit the disabled has not been adequately considered from the user perspective. The exceptional circumstances clause is a prime example of this problem. A surfeit of parameters where they should not be, and a lack of parameters elsewhere. What is reasonable? An assessor may decide I could work if a fictional nurse and kidney machine were standing by for my needs.
    One thing well established by examples seen everywhere on the interweb, is that the assessors themselves frequently lack empathy and understanding. Could we then expect them to make reasonable assessments? I question the sanity of many of the assors in reported cases, if not the humanity. An unreasonable person will have strsnge ideas about what may be reasonable, particularly when theoretical objects such as a theoretical medicine, wheelchair, kidney machine or jesus could be postulated. The DWP here are simply grasping at possibles whilst denying improbables. Once again the coalition tramples rights and sanity underfoot to enact a poorly conceived and disastrous ideology from lalaland. Thank you for this insight

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  3. Thanks Gina, and I agree that once again – “rights and sanity are trampled underfoot to enact a poorly conceived and disastrous ideology from Lala Tory land “.

    Given what Atos are contracted to do, I seriously doubt if there are any decent, well adjusted and emotionally healthy human beings amongst the staff. Perhaps this is about assessors disregarding the probable by grasping at improbable possibilities, so they can narrow eligibility to benefits even further. Sickness and disability sure ain’t what it used to be. You could have a precious shred of dignity and peace with an illness once upon a golden age of human rights observed.

    I only found out about the change in Regulations yesterday, it’s been rather quietly inflicted upon us. So this was an “emergency” quick information-sharing blog. Even Black Triangle didn’t now about this yet.

    I was interested to see the rapid response EDM tabled by Caroline Lucas back in January to annul the whole raft of these amendments. We are not alone in our incredulity and horror.

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  4. Well, that is yesterday wasted reading the old regs. KNEW the minute someone said it has changed JUST how it would have changed! Unless Black Tringle can go BACK to the Counsel who advised that ANY RISK of harm’ should be considered as viable grounds, the new wording gives them the right to force people to take medication they can’t tolerate- as in the USA

    I have CP (God knows what they will expect me to take for that?) Even though I was willing to work, even the narrow range of work I could do and was trained for I was deemed unsuitable for …by the people who trained me.

    In my case it was the anti depressant medication which made me incapable of work and left me with secondary brain damage. I am NOT TAKING MORE risks with my life through medication and unsuitable interventions!

    Incidentally. if a GP has just deemed me unsuitable to be a mother because of the risk I could pose to my unborn child and tried to force me to have an abortion why in hell am I not a similar risk to everyone else around me?

    You can bet your life that that which the GP used as evidence that I should not have a child would not make me incapable of work….

    Just like my family’s attitude to my life, really- I should/can work -not that I can find an employer who agrees – but if I cannot find suitable work I have to kick my heels for the rest of my life denied even the chance to have a family life- I’m not fit to have a child.

    The only decent job I ever had- unpaid- was terminated because a bigoted and disablist employee was afraid I would be given her job for no pay (this before the days of Workfare) Her excuse? ‘I might throw a client out of the window’.

    I only wish I had the strength…the defenistration of several people is long overdue!

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  5. I am so sorry to read what you have been put through ladycrookback. Coincidentally what you have written here connected simultaneously to something I was just writing about, specifically regarding the issuing of prescription drugs.

    When I was looking into applying for counselling in December/January I was directed to a site called Inclusion Matters.

    However, despite asking for counselling in December/January, it wasn’t until seeing the GP who is most familiar with my case in March that she set the process in motion.

    Getting the interview with the GP I had been familiar with over a number of years took me 6 months to make happen – in the meantime I was shoved from one relative stranger to another each time I had to try and get a Fit Note.

    The first of these strangers I met in October 2012 while trying to obtain a Fit Note after Atos had refused my claim and I had started an appeal. His attitude was completely shocking to me. It was one of seeming ignorance of what depression and anxiety are like, and how a patient with them should be handled. He told me I couldn’t carry on like this, that it was all over, and that I should snap out of it.

    A nice idea. If only it were that simple.

    In my understanding of psychology and counselling two things you are not supposed to do when working with a patient are:

    1. Undermine the patient’s validity by comparing their condition to someone else’s or your own and from which your examples recovered quickly and easily, with the addition that this is what the patient should be doing.

    Of course that would be a desirable outcome, but making such a comparison to someone suffering from long term mental health issues can have the opposite effect and make them feel alienated, misunderstood, that their condition is not valid, and can further undermine their depleted self-esteem. It adds pressure to an already pressurised psychic state. It reinforces the feeling that the patient is guilty for the condition they are in, to blame, at fault.

    2. Undermine the patient’s validity by suggesting that they are either pretending they have these conditions or that these conditions are easy to simply stop being in.

    Again this reinforces a patient’s feeling that they are somehow inferior, inadequate, because unlike others they cannot simply change this “easily managed” condition, or that they are somehow a liar for saying they suffer from these conditions, that they deserve no respect for deliberately acting like they cannot cope. Criminalising them.

    I know about this because I have studied a fair amount of academic literature on counselling and psychology myself.

    That particular doctor made both those invalidating errors in his interview with me, proving to me he either had no experience dealing with mental health issues, or in my more paranoid assessment at the time, he was acting on instructions from the same Government target policies that Atos were.

    That paranoia is understandable, considering the fact that for years I had been seeing the same GP and had built up a rapport with them, and they were familiar with my case history on a human level, not as mere information on a screen. It seemed more than a coincidence to me that straight after the Atos farce, I was suddenly blocked from seeing my regular GP, and was subjected to an inappropriate and insensitive interview procedure from a complete stranger. I was blocked from seeing that regular GP for 6 months leading up to my Tribunal Hearing. Strange coincidence.

    I haven’t mentioned that in the mental health business, GPs are expected and encouraged to meet targets with the prescribing of drugs, which is incentivised by rewards from big pharmaceutical corporations, but he also displayed the same seeming intention and was eager to prescribe Citalopram for me. He didn’t mention counselling. He was young, healthy, positive, had a good job and obviously hadn’t experienced anything remotely resembling the hardships I have experienced. His attitude was insulting and degrading. After forcing me through this humiliating interview he finally signed a Fit Note for me.

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  6. hi kitty thankyou for the information i never knew the regulation 29/35 had been changed to regulation 25 i may have to go through the so called ATOS medical soon ..i like many suffered disability all my life ..i have ten other illnesses too i take thirty five different drugs a day to keep me alive..if these people think that people such as i would be FIT to undertake assessments for work of employment they are mistaken..only medical g.p,s via consultants trained in medicine can diagnose a persons condition..these people employed by this government have no real knowledge in diagnosing people let alone say they are FIT to untake normal taske ..i had many tests many years ago proving a working enviroment would cause more damage to a sick and disabled persons health no matter the outcome .
    ATOS cannot say that a persons illness is as i would say GHOST symptoms when they are real .i have two life threatening diseases kidney failure to total failure and bosnaik 2 bladder cancer ..regressive rheumatoid arthritis i take methotraxate peripheral vascular disease hypotension ..diabetis .i am also an amputee.

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    1. Hi Carole, I hope you can use this information at the form filling stage, if not,at assessment.You have to be very clear and make sure that Atos know every detail of how your illnesses and all meds impact on your life, and all the risks.

      If you do need to go for assessment remember that every single question you are asked is designed to justify ending your claim for ESA and passing you as “fit for work.” That is what Atos are contracted to do by the Government. This is not a genuine medical assessment, but rather, an opportunity for the DWP to take away your financial support, which you are entitled to. I hope you don’t have to go, and that your claim is managed via your form alone. That does happen sometimes. But if you do have the assessment, this article will help you go prepared to win.

      This article has more info, with a lot of detail about the actual assessment, it’s really worth a read – . https://kittysjones.wordpress.com/2013/04/21/1560/

      Like

      1. Regulation 25&31, with 31 covering limited capacity for work-related activity. Could you edit the post to reflect that? I may have just demonstrated that 31.2 applies in the time it took me to find it.

        Like

      2. Hi PC, yes quite right that we need to include limited capacity for w -r activity also. I found it, and will go through the whole Reg when I’ve had sleep and my mind feels like being something close to organised again. 🙂

        The thing about people campaigning for rights for disabled people is they are often sick and disabled too 🙂

        Seems quite a bit of overlap with Reg 25 and some of 30 as well. Here it is:

        Determination of limited capability for work-related activity

        30.—(1) For the purposes of Part 1 of the Act, where, by reason of a claimant’s physical or mental condition, at least one of the descriptors set out in Schedule 3 applies to the claimant, the claimant has limited capability for work-related activity and the limitation must be such that it is not reasonable to require that claimant to undertake such activity.

        (2) A descriptor applies to a claimant if that descriptor applies to the claimant for the majority of the time or, as the case may be, on the majority of the occasions on which the claimant undertakes or attempts to undertake the activity described by that descriptor.

        (3) In determining whether a descriptor applies to a claimant, the claimant is to be assessed as if—

        (a)the claimant were fitted with or wearing any prosthesis with which the claimant is normally fitted or normally wears; or, as the case may be
        (b)wearing or using any aid or appliance which is normally, or could reasonably be expected to be, worn or used.
        (4) Where a determination has been made about whether a claimant—

        (a)has limited capability for work-related activity;
        (b)is to be treated as having limited capability for work-related activity; or
        (c)is to be treated as not having limited capability for work-related activity,
        the Secretary of State may, if paragraph (5) applies, determine afresh whether the claimant has or is to be treated as having limited capability for work-related activity.

        (5) This paragraph applies where—

        (a)the Secretary of State wishes to determine whether there has been a relevant change of circumstances in relation to the claimant’s physical or mental condition;
        (b)the Secretary of State wishes to determine whether the previous determination about limited capability for work-related activity or about treating the claimant as having or as not having limited capability for work-related activity, was made in ignorance of, or was based on a mistake as to, some material fact; or
        (c)at least three months have passed since the date of the previous determination about limited capability for work-related activity or about treating the claimant as having or as not having limited capability for work-related activity.
        (6) In assessing the extent of a claimant’s capability to perform any activity listed in Schedule 3, it is a condition that the claimant’s incapability to perform the activity arises—

        (a)in respect of descriptors 1 to 8, 15(a), 15(b), 16(a) and 16(b)—
        (i)from a specific bodily disease or disablement; or
        (ii)as a direct result of treatment provided by a registered medical practitioner for a specific physical disease or disablement; or
        (b)in respect of descriptors 9 to 14, 15(c), 15(d), 16(c) and 16(d)—
        (i)from a specific mental illness or disablement; or
        (ii)as a direct result of treatment provided by a registered medical practitioner for a specific mental illness or disablement.

        Like

  7. i don’t know who I talking to or if what I say is allowed but I was diagnosed diabetic in 1998 not knowing for two years b4 I had the illness but I did and it caused me to have irreparable damage to my legs I find walking ery painful and sitting and standing just as bad I have morphine patches on both legs to make walking possible not pain free or bareable just possible and now the same thing is happening to my arms I am lucky enough to hae an 8 year old son who helps me live yet I cant claim benefits for him his mother does that and now with the bedroom tax the council tax and the rent I have to pay already I can not afford to eat proper I think I will be dead soon because off this government I just don’t understand why the law gives you so much to live on then you get billed for rent and taxes cause the law says you legally get more than you should well thanks for listening I hope people like you win in the end for people like me alas its to late for me just say thanks to david Cameron for me what he just paid for a millionaire maggies funeral would have kept me and a few thousand people like me safe from homelessness or starving yours sincerely kevin shale from Coventry England but living in Glasgow

    Like

    1. Hi Kevin, I am very sorry to hear about your circumstances, and your health. I know a little bit about nerve pain, as I suffer myself. I’m glad you have help and support from your son. Can’t your ex give you some money to help support your son when he is with you? I know how hard we are being hit by the council tax, bedroom tax and extra rent. Do you claim ESA?

      Yes the amount spent on Thatcher’s funeral was obscene, and the amount the government have just handed out as tax breaks for the wealthy – £107, 000 each per year. That’s Tories for you. They steal our meagre benefits and support that WE paid tax for, and give it away as handouts to the rich.

      It hurt to hear how down you are, and if you need to talk privately, let me know, and we can. I know how wearying it is when every day is a fight just to survive. The government are getting less of their own way, so take heart. Their days are numbered, and they most certainly won’t win an election.

      You are not alone and there are many of us affected by these cruel changes. It’s difficult but we have to stay as strong as we can, and fight to be heard, and to see some fairness. We all need to stand together in this and support each other when needed, too. We are all we have at the moment. But the European Commission of Human Rights are now on our side, and have recognised the abuses of our human rights that much government policy has brought about. It’s a hope inspiring recognition for us. 🙂

      At the bottom of the article I’ve posted here, there’s a help section, and the links are in blue. Look for this at the bottom of the article and click on the links, they may be of some help to you. Also click on the link that is about help with rent called “Discretionary Housing Payments” to see if you can get some support from your council with rent. I hope you can find some help from the info.

      These are what the other links look like, just above the picture at the bottom of the article:
      Help: Potential sources of funding from Charities and Trusts that help people out of poverty and debt:
      United Utilities
      3000 benevolent funds
      Directory of National food banks
      Representing yourself in Court

      https://kittysjones.wordpress.com/2013/01/30/735/

      Like

  8. well i didn’t understand most of it. i have a hiatus hernia and a fibrotic stricture plus bowel problems that are on -going and likekly to get worse ,i have black outs from epilespsy .yet i’m fit for work ,so all that is written here is a load of waffle .did you know david cameron has a relative that works for athos?

    Like

    1. Hi Wendy, sorry you got told you are fit to work. If you read what I’ve written about, you will see that this is what the assessments are about – to tell you that you are fit to work and to deny you your benefits. I don’t write waffle 🙂 This article is making people aware that the law changed in January, making it even more difficult for us. But there is some advice to support people through, too. I wrote this so people know about the changes and can prepare better for their claims and assessments. Are you going to appeal? You have the right to..

      I didn’t know Cameron had a relative working at Atos, but it doesn’t surprise me at all

      Like

  9. Thank you very much. I’m I the support group for now, but meet none of the descriptors. I will need reg 25 when I am reassessed.

    Did you know that of the people whom Atos had decided had a prognosis of “not likely to work in the longer term” 8,500 were put in the WRAG. Thus some non medically trained person overruled not even the clients doctors but also the Atos “healthcare professional”. Basically because the SG descriptors are way too tight. This is info from Hoban. God knows how many were found fit for work.

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  10. hi kitty thanks for this but I do have to bring up 1 point and that is the fact that dwp/atos have been found out that they don’t read the esa50 forms when returned from the claimant, all they do is count them and split them into 2 piles regardless whats on the forms then they just send out wcm appointments. I have yet to hear about anyone that returned the esa50 form and not have to attend a wcm

    Like

    1. I know 4 people that have not needed to attend for assessments and have been assessed without a formal appointment. This said, that may have been because of exemption due to their condition or treatment.

      I wrote another article based on information provided by a former Atos employee. The forms are certainly read on the day of the assessment,I was told, and even things like handwriting and coherence on the forms are actually assessed as well

      https://kittysjones.wordpress.com/2013/04/18/what-you-need-to-know-about-atos-assessments/

      Like

  11. Once again Kitty, thanks for the incredible work you are doing here. I must admit I have been finding it very difficult to focus and try to get through all the information. When a person already has disabilities, it makes it doubly exhausting to have to do the kind of work dealing with the kind of information processing this situation is demanding.

    It seems a lot of people out there have no concept of what that means sometimes, but to me it is another indicator of just how unfair it is the way these disgusting policies target the most disadvantaged. A lot of people don’t seem to care at all, and even some whose hearts might be in the right place seem to be unable to grasp what it is like, or grasp the urgency of the situation, and even though they probably would find it easier to understand the complexities of the information, and easier to sit down, write about it, organize it and help others with less capacity for that, it seems to fall to the people for whom it is more difficult to actually do that work.

    Like Esther McVey saying “Oh yes, the changes are tough, but it will all turn out great in the end” as she sips on her wine and stares at herself in the mirror adoringly, while thousands of people’s lives are ruined.

    Like

  12. I found this: “There are also further circumstances in which a claimant will be treated as having limited capability for work-related activity. Claimants would be treated as having limited capability for work-related activity in the following instances:

    ESA214 – January 2013 11 A guide to Employment and Support Allowance – The Work Capability Assessment

    * terminally ill, defined as having a progressive health condition, as a result of which
    death can be reasonably expected within 6 months
    * awaiting, receiving or recovering from cancer treatment by way of radiotherapy and / or
    chemotherapy irrespective of route. Where the Secretary of State is satisfied the
    claimant should be treated as having limited capability for work-related activity based on
    the available evidence about a claimant’s condition and the impact that the treatment
    has on their ability to work and nature of the treatment the individual is receiving.
    * for a pregnant woman, there is a serious risk of damage to her health or to the health of
    her unborn child if she does do not refrain from work
    * suffers from some specific disease or bodily or mental disablement and by reasons of
    such disease or disablement, there would be a substantial risk to the mental or physical
    health of any person if the claimant were found not to have limited capability for work-related activity.”

    Like

  13. Hi Kitty,

    I just wanted to know if you, or anyone else has had the revolting Council Tax DEMAND aggressive letters starting to come in now, when you have fallen behind with weekly payments. ???? They have charged me a 500 pound Bill. Charging me extra for having a ‘non dependent’ son. My son is still very dependant on me. He is in college,full time student, and has NO income. .He can not even claim JSA. Has had his EMA abolished. Council know this and still say I have to pay for him.

    What is really starting to scare me now is the nasty aggressive tone of the late payment letter I got today. They said I am behind payments this month of 120 pounds, if I do not pay in 7 days they will add court charges of 95 pounds on top of the 500 pound bill. Also threatening the lovely bailiff men of theirs to ransack my POOR little flat. They stripped me of my incapacity benefit , my pride,dignity,happiness,security and my hope, now their going to strip of my few belongings.

    Well here is the scary bit, only get 71 a week as ESA was annihilated as you know, I am on Assesment rate. OMG my overdraft is at its limit. Hello 71 pound a week for myself and son. We can not even buy food. We are now officially HUNGRY!!!! I can not pay this in 7 days. I fear how serious this is getting now. This will bankrupt me totally!!!!. I can even feel jail on the horizon. That is what they do to you also if you can not pay ,do they not?. I feel utterly sick, its nice news to receive Friday night I have to say. Thank you so much ,you kind caring Regime for allowing us to take part in this crippling monstrous bill. The lady at the council said its just to get people to come of their benefits and laughed. I’ve come to the end of the line now. I am giving up my studies and my course, I am too worried sick, and my arthritis pain is fluctuating with all the stress. I can not think straight. Abraham Maslow was not wrong. ‘No one will reach their potential if they do not have basic needs met such as food and shelter, struggling in survival mode’.

    Sorry if I have gone on a bit, its just I am really getting frightened now. Am a single parent, no family support what so ever. So just wondered if anyone else had a sky high council tax bill and nasty threatening letters already???? I have been crying tonight in despair. My heart has been racing a lot since I opened the rank rotten letter from the council. My ‘flight or fight response’ is on red alert I tell thee!!! All the catch 22 ‘s are making me livid!!! I am so angry now. Certainly can not talk to people about it esp waged people, as of all the smear campaigns that Government allowed.

    Like

    1. I have updates for new comments in threads for here which is why I noticed your comment, and I am so sorry to read what you have written Jenny. I know the kind of agony you are going through, and I just wanted to give you moral support. I know it is not much, and sadly there isn’t anything practical I can do. I haven’t had anything like this but it is a frightening thought how easily any of us could be subjected to this. I am horrified at what is happening in this country, and what is happening to you. I know it probably isn’t much of a suggestion, the last thing you need would be an unhelpful suggestion, and all it means even if it were a useful suggestion is yet more hassle, but would it be possible to speak to a Solicitor and get Legal Aid, or just advice, to at least get the Council Tax people to back off?

      I agree about Maslow, and I know exactly what you mean about Survival Mode and Fight of Flight. It is inhuman what is going on in this country. Disgusting.

      I wish there was more I could do to help, but please at least know you are spiritually not alone. I hope things will get better. I wish I knew where you could get help with this. Take Care, Luke

      Like

  14. Thank you so much for this site Kitty. I just discoved it today after fiinally asking for help. Am house bound with an assortment of illnesses but put in wrag. Have lodged appeal but too ill to know where to start.

    Like

  15. Thank you Luke, that is nice to know we are not alone in this scary time and situation. I can not go to our local CAB any more. Its been closed down. No more help!!!. Went there last month and a smarmy lady was hostile towards me, treated me with utter contempt, regarding my ESA appeal. She said we are not giving advice no more as from April 2013. She said ” i still think people are very lucky with the way government help them here in this country, I am from New Zealand and there is no help their from the government. You people are lucky here in Britain, it will take another generation to be made better, with this benefit weaning”

    I felt sick to my stomach after her revolting Discriminating comments. What did this vile women no about me? What was she doing working there? No help from CAB at all. Was glad to get out of there. There is so much hostility and discrimination every where. This Authoritarian Regime have done so much damage. To right it will take another generation to wean people of benefit. I must re word vile women’s comment from CAB to “too right, it will take another generation to get the message to disabled and sick people ,there is NO HELP!!!!, when you need it desperately. You are on your own if you become ill, seriously hurt, or get cancer!!!!. We don’t care!!!!!!. We are hostile to you pain!!!, you are on our own.!!! Yes people will get that message, and what a lovely message that is ,in this wonderful caring country. What lovely empathic people we are creating in this country.

    I will try and get advise some where Luke. Thank you. I was just shocked at the amount and the aggressive demand for this council tax bill.

    Like

  16. Is everyone aware IDS wrote a book before he got into politics? It has a diabolical review, apparently it was pathetic quoted by many readers, Was a total flop. Its called “The Devils Tune” well how ironic, I mean really!!!! What is this man on??? It reveals his state of mind do you not think? Apparently its a thriller and there is talk of Nazi Collaboration in it. Have not read it myself, cant afford it, and to be quite honest would not want to waste time on this man’s borring cods wollop tripe. But how strange and bizarre does anyone think so?. This man certainly does play a devils tune though, does he not. What is this man doing in charge of the welfare.

    Like

    1. Hi Jenny, Yes I knew about the “novel”, which was slated in reviews, lol. He is not a man known for any talents…

      But there ARE some interesting and disturbing parallels, psychically, which you have picked up on astutely, and did you know he visited Auschwitz too?

      Yes, indeed, what IS he doing in charge of our welfare, “The Devil’s Tune” represents a series of leaked psychologically profile- type clues and cues, if ever there were any anywhere, from the title, to the contents!

      Like

    1. OMG! kitty, you have read it!!! I will have to check it out I think. I will try and find these articles you have updated. Thank you. Now I understand the piece of art on Condemnations cover page with IDS at the Auschwitz gates.. J.Voids writings are great, and I like your site too, as you people talk about the Narcissistic Pathology and Authoritarian control we are now under. I like the art works on your sites really captures the scene at the moment. So he went there in 2009, he came back with much inspiration then.

      Kitty I want you to read a comment by a person going by the name KATHIE BENNETT on 17.2.13 on comment page 8. please Google:- Dispatches Britain on Benefits. You can find it there. This lady said she secured the first ever Welfare Benefit Franchise. Think she has dealings in high places and the house of lords. Very supportive and disturbing comment but was a very fruitful read I have to say.

      Its scary how some sites get taken down by Atos when the truth is leaked. Hope yours will be o k. Kitty. Why should we be silenced and not discuss these serious issues, after all 76 people a week are dying, it can not be swept under the carpet can it.

      Like

      1. I have been censored and banned on FB for posting – well trying to post – info about Atos. I have set up a spare site just in case 😉

        I will check out the comment .

        Like

  17. Hi, I have just found your comments and I have also been for my medical after 21 years on incapacity suffering from SLE and all the complications that go with this illness and yes I was found fit for work even though I had support letters from my GP and Specialist at the hospital. I am waiting for my tribunal date and am very stressed about the whole ordeal. The Atos nurse was not truthful in the way she documented my comments and after reading her notes there was no mention of my illness SLE. I am spending hours reading about the nightmare people are having with the assessments and it is really upsetting.

    Like

    1. I have lupus too, with thrombocytopenia as one of the complications. I too was passed as fit for work after the first assessment, and the Atos report bore little resemblance to the reality of my illness. But I won my appeal.

      I help run a support group for people going through assessments and appeals, and me and a friend wrote this which I am hoping will be useful for you – https://kittysjones.wordpress.com/2013/04/21/1560/

      Like

  18. when I had my medical for ESA the atos gp gave me 12 points, then the DWP reduced them to 6 points – is this a regular thing? The whole world knows atos doctors/staff don’t give out points very easily and dying people have been given none at all, so why then do DWP reduce points awarded?
    I did go to the tribunal and was awarded 18 points and DWP told not to call me back in for 18 months, but everyday of it will be a day of fear.

    Like

  19. Hello there, just became alert to your blog through Google, and found that it is
    truly informative. I’m gonna watch out for brussels. I’ll appreciate if you continue this in future.
    A lot of people will be benefited from your writing. Cheers!

    Like

  20. Hi, Maryjanet here, I have just come back from my tribunal after waiting 11 months and the Judge and doctor where as you said totally impartial. They read my appeal, asked me some questions then after a short break they decided in my favour! I had it all to do on my own but ploughed through, told the truth and I have been placed in the support group!

    Like

  21. Thanks for this. It’s very useful. Can you point me in the direction of where I can find more about Regulation 34(1) on the DWP website please?

    Like

    1. A claimant who does not have limited capability for work-related activity as determined in accordance with regulation 34 (1) is to be treated as having limited capability for work-related activity if-
      A the claimant suffers from some specific disease or bodily function or mental disablement;and
      B by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work-related activity.

      Regulation 34 covers the “Determination of limited capability for work-related activity”, in particular 34(1) would be relevant where a claimant has met one or more of the Support Group descriptors.

      So by referring to it in Regulation 35, it is basically saying the Exceptional Circumstances can be invoked where a claimant has not met any of the SG descriptors.

      Remember with Regulations 29 (WRAG) and 35 (SG), the burden of proof lies with the claimants, in addition, for Reg. 35 you must show that Work Related Activity, not just work, would be a danger to your health.

      http://www.legislation.gov.uk/uksi/2008/794/regulation/34/made

      Like

  22. I know people who are totally blind who have difficulty with simple tasks who are sanctioned ,realistically understanding the governments approach to getting disabled people back in to work has put a lot of families in jeopardy.
    I feel that something more needs to be done to understand these rules concerning claimants not only from the recipient but also the service provider.

    Like

  23. At my wits end
    I was put into the wrag group for esa but i a firmly believe that i should be in the support group ive sent two letters of which the most recent outcome is they are sending out a form for me to fill in as my circumstances have changed. In other words my conditions appear to be getting worse. I have 3 confirmed autoimmune diseases with a forth awaiting diagnosis and now more recently ive been falling over. Yesterday really hurt myself as a result gp this afternoon. If anyone can help please get in touch
    thank you

    Like

  24. It looks like a camel has a better chance of passing thru the eye of a needle than someone successfully passing an ESA claim.
    I don’t see now how invoking these new regs helps, when they are covering all bases with ‘reasonable adjustments’ & prescribed meds controlling the condition.
    Before we could invoke significant risk of harm :-/

    Like

  25. This is very confusing. I can see that regulations 25 and 31 are in the “ESA Regulations 2013”, which apparently is NOT about universal credit. But meanwhile where are regulations 29 and 35. They aren’t in the ESA Regs 2013. So what ARE they in? I’ve spent ages searching and reading and no-one ever says. Without that information you can’t tell people precisely what regulation you are invoking, which makes you look incompetent. Like going to court and saying “this breaches my rights under Article 6 of the something or other but not sure what”. Wd be most grateful if anyone could clarify!

    Like

    1. Have noticed your link above here to ESA2008. Very confusing that esa 2013 and 2008 are both applying with no clarification anywhere in them.

      Like

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