The news that 90 people a month die after being declared fit for work by the government made headlines this summer. But while campaigners and the opposition called for an overhaul of the welfare system, law students at the Bristol and Avon Law Centre are tackling the problem at its source.
Two years ago centre head Andy King established a process by which student volunteers from the nearby University of Law campus and the University of the West of England (UWE) could represent advise benefits claimants and represent them at tribunals.
“This was borne of necessity when we knew that legal aid cuts were coming and we were getting increasing numbers of requests for help from people who were having to claim their disability benefits under a new system,” King says. “Both new and existing claimants had to go through this process and because the rules were tougher many failed.
“This is the group of people who are often quite shy and socially withdrawn and completely unable to deal with cases themselves. They will fail if nobody helps them.”
Already deluged by student requests for hands-on, client experience, King matched the needs of both students and clients. Initially working with just two UWE students, he designed template letters and systems by which the project could run. The first cohort of students trained their replacements and so the project’s self-perpetuating system was born.
Taking only the most gifted students, the project recruits from the end of undergraduates’ first years until graduation and runs on a rotational basis, with waves of volunteers starting three times a year.
A 95% success rate
Across the country, 59 per cent of people who challenge the Department of Work and Pensions (DWP) on its decision regarding whether they are fit to work win their case. In the Bristol centre, this rises to a staggering 95 per cent.
Although the system has been honed and developed over the past two years, the initial success rate stood at 87 per cent – much higher than the national rate.
“Having someone able and willing to put the time in and to collate all the evidence in a structured way is really valuable,” says University of Law volunteer Emma Vincent Miller.
“Clients face the choice of whether to have an oral hearing or to have their decision re-examined on paper and not many are confident enough to represent themselves at a hearing. Unfortunately people who don’t attend in person have much lower chance of success.
“They often don’t understand importance of medical evidence too, whereas when we advise them we contact their GP for a statement.”
A GP statement is just one element of the case file put together by students. If a client approaches the centre after being found fit for work by a medical assessor King will assess the merits of their cases and, providing he believes they have cause to challenge the decision, will refer clients to students.
Each client will then have a meeting with their assigned student volunteer, who will ask them about their life, their medical history and about the government medical assessment.
“We tie those answers to the law,” Vincent Miller explains. “And we look at the relevant statues and case law and then compile witness statements from care workers or family members and ask their GP for a medical report.
“Because that’s outside of doctors’ normal duties clients usually have to pay £50 for it but we advise them to do that as it’s very useful evidence.”
The student caseworkers then write a legal submission and submit it, together with the evidence, to the tribunal, which they accompany their client to.
“Tribunals find the submissions and evidence very helpful,” says King. “The judges are fair and thorough in almost every case. Sadly the same cannot be said of the healthcare professionals who do the medical assessments. In too many cases we feel they are unfair and in almost all cases they are not thorough.”
King has a long list of failures by medical assessor to properly record assessment meetings and believes that the situation is so bad that tribunals now lack faith in the veracity of assessment reports.
“Clients have broken down in tears, collapsed and, in one instance of a client who had anger management problems, been dealt with by security guards during these assessments,” he says. “But the reports did not mention that any of those instances took place.
“The tribunals have much more faith in GP reports. GPs do not lie. They will support their patients if they really believe that their condition will not allow them to work but their integrity and objectivity is such that they do not submit evidence if they do not believe a patient’s condition warrants it.”
Tribunals have in the past found that medical assessors stick to DWP guidelines too rigidly, interpreting them as more binding than is necessary. This is particularly applicable to claimants with mental health conditions. Behaviour which would make working untenable such as panicking uncontrollably or breaking down on public is often overlooked.
So too are the effect of the procedures that clients, with physical and mental disabilities, go through. A recent survey by the MS Society found that half of multiple sclerosis sufferers felt that their condition had relapsed or deteriorated due to DWP processes.
“We see clients being more damaged and bruised after this process than when they went into it,” says King. “Because the work capability assessment focuses on claimants’ disabilities is is particularly difficult for those with mental heath issues to spend months being introspective and saying that your condition is worse than people think.
“I think that assessors are under pressure to follow an interpretation of the law which the tribunal has ruled does not need to be adhered to.
“I don’t believe that they have quotas but I do believe that if an area of the country or one centre had statistics which were out of line with the rest of the country then the manager would be asked why that was.”
Why I got involved
I got involved with the project because I felt like I needed to gain some direct experience of working with clients. I’m considering practising medical negligence and welfare law and knew that the two would work well together. It’s given me essential experience of reading and applying case law and writing submissions. I’m really glad I started.
One of my clients was Polish and so I was able to give her advice in my mother tongue. She had fibromyalgia and was in constant pain, which made her tired and affected her concentration.
Half an hour into our consultation she wasn’t even able to answer my questions in Polish. Her partner had to answer for her. The same thing happened at the hearing, she was very confused and couldn’t answer questions from the doctor. She became upset and started crying.
She was depressed because she wanted to work and knew she couldn’t. She didn’t want to have to go through this process of asking for money. I don’t know how she was classified as fit for work at her interview. It’s very strange.
I am still unsure about what I want to do with my career but I know I want to do more for people. After a positive result their face is so happy. A client told me this morning they couldn’t do it without me – that’s invaluable.
Kinga Burzynska, UWE LLB student
What the DWP says
Almost a million people who applied for sickness benefit [between 2008 and 2013] have instead been found fit for work.
A third (32 per cent) of all new claimants for Employment and Support Allowance (ESA) were assessed as being fit to work and capable of employment between October 2008 and March 2013: totalling 980,400 people.
More than a million others withdrew their claims before reaching a face-to-face assessment – this can be due to individuals recovering and either returning to work, or claiming a benefit more appropriate to their situation.
Reforming the benefits system is a key part of the government’s long-term economic plan to build a stronger economy and secure a better future for Britain. ESA ensures support is provided for those unable to work, while those declared fit are given help to find employment.
Under the old system, 2.6 million people were receiving incapacity benefits when ESA was introduced in 2008. In August 2010, 900,000 had been claiming the sickness benefit for more than a decade.
A decision on whether someone is well enough to work is taken by DWP decision makers based on all of the available evidence. Many claimants will be assessed by an independent health professional as part of the process. All the supporting medical evidence from GPs and specialists is taken into account.
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