A long ordeal: the struggle for a fair hearing

Our clients' experiences reveal the arduous series of hurdles people with severe disabilities and health conditions face before they can get the support they need

Jen Durrant, Policy and Campaigns Officer

It’s an uncomfortable feeling, sitting next to someone whose entire life is about to be shaped by a pair of strangers. The air in the waiting room is stuffy, suffocating, heavy with the weight of impending judgement. Adina catches my eye and gives me a watery smile, as if it’s me who deserves encouragement; when in fact, she is the one who could be about to have the vital support she needs to live on – her Employment and Support Allowance (ESA) – denied to her for the third and final time. Her bravery is humbling.

Adina suffers from severe sciatica and chronic back pain, as well as several pelvic, menstrual and gastrointestinal disorders, all of which frequently render her unable to move. On a good day, she can just about walk for five minutes before rising pain in her back forces her to stop. On a bad day, she cannot even sit up.

This has had a damaging effect on her mental health: often unable to leave the house for half a week or more, her pain and isolation have led to severe depression and anxiety. Simply getting through the day can be a struggle.

And yet, DWP say she is completely fit for work. The initial assessor scored her 0 points; when Adina asked for this to be reviewed at Mandatory Reconsideration, DWP upheld the decision. Apparently, excruciating pain and complete immobility more than half the time do not affect a person’s capacity to sustain a paid job in any way at all.

Adina’s experience is far from unusual. The problems with the initial assessments for ESA – and the other major disability benefit, PIP (Personal Independent Payment) – are well-documented. Just last week the Work and Pensions Select Committee released a sample of the over 3,500 submissions they received from individuals who had experienced shocking levels of inconsideration, ineptitude and inaccuracy by the assessors.

This criticism of the flawed assessment system is both justified and essential, and Z2K has been a vocal campaigner on this issue for several years. There has however been less attention on what comes afterwards: the long, drawn-out process of going through Mandatory Reconsideration, and the waiting, uncertainty and eventual anxiety of the tribunal hearing itself. Not to mention the damage to people’s finances, relationships and health that such an extended ordeal can cause.

Adina has finally reached the end of this process: eight long months after the DWP’s verdict, she is about to find out whether the appeal tribunal will take a more reasonable view.

For three quarters of an hour, she faces questions from the tribunal doctor and judge. Being forced to re-live the deterioration of her health and daily isolation is clearly hard for her, and she is almost brought to tears. But she is determined to get her point across because, as she tells the judge, it’s not that she doesn’t want to work; it’s that she can’t.

“I was working before, I want to work again. I don’t want this pain, I don’t want my life to be like this. I want to get better.”

The panel members watch her distress and nod. They are matter-of-fact and to the point, but not unkind – and they seem genuinely concerned to reach a fair outcome.

But then, having already given a lengthy explanation of her conditions, Adina must also face questions from the DWP presenting officer. As ESA and PIP refusals are increasingly overturned at tribunal, with claimants winning two thirds of appeals in 2017, DWP is now sending presenting officers to try and defend their decisions – at a cost of £22 million to the taxpayer.

In just two years, DWP has spent over £108 million on the challenges to its ESA and PIP decisions. This stubborn defence of an evidently inaccurate assessment system seems a bizarre and worryingly misguided use of taxpayers’ money – especially when the government is simultaneously cutting legal aid, and therefore claimants’ own ability to appeal, by £450 million a year.

Not only that, it exacerbates the stress of what is already an exhausting ordeal for claimants. Adina does her best to answer the presenting officer’s questions – most of which seem irrelevant at best (‘You say you can’t walk, but you used to do yoga.’ ‘Yes. That was before I was ill’) – but the interrogation clearly frightens her. Understandably: it’s yet another example of DWP treating those with debilitating conditions not as people who require support, but as deceitful, work-shy criminals. And it’s using huge amounts of government money to make them feel that way.

Fortunately for Adina, the panel rules in her favour and she is granted the support she needs for essential living costs. But too many people never make it to tribunal. The hurdle of Mandatory Reconsideration is hugely off-putting, and often claimants get the false impression that it is the final decision and they have no further chance to appeal.

Even for those who know they can challenge it, the obstacles are overwhelming: with savage cuts to legal aid, the scale of demand for advice far outstripping capacity in the charity sector and thousands being too ill to bear the ordeal of the appeals process alone, far too many people never even have a chance.

As a result, they are missing out on what is rightfully theirs – for no other reason than because the government is making it so hard for them to get it.

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