Thousands of disabled people could have had their benefit claims stopped unlawfully, campaigners believe, after a judge found that letters sent out by government contractors were failing to stress the serious consequences of failing to attend a face-to-face assessment.
Upper tribunal judge Nicholas Wikeley said he believed that letters sent out to claimants of personal independence payment (PIP) by the government contractor Atos* did not make a “clear and unambiguous” statement that the disabled person must attend the assessment.
Instead, the letters said that “it is important that you attend this appointment” and that failing to do so without a good reason was “likely” to lead to the claim being disallowed.
In its evidence to the upper tribunal appeal, the Department for Work and Pensions (DWP) argued that it was necessary to strike a balance between clear communication and “the likely consequences of failure to attend” without “frightening claimants into being so fearful of punitive action that they will attempt to attend an appointment” even if it is “difficult or impossible” to do so because of their impairment.
The judge made it clear that his comments about the letter were not part of the legal basis for his decision on the tribunal appeal – published last week – and that he did not even know if Atos still used this wording in its letters, or if it was used by the government’s other PIP contractor, Capita.
But his comments were picked up by the disabled people’s organisation BuDS (Buckinghamshire Disability Service)**, which said they suggested that DWP may have been acting illegally by stopping thousands of PIP claims of disabled people who had failed to attend their assessments.
The concerns about the wording of the Atos letters may also apply to those sent out by Capita, DWP’s other PIP assessment contractor.
But it is not clear yet whether they apply to appointment letters sent out by “fitness for work” contractor Maximus, and claims for employment and support allowance (ESA) that were stopped for failure to attend face-to-face work capability assessments.
The tribunal appeal had been brought by a disabled person with a form of epilepsy that cannot be controlled by medication, and who had previously been claiming disability living allowance (DLA).
But after he attempted to move onto the new PIP benefit in 2017, DWP stopped his claim because he had failed to attend a face-to-face assessment with an Atos healthcare professional.
This decision was confirmed by the first-tier tribunal when he appealed against that decision, but the upper tribunal has now ruled – after an admission from DWP – that he did have good reason for missing the assessment and should have been entitled to the enhanced rate of both the daily living and mobility PIP components.
The judge said that a letter from his consultant stated that his seizures arose “unpredictably and without warning, leaving him ‘confused, disoriented and drowsy and… therefore in a position of significant vulnerability’”.
The upper tribunal judge ruled that there was now “ample evidence of the severity and significantly disabling and daily effects of the claimant’s various medical conditions”.
He also ruled that the first-tier tribunal had made a mistake in law by not having a copy of the appointment letter from Atos to hand when it made its decision.
The appeal ruling applies to a period of nearly a year when the claimant did not receive PIP, before a new claim was successful in early 2018, also at the enhanced rates for both mobility and daily living.
BuDS said that claimants who had received a letter with the same wording and had had their claim stopped for failing to attend an assessment should now ask DWP to reconsider that decision.
It said that DWP should now allow such people a new assessment, although they would not be automatically entitled to PIP.
But they could be owed back-payments if they lost money because their claim was illegally stopped.
Linda Burnip, co-founder of Disabled People Against Cuts, said: “How many years do they need to improve their assessment processes?
“They all seem to be totally failing, at great cost to tax-payers.”
The Department for Work and Pensions (DWP) refused this week to answer questions about the case, including whether the letter was still being sent out by Atos in the form criticised by the judge; how many claimants might be affected; and whether a similarly-worded letter was also being sent out by Capita and Maximus.
But DWP said in a statement: “We will consider these findings as we continue to improve our assessment processes.”
The department also suggested that the judge’s ruling was non-binding and required no changes to its procedures.
An Atos spokesperson said: “We are considering the contents of the judgement.”
Capita had not commented by noon today (Thursday).
Maximus failed to respond to requests to comment.
*Atos delivers its PIP assessment contracts through Independent Assessment Services, a trading name of Atos IT Services UK
**To make a donation to BuDS to fund the work of its BuDS Benefit Information Project, please click on this link
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