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Law students had to help a man in debilitating pain fight being declared "fit to work"

Disabled claimants are increasingly vulnerable, with justice more difficult to access, and the need to be reassessed after being declared "fit to work", 

The first Paul Crane knew of having his benefits cut off was when his landlord called up to ask where the rent was.

It was the start of a harrowing time. After ten years of receiving support for debilitating pains – caused when gamma knife radiosurgery to repair a haemorrhage on his brain stem caused radiation damage to surrounding tissue – he had suddenly been declared "fit to work".

Paul’s life has never been the same since the operation, which repaired the haemorrhage but left parts of his brain and spinal cord permanently damaged. Every day he is haunted by stimuli – light, noise, crowded places – anything that sets off his "excitable nerves" will leave him in agony with migraines, cause numbness and dizziness, or leave part of his face sagging. Even sneezing or tiredness can cause a traumatic flare up.

He says: “Tiredness causes pain and pain causes tiredness. I don’t socialise much, I’ve let people down too many times. I go fishing, which is my only relaxation but even that sometimes is too much”.

Over a decade of suffering and being prescribed a cornucopia of drugs – none of which have fully worked – Paul has learnt to live with the pain. But a new regime at the Department for Work and Pensions, which he says was “like the difference between black and white”, has been hard on him. This was when the Employment and Support Allowance (ESA) replaced the Incapacity Benefit, and new work capability assessments (WCA) were brought in to test whether or not claimants were "fit to work".

“It was as if they were trying to fail me,” he says, “like the system was designed to make me fail. I realised how lucky I had been before. The ESA people looked at me as if to say, ‘Oh God another scumbag’”.

When the news that he had been refused ESA hit him, Paul says he found himself in “a very dark pit”, confused and afraid of what would happen next.

“How could they come to this conclusion? I answered as truthfully as I could and they failed me. I’d just spent two weeks either in bed or on the sofa.”

It’s a painfully common story. Disability rights campaign groups such as the WOWPetition and Disabled People Against Cuts (DPAC) have been pressing the DWP to take notice of the plight of people like Paul, and are fighting for a comprehensive impact assessment of how changes to the benefits system and wider government spending cuts affect people with disabilities.

In August, after months of pressure, the DWP released the official figures for mortalities following "fit to work" verdicts between December 2011 and February 2014, revealing that 2,380 died in that period.

And even more damning, the Avon & Bristol Law Centre (ABLC) revealed that, of a hundred WCA appeal cases taken on by volunteer law students, 95 had been successful.

Andy King, welfare benefits caseworker at the ABLC, says that the cases shocked him and the students as more details emerged: “We found people for whom working would have been a serious risk to their health. We found people being assessed who had some of the most serious conditions; just the process is extremely stressful and focuses on their inadequacies, which is destructive to their confidence and self-respect.

“We did very detailed case preparation because these are complex cases; if these people didn’t have the law students working for them, lots of them wouldn’t be able to do it”.

Labour’s shadow justice minister Andy Slaughter says that to have more appeals decisions overturned than upheld is unusual, but a 95 per cent success rate is “in a different league”.

He says: “In any other area of law, if you were getting 19 out of 20 of your decisions overturned, you would want to go back and look at your whole decision-making process again. I think the DWP needs to seriously look at this.”

A DWP spokesman says: 

“Eligibility for Employment and Support Allowance is based on an assessment of an individual’s disability or health condition and their ability to work – taking into account all of the evidence provided. 

“Everyone has the right to appeal a fit for work decision and people often present fresh evidence that wasn’t available at the start of the claim. In fact, only 14 per cent of all fit for work decisions are overturned.”

The 14 per cent figure quoted is of all work capability assessments decisions, but the figure for decisions which are taken to appeal is much higher – 58 per cent in the most recent available quarterly figure.

Recently, a coroner’s report cited a WCA decision as the trigger for a man’s suicide. It was the first time an official report had made that link, and a major breakthrough for campaigners.

 

It was a telling revelation, not least because it highlighted the fact that vulnerable people and sufferers of mental health problems are being exposed to the system. King says that, of the cases ABLC took on, more than a third of claimants had already been diagnosed with some form of mental illness before their initial assessment.

He says: “Generally, [appeals] tribunals are more thorough than capability assessments, and that often reveals details such as mental health problems that were not picked up in the assessment. A very large proportion of the claimants had mental health problems and a good number of them had suffered serious sexual and emotional abuse as children; these are people who have already been confirmed by their doctor as being the most vulnerable people in society”

Not only are there serious concerns that people with disabilities and mental health problems are being unfairly treated in parity with other jobseekers, but Slaughter says that the assessments heap huge masses of extra pressure on those sufferers.

“Going through the process is one of the most stressful things you can do,” he says, “and often the people are already in a stressful position. It must be hugely stressful with the process as complex as it is; of course they are going to struggle.

It’s a precarious time for people with disabilities and mental illness, especially with funding for mental health being cut in real terms by more than 8 per cent, the lack of legal aid support for people wrongly declared "fit to work", and a programme of wider social care austerity that WOWPetition campaigner Michelle Maher – who is herself disabled – says adds up to a total of 19 different cuts for the most severely disabled people.

She says: “When you see that brown envelope from the DWP you have a heart attack; even for someone like me who doesn’t have mental health problems your heart stops. It takes hours to open because you’re so frightened of what’s going to happen to you”.

An overhaul of the benefit assessment programme by Iain Duncan Smith, revealed in early September, is being treated with scepticism by campaigners, not least because only a couple of weeks before he had set out his ambition of getting another 1million disability benefits claimants back into work.

And King says that even if the system is changed, there is a strong case for law centres around the country to step in, and for going back over previous assessment verdicts and applying the same rigour retrospectively: “We are only representing 10-20 per cent of people in the Bristol area alone; there’s a huge number of people who don’t get guidance, and legal aid cuts have made it harder for people to get representation”.

For Paul, the trauma of being cut off is over, though his daily battle continues. He was awarded £700 in missed benefits payments – for the six weeks he was without support. But he’s very aware it was for the grace of the ABLC students stepping in when he was at his low point.

“They gave me the strength to carry on,” he says. “The stress was that bad – without the law centre I honestly think I might have ended up homeless or committing suicide”.

Benedict Cooper is a freelance journalist who covers medical politics and the NHS. He tweets @Ben_JS_Cooper.

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