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Upper Tribunal confirms sick notes not always necessary for LCWRA back-dating

Getting sick notes can be a real problem with increasing overload on GP services.

During COVID-19 restrictions, matters became even worse with patients advised not to contact their GP unless it was essential.

Kester Disability Rights (KDR) has had a number of cases where disabled claimants were not paid the Limited Capability for Work Related Activity (LCWRA) addition to their Universal Credit (UC) back to when they claimed it, but only from the point back to which they had a flawless sick notes history. Any gaps in sick notes were said by the DWP to make the claim void for that period. This had the effect of meaning that delays in arranging a medical examination by the DWP resulted in truncated back-dating of the LCWRA element.

KDR successfully argued that sick notes are not essential because the law allows other evidence to be used where claimants are unable to provide sick notes. The Upper Tribunal in EE v SSWP: UA-2023-000846-ULCW found the law, “intended to provide a degree of leeway to a claimant who has not provided a fit note”.

It’s best to provide sick notes if you possibly can. You may be able to rely on other evidence if unavoidable gaps arise in your sick-notes history from when you claim up to when you are assessed by the DWP.

Personal Independence Payment (PIP) success rate maintained at over 90%

Since Kester Disability Rights (KDR) started in 2017 we have achieved over 90% success rate for PIP cases. This has become more of an achievement as time has gone on.

For some conditions our success rate is even higher – for example deafness is 100% and autism was 100%, although we have one on possible appeal from the First-tier tribunal. That means our unblemished record for autism is now on the line.

The main difficulty is the lack of objectivity from the DWP, with some staff, and especially agents (Capita, Atos and the like) appearing to work backwards from a pre-determined outcome.

And that has led to some murky waters with the DWP conjuring up “evidence” of claimants “over-stating their needs” by being carers and having jobs, even though both are allowed within the PIP rules.

A new regime of “Search-light” is being deployed with earnings figures scoured from His Majesty’s Revenue and Customs (HMRC) records, even though PIP is not means-tested, and some “earnings” in fact being contractual sick-pay.

With such desperate tactics being deployed to disallow PIP claims no wonder our success-rate is so high.

A better way involves making fair and lawful decisions on each PIP claim following a fair and unbiased assessment. That appears a remote possibility as matters stand. We would then be out of a job, but that is the goal of advice work.

KDR fees percentage increase but still entirely no win no fee

Since Kester Disability Rights (KDR) started in 2017 the fees percentage has always been 25%.  We are having to put it up to 30%.  This is because we do not make enough money at 25% to pay staff anything like a decent wage.  The director works less than the minimum wage because company directors are one of the few exemptions from minimum wage requirements.  Other staff are also paid far less than their levels of skills and commitment deserve.  This is not sustainable. 

The service is still entirely no win no fee.  There are no hidden extras whatsoever.  So in the rare event of us losing a case, the cost is entirely borne by us.  And if we win you still get over two thirds of the winnings, that you probably wouldn't have got without us, which is why you came to us in the first place!

Some cases have very little, or even no, money in them, and even for those the deal is exactly the same. 

Fee charging remains the only way to fund the service as there are no other realistic and sustainable sources of funding available for advice work.  This funding model also guarantees our independence.  As a limited company we also escape the bureaucracy and unhealthy influences that can permeate registered charities.

Please note that the increase only affects new customers.  Anyone who has signed an agreement for 25% of course remains at 25%. 

 

Is DWP failure to sign benefits deaths agreement the result of institutional disability discrimination?

Much of our work comes from institutional disability discrimination. This is where the assumption from organisations is that any disabled person claiming support for their needs is exaggerating for personal gain.

This is a regular approach of the DWP, and some tribunals, to benefit claims, as well as the attitude of many employers to claims for reasonable adjustments in the work-place.

In the process the law becomes secondary to the inclinations of individuals resulting in hundreds of cases that really we should never get.

Many faulty Personal Independence Payment (PIP) assessments result from the assessor deciding the claimant isn’t worthy of the benefit and then working backwards. And occasionally we get tribunals operating similarly, although thankfully this is relatively rare.

Institutional disability discrimination is the reason for the scandal of benefits deaths. An unknown number of fatalities have resulted from claimants being set requirements they could not meet and then their income being removed when they couldn’t do the thing asked of them. For example, Errol Graham died when he could not do what was required of him by the DWP. https://www.bbc.co.uk/news/uk-england-nottinghamshire-51283186.

Requirements such as form filling and attending personal assessments are fortunately all subject to the reasonable adjustments duties laid out in the Equality Act 2010, but this is not consistently implemented by the DWP.

It’s in this context that the DWP’s refusal to sign an agreement to prevent benefits deaths is unsurprising https://www.disabilitynewsservice.com/dwps-failure-to-sign-discrimination-agreement-is-totally-unacceptable/.

With the media’s relentless focus on some aspects of equality perhaps one day this issue will get the attention it deserves.

 

DWP reasonable adjustments - a matter of life and death

During the COVID-19 situation, the Department for Work and Pensions (DWP) softened its approach to claimants with awards extensions and paper-based reviews becoming common.

This followed a relatively more progressive direction being taken even before then with increased instances of standard processes being adjusted where people couldn’t cope with them. For example, we have had over 20 cases where medical evidence showed the claimant could not deal with personal assessment and so a paper-based review was carried out instead.

This can be a matter of life and death as in some extreme cases claimants have died where they have been unable to cope with the DWP’s benefits reassessment processes. For example: https://www.nottinghampost.com/news/nottingham-news/vigil-held-errol-graham-who-3816299 .

It is therefore concerning that the DWP has been reported as not yet signing an agreement to prevent further benefits deaths. 

 https://www.disabilitynewsservice.com/concern-after-dwp-admits-it-has-not-signed-benefit-deaths-legal-agreement/ .

 KDR supports disabled social security claimants to get through the assessment processes and tribunal system ensuring reasonable adjustments are made. 

 

Scottish Tribunals staggering lack of awareness of mental health

Sometimes we despair at the state of our legal system when the administration appears chaotic and judges appear to have arrived in a time machine. 

A recent Scottish Employment Tribunal case was one of the worse ever seen.  Despite medical evidence showing it was not safe for the Claimant to be questioned about his condition by a barrister due to serious long term mental illness that had previously resulted in multiple suicide attempts, his case was struck out precisely because he couldn't attend a hearing to take the witness stand.  The matter was made even more disturbing by the origin of the Claimant's mental health difficulties being him having been abused as a child.

And in the author's 25 year history of advice work, he was dumbfounded when a transcript of the hearing striking out the Claimant's case was denied with the President himself intervening to state in no uncertain terms we couldn't have one.  An appeal proved fruitless as the ranks closed.  

On the upside, the matter was pursued to the Ministry of Justice with the kind help of the Claimant's MP.  The Parliamentary Under Secretary of State for Justice replied to him stating,

"HMCTS always try to identify any party who is vulnerable at the earliest stage of proceedings. This is to ensure all users can access the justice system without being disadvantaged. This can be done on tribunal forms ET1 or ET3, or by another means of communication to the tribunal. HMCTS does everything possible to support users to participate fully in their case and will offer reasonable adjustments where possible. Any adjustments made to how proceedings are conducted will be a decision made by the judiciary".

And,

"I am aware that Litigants in Person may find the tribunal process more challenging and it is important that our judges are appropriately trained to handle these types of cases. This includes cases where a party is both a Litigant in Person and has mental or physical disabilities. Training for judges on handling Litigants in Person is provided in all jurisdictions, and in cross-jurisdictional training, including the Faculty Induction Seminar that new judges are expected to attend within their first year of office".

So hopefully new judges will be better trained than the old ones!

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Kester Disability Rights Ltd., The Archway Centre, 6 New Road, Ludlow SY8 2NX. Registered in England number 11917856.