Case Study Three: Elsa Lomax
|Is it discrimination?
What’s happened – what’s gone wrong?
|Which benefit or process is this example about?||Illustration of the Department of Work and Pensions (DWP) not complying with Equality Act duty to make reasonable adjustments for disabled people
DWP/ Maximus refused to arrange a home based/domiciliary assessment for Employment and Support Allowance (ESA) client.
|About Elsa and her situation||Elsa has agoraphobia and anxiety. She wanted a home assessment visit for her work capability assessment (WCA). Her request had been refused because she had not provided evidence from her GP, (although she had already provided other evidence). She couldn’t afford to pay for this document from her GP.|
|What are the flags/alarm bells/lightbulbs that can help you recognise discrimination?||Flags
Home assessment.The DWP adding in extra hurdles that disadvantage this client: ‘significant disability’ and ‘extremely difficult’.
|What does Elsa want to happen?||A home assessment visit to be arranged.
An apology and compensation for the distress.
Better treatment in future.
|How can equality rights help to solve problems in welfare benefits?
Why did it go wrong?
|The welfare benefits perspective||The Centre for Health and Disability Assessments (CHDA) referred to the DWP guidance with ‘suggested’ criteria for home-based assessment: “diagnosis suggesting significant disability that may make travel extremely difficult”.
The CHDA’s suggestion that going to the GP is equivalent to attending a WCA is not a reasonable one – it’s not the same.
|The discrimination and Equality Act perspective:
• Reason for the unfairness (the protected characteristic)
• the type of discrimination (the prohibited conduct)
|Reason for the unfairness?
Elsa meets the definition of disability in the Equality Act 2010.The type of discrimination?
A failure to make reasonable adjustments (section 20 Equality Act 2010).The Equality Act duty to make reasonable adjustments for disabled people:
The DWP guidance tries to apply the same criterion to everyone regardless of their reasonable adjustment duty (a blanket policy). This criterion is the ‘practice criterion or provision’ (PCP) that caused the disadvantage to Elsa.
The DWP guidance suggests that medical fact-based evidence is needed to support a request for a reasonable adjustment. That is not a requirement set out in the Equality Act, but a further barrier created by DWP.
What has gone wrong?
|Top tip||Look for information about the DWP’s and CHDA’s own policies (for example through a Freedom of Information (FOI) request). Refer to these documents to show where the DWP does not comply with its own policy, or where their policy does not comply with Equality Act.
Use the Equality and Human Rights Commission (EHRC) Code of Practice to help explain what you think the DWP should do to comply with the Equality Act.
|Taking action about discrimination and finding more help
What can you do?
|How could you use the Equality Act and other rights to put this right?||Use a failure to make reasonable adjustments (section 20 Equality Act 2010) to argue for a home assessment visit.|
|Outcome||Evidence from Elsa, from people close to her and from her case worker.
Reference to the DWP’s policies and EHRC Code of Practice.
|What evidence would be useful here?||Evidence from Alice herself about the impact the decision has had on her.
Evidence from Alice’s GP.
|Time limits||A claim in the County Court for discrimination has a time limit of six months less one day.|
|Resources and information that would help in similar cases||Equality and Human Rights Commission (EHRC) resources for advisers.
EHRC Code of Practice on Services, public functions and associations.
See FOI response to DWP guidance on home visits.
|Additional support||EHRC Adviser Support Line|
|Policy or campaigning issues||Change in DWP policy on home assessment visits.
Change in DWP / CHDA recognition of Equality Act duties.
Letter to the CHDA (after initial refusal to request for a home visit)
Re: Elsa Lomax
We are instructed by the above-named client in relation to her claim for Employment and Support Allowance and the requirement that she attend a consultation/medical assessment by CHDA in Melchester, to undertake a work capability assessment on 13 November 2017.
We understand that Ms Lomax is unable to attend the assessment centre for medical reasons, namely agoraphobia and anxiety and that she has, through her caseworker, sent in supporting evidence which supports her assertion that she requires a domiciliary assessment, namely:
- Her PIP award letter, dated 1 September, which scored her 10 points for ‘planning and following a journey’, due to the overwhelming mental distress that she suffers when required to leave her house and undertake a journey. Page 5 of this letter confirms that “it is considered you cannot undertake any journey because it would cause you significant mental distress for the majority of the time”. Her PIP assessment was indeed carried out as a home-based assessment
- EMIS NHS medical report, dated 15 August, which details her agoraphobia.
- Letters from people close to her, describing her mental health problems and how they impact her life, in particular her ability to leave her house
- A letter from her caseworker detailing all of the reasons why Ms Lomax would be unable to attend an assessment outside of her home.
In relation to the provision of home-based assessments, we note from Maximus’ website that:
“Assessments are usually completed at an Assessment Centre. We understand that some medical conditions can make travelling difficult. Our Healthcare Professionals will identify those people who cannot travel because of their medical condition. We then offer a home visit.
If you think you cannot travel because of your medical condition, please contact us as soon as possible. Our Healthcare Professionals will then consider all available information. It is likely we will ask you for supporting information, including confirmation from a medical professional who is treating you.”
We understand that CHDA Maximus has refused to provide a domiciliary assessment for our client due to the fact that she has not provided a GP letter in support of her request for a domiciliary assessment, despite being informed that the GP charges a fee for such a service, which our client is unable to afford. We also understand that CHDA Maximus has refused to provide written reasons for their refusal.
The information contained on Maximus’ website confirms that although confirmation from a medical professional who is treating the individual is “likely” to be requested, it does not indicate that this requirement is absolute. It would appear to us that the circumstances of Ms Lomax are such that the requirement for a letter from a treating medical professional should be waived, given the duty to make reasonable adjustments found in the Equality Act 2010.
This situation has caused our client significant distress at a time when she is already struggling to cope with daily panic attacks. These leave her unable to function, she loses her hearing, her sight and is unable to concentrate for long periods.
As such, we seek the following information from you:
- whether either the DWP and/or CHDA Maximus have prepared or issued a policy and/or guidance in relation to the evidence that is required by the CHDA for domiciliary assessments, in circumstances where an individual requires a home-based assessment, but is unable to obtain a GP letter due to the fee that is attached to that service. If such a policy is in existence, please provide us with a copy; and
- if no policy exists, on what basis CHDA is refusing to provide a domiciliary assessment to our client.
On the basis of your responses to the above, we will be advising our client as to her legal options, including whether she has a claim for a failure to provide reasonable adjustments under the Equality Act 2010 and/or whether she is able to bring a judicial review against the decision to refuse her request for a domiciliary assessment.
Alternatively, we consider that our client has provided enough information to evidence that a home assessment is required and if you confirm that a home- assessment will be arranged, we will take no further action.
As you are aware, our client currently has an appointment at an assessment centre scheduled for 13 November, despite explaining that she would be unable to attend. Please therefore respond to this letter without delay and in any event, within 2 working days, namely by 7 November.
Response from CHDA
To enable us to address your enquiry, we will need to access Ms Lomax’s referral details and as such we require her signed authorisation to do so and provide you with the information you have requested.
If you hold a signed authorisation mandate please email this to us.
If not, please ask Ms Lomax to complete and sign the final section of the attached booklet and return this to us.
For your information, CHDA do consider home visit requests; however, these do need to be supported by a letter from the customer’s treating physician, explaining why the customer’s medical conditions prevent them from leaving their home.
If a customer attends other appointments then it would be expected that they would be able to attend an appointment at an Assessment Centre.
Customer Service Team
Centre for Health and Disability Assessments
Response to CHDA’s reply
Thank you for your email of 6 November. We attach our client’s authorisation form to this email.
We are concerned that our client’s appointment at the CHDA is scheduled for this Monday 13 November, and would therefore, if possible, like to resolve this issue prior to her appointment.
We note that you state in your email of 6 November, that: “If a customer attends other appointments then it would be expected that they would be able to attend an appointment at an Assessment Centre.” We have taken our client’s instructions as to whether she attends appointments at her GP. She has confirmed that she can do so, this is because her GP is approximately a 10-15 minute walk from her house, and that she would always be accompanied by a friend on the occasions that she visits the surgery. Her GP surgery are aware of her mental health conditions and therefore ensure that her wait, prior to her appointment, is minimised. When she attends the GP, she is unlikely to be out of the house for longer than 45 – 60 minutes. This is in stark contrast to the journey to the CHDA in Melchester, which takes approximately 35 – 45 minutes on a bus each way. This would mean that she is likely to be away from her home for at least 2-3 hours. She would not be able to cope with this length of journey and is likely to suffer serious anxiety and very likely, a panic attack.
We do not consider that the fact that Ms Lomax can visit her GP can be compared to an appointment to the CHDA. The length of time that she is away from her home, as well as the distance she is required to travel from her home, goes to the very core of her mental health condition, agoraphobia. Your policy does not take this into account, but instead applies the same standard to every individual, notwithstanding the diverse and varying limitations that different mental health conditions can cause. In this regard, we do not consider that your policy complies with the Equality Act 2010.
As above, given the timescales involved, we would be grateful if you could consider the above information and confirm to us the outcome of your decision as a matter of urgency, and before Monday 13 November.
Response from CHDA
The process we follow when a customer requests a home assessment is that we ask for further medical evidence, usually a letter from the GP or treating Healthcare Professional, giving the medical reason the customer is unable to attend an Assessment Centre.
We ask for this additional evidence as the information in the file has already been considered to establish whether a face to face assessment is required when the referral from the Department for Work and Pensions (DWP) was made and the ESA50 questionnaire was received.
In respect of a Work Capability Assessment for a claim to ESA we follow the guidance stipulated by the DWP. Our Healthcare Professional will consider this guidance on receipt of supporting medical evidence to confirm whether a home assessment is appropriate. The guidance is quite extensive although includes:
“Assessment at an Assessment Centre is the most desirable option, as the conditions there are most suitable in terms of Health and Safety and providing a suitable environment to conduct a comprehensive interview. However, it is recognised that, at times, the assessment needs to be conducted in the customer’s home.
Information that may help support a home assessment request may be:
- Diagnosis suggesting significant disability that may make travel extremely difficult
- Evidence that the customer receives home visits or telephone consultations with their GP
- Evidence that the customer has home visits from the psychiatrist/Community Mental Health Team (CMHT).”
As above, the system shows that information contained in your fax to Melchester Business Support Centre, managing Ms Lomax’s referral, has been reviewed alongside the other information and a home assessment approved. Ms Lomax will be contacted in due course regarding the arrangements for this.
On behalf of Centre for Health and Disability Assessments I am very sorry for any upset caused on this occasion, I assure you this was not our intention. I sincerely hope that once Ms Lomax’s assessment takes place, it will not cause any further concerns.
Please do not hesitate to contact me if I can be of any further assistance.
Customer Relations Manager
Centre for Health and Disability Assessments