Florence and Employment Support Allowance Sanctions

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Case Study Six: Florence Dixon

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Is it discrimination?
What’s happened – what’s gone wrong?
Which benefit or process is this example about? Employment Support Allowance sanctions imposed by DWP for failure to take part in work related activity.
About Florence and her situation Florence was receiving Employment and Support Allowance (ESA) with the work-related activity component.

She has a diagnosis of agoraphobia and social anxiety with associated psychosis and until recently was under the care of the Early Intervention Team. Her conditions are long term and enduring.

She finds it difficult to go out anywhere alone without support from her partner due to her symptoms of depression and psychosis. She experiences thoughts and beliefs that she is being watched and that other people know her thoughts and every day moments. These feelings overwhelm her and can lead to intense anxiety and emotional states, and she can’t cope with groups of people. She generally manages these feelings well, with support from her partner and various coping techniques she developed while with mental health services. At times of stress or pressure these feelings intensify and coping with daily life becomes incredibly difficult for Florence. She becomes withdrawn, struggles to concentrate and her thinking becomes erratic and disorganised. Her symptoms of psychosis increase.

Following a work capability assessment (WCA), on 1 March 2016 the DWP decided Florence is entitled to ESA and awarded points for:

• getting about. Being unable to get to a specified place with which the claimant is familiar, without being accompanied by another person (Activity 15 (b) 9 points)
• coping with social engagement due to cognitive impairment or mental disorder. Engagement in social contact with someone unfamiliar is not possible for the majority of the time due to difficulty relating to others or significant distress experienced by the claimant (Activity 16 (c) 6 points).

Florence was referred to BlueSky Work Programme in Barchester in April 2016. On her first and all subsequent appointments, she attended with help from her partner. She explained the extent of her illnesses and the limitations these impose on her, in particular the difficulties she has attending appointments without support and being around groups of people. She also explained she does not cope well with stress or pressure, and how this can exacerbate her psychosis.

Despite this however she was mandated to participate in various inappropriate courses, for example:

•  a skills course: The tutor for this course decided that it was inappropriate for Florence to attend with a support worker and arranged her withdrawal from the course
•  a four-week computer course: Florence had to leave half way through the first day because she wasn’t coping in the group situation.

Throughout her time at BlueSky, Florence was required to attend frequent face to face appointments which she found increasingly upsetting. They were held in an open plan office with very limited privacy, leaving her feeling extremely vulnerable. She felt she was being watched and that other people had detailed knowledge of her life, leading to extreme feelings of anxiety.

Florence asked to use one of the computers at quiet times and if she could attend less frequently. Florence was told she would “need to fulfil a predetermined programme” and that if she was not happy she should appeal her ESA decision.

Florence became distressed and her condition deteriorated. She experienced increasingly intrusive thoughts and her psychotic symptoms became more frequent. She believed ‘continuing with BlueSky would be detrimental to her mental health, and also affect other physical health issues that she had been coping with.

Florence told her adviser that at BlueSky she frequently became very emotional. She felt sure that everyone, including members of staff, were staring at her intently. She told her adviser that after these appointments she would go home and “just fall apart”.

What are the flags/alarm bells/lightbulbs that can help you recognise discrimination? Flags
Florence has complex needs.
She has been sanctioned because she couldn’t fulfill work. related activity requirements.
She has had multiple sanctions.
What does Florence want to happen? Sanctions decisions to be revised.

An apology.

Better treatment in future: more appropriate work-related activity.


How can equality rights help to solve problems in welfare benefits?
Why did it go wrong?
The welfare benefits perspective The DWP, and BlueSky, failed to take account of Florence’s mental health conditions. They did not consider the impact upon her of mandating her to attend appointments and take part in Work Related Activity.

The DWP did not identify that Florence was ‘a vulnerable customer’.

The discrimination and Equality Act perspective:
• Reason for the unfairness (the protected characteristic)
• the type of discrimination (the prohibited conduct)
Reason for the unfairness?
Florence has a diagnosis of agoraphobia and social anxiety with associated psychosis. She meets the Equality Act definition of disability.The type of discrimination?
A failure to make reasonable adjustments (section 20 Equality Act 2010):•  the policy of requiring Florence to carry out work related activity in an open plan group setting put her at a substantial disadvantage
•  the policy of imposing a sanction for failure to carry out work related activity put Florence at a substantial disadvantage.Or: discrimination in breach of section 15 and section 29: unfavourable treatment (the imposition of a sanction) because of something arising (the failure to carry out work related activity) in consequence of a disability.What has gone wrong?
The DWP failed to identify Florence as a vulnerable customer. Although the DWP and BlueSky knew about her mental health conditions, they did not make reasonable adjustments for her. No easements were applied. The sanctions left her destitute, and also meant that her health deteriorated and she was less able to obtain work
 Top tip The adviser used a combination of welfare rights and discrimination rights to secure practical and material changes in the client’s situation.  A constructive holistic approach worked well, as Florence was supported to re-engage, and positive suggestions about reasonable adjustments were taken up and acted upon.


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 secure changes to the work related activity that Florence was required to do.

Or argue discrimination in breach of section 15 and section 29: unfavourable treatment because of something arising in consequence of a disability (to ensure that sanctions not imposed, and her ESA is restored immediately).

An adviser should investigate the facts and ask questions to find out what went wrong and to identify the kind of discrimination. If unsure, seek specialist advice.

Outcome The adviser’s support helped Florence to re-engage. She attended an appointment with her Jobcentre Plus work coach who made a new referral to a different provider.

Florence was immediately offered reasonable adjustments, including monthly support by telephone and referral to wellbeing services on a one to one basis.

The adviser also wrote a complaint letter (and request for mandatory reconsideration) to the DWP Complaints Resolution Team. The letter requested:
• all the sanctions decisions were revised
• assurances that a personalised and realistically tailored work-related activity will continue to be made for Florence
• an apology
• compensation to Florence sufficient to reflect the distress caused
• details of what is being done to ensure that this does not happen again
• confirmation that BlueSky would be reminded of their duties under the Equality Act to make reasonable adjustments at all stages of a claimant journey.

What evidence would be useful here? Evidence from Florence and her partner about her condition, and the impact upon her of the work-related activity requirements.
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.
Additional support EHRC Adviser Support Line
Policy or campaigning issues Failure of the DWP providers to comply with Equality Act duties.
Failure of the DWP to set up appropriate markers for vulnerable clients.

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