Today the DWP has released details of the complaints it has received, from “external stakeholders”, on the misleading ESA65B ‘Fit Note’ ESA appeals letter. It also confirms that the BMA and RCGP have been sent a draft, on 9/4/19, of a new revised ESA65B letter “for comment”, with the “BMA to inform GPs of the need to provide fit notes if patient appeals etc. pending release of the new ESA65B” and the “BMA to communicate change to ESA65B and ESA50 to GPs”.
“BMA to inform GPs of the need to provide fit notes if patient appeals etc. pending release of the new ESA65B”
FOI reply – ‘ESA65B letter‘ – 07/5/19
[ STOP the ESA65B being sent to your GP ]
There is no indication what changes are going to be made the ESA50 ‘Capability for work questionnaire‘, but a complaint has been lodged with the Information Commissioner (ICO) that the ESA50 and the ESA claim form do not comply with the Data Protection Act 2018/GDPR requirement (see footnote) to ensure a claimant can positively consent (opt-in), or not consent, or withdraw consent later on to their GP/Dr being sent a letter (ESA65B) that informs them:
“about the Secretary of State’s
determination on– limited capability for work
– limited capability for work-related activity,
(IE: The decision of a Work Capability Assessment that a claimant is ‘fit for work’)
Source: ESA50 or UC50 questionnaire and the ESA claim form
The Work and Pensions Committee has formally requested to be kept informed of the ICO complaint investigation.
Edit: Action note 77, dated 27/3/19, of the disclosures indicates the ESA50 changes concern the “(cancer page)”.
Today’s disclosures also shows that the BMA and RCGP provided “feedback” on the misleading ESA65B as far back as March 2nd, 2016. But it is unclear if this and any subsequent feedback amended the DWP proposed ESA65B changes or what if any opposition to the changes the BMA and RCGP made, save for recently published opinions implying the DWP was lying about them either approving the revised ESA65B letter.
“The Cabinet Secretary first issued the requirement to revise the ESA65B letter in November 2014″
Employment and Support Allowance: Written question – 142517
Answered on: 16 May 2018
Extract from ESA65B complaints, starting March 2018, recorded by the DWP
“We have a copy of a letter, and it’s very strongly suggests GPs should not issue any more fit notes…We have concerns about telling GPs to stop handing out fit notes”
“There is a new version of letters being sent to GPs suggesting incorrectly that they do not need to give people fit notes when they are found fit for work. The effect is claimants (and the organisations supporting them) are having problems getting fit notes to support appeal rate ESA payments. This is creating yet another barrier to people getting the Employment and Support Allowance (ESA) they need if they want to dispute the decision…
This wording change to theESA65B is really unhelpful and is making it difficult for claimants that need a fit note to get ESA pending appeal. If a claimant’s GP does not provide them with a fit note during the appeal period they will need to claim UC where eligible which means they may then receive a much lower level of support even if the refusal of ESA is successful”
“We’ve started getting a number of reports from XX whose GPs have told them that DWP have “told them they are not allowed to issue fit notes to them”, even if they are appealing an ESA decision or their condition has worsened, which is not correct”
“Where the matter has arisen, some XX have written to the GPs to highlight this to them, and we’ve spoken to the BMA about whether there is some useful information XX could provide”
“Our attention has been drawn to the confusion around the new wording of Form ESA65Bwhich requests GPs not to give any more fit notes to a claimant who has been assessed as capable of doing some work.Neither this form or the related GP guidance document refer to the need to continue issuing fit notes to claimants who wish to take the decision to an appeal.”
“The heavily highlighted and stressed message of the current ESA65B is clearly incomplete and and seriously misleading to a busy GP who relies on the DWP for clear and complete guidance. Can you let me know when the DWP intends to issue clarification of this matter to GPs?”
“We have had an issue raised about the wording of the letter Jobcentre Plus sends to GPs headed ‘Help to support your patient to return to or start work’ which states that their patient has been assessed as capable of work so they do not need to provide any more fit notes.”
“What the letter does not point out is that (with some exceptions) ESA may still be paid if someone is appealing the decision in which case they should continue to send fit notes. This is clearly set out in a Parliamentary written answer when the Minister said ‘In order for someone to be paid ESA pending an appeal they need to provide the Department with fit notes in order to be treated as having Limited Capability for Work until the appeal is determined.’ https://www.parliament.uk/business/publications/written-questions-answers-statements/written-question/Commons/2018-05-09/142519 However, there is no reference to this in the letter to GPs nor is it mentioned in the fit note guidance for GPs referred to in the ESA65B. Given the letter clearly says fit notes do not need to be provided it is unsurprising if GPs do not look through all the relevant materials to see if there are any exceptions to this. We therefore ask that a sentence is added to the letter to GPs on the lines of: Fit notes may still be required if patient is appealing the decision. This is referred to on page 9 of the guide on gov.uk- The benefits system: a short guide for GPs”
(Current ESA65B – past version)