Tag Archives: mental health

PIP and Mental Illness Guidance

The most common search terms by far for people coming to my blog are PIP and mental illness. People find my blog because I wrote a post condemning assessments of people with mental illness for PIP and society’s attitudes towards mental illness in general. Maybe that’s what people coming to the post were looking for anyway but I’m concerned people looking for guidance on their own individual circumstances are not finding it so I went looking for some practical advice which I could link to for those visitors. It’s no wonder people are ending up here. The vast majority of pages out there are political in nature. PIP is very much in its infancy and people on DLA on 7 April 2013 don’t need to worry too much for now. If you’re making a new claim, I’m sorry to say that there doesn’t seem to be a great deal of written advice out there at the moment. The best one I’ve seen is on Disability Online and gives quite detailed guidance. In particular, it specifies the dates on which PIP is being rolled out in different postcodes and runs through the application process.

4/10/13
A Benefits advisor I follow on Twitter also recommended Benefits and Work. The site isn’t specifically for people suffering from mental illness but I trust her judgement so it’s probably a pretty good general source of guidance.

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UN Convention on the Rights of Persons with Disabilities

In 2009 the UK ratified the UN Convention on the Rights of Persons with Disabilities, not just to protect disabled people but to actively promote the rights of disabled people to participate fully in society and to live with dignity. A fundamental aspect of this is the right to independent living. These principles had cross party support, although it was a Labour government which actually ratified the Convention. On 1 March 2012 the Joint Select Committee on Human Rights reported on the implementation of the right to independent living. I’ll come back to the detail of that report another time but for now I want to emphasise what the Convention actually says. The Committee explained that its purpose is to:

“promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.”

The Convention doesn’t just reaffirm the existing human rights of disabled people but:

“sets out the practical action that is required to remove barriers and put in place the support to make the human rights of persons with disabilities an everyday reality.”

Because the emphasis of the Convention goes beyond protection of rights to actively promoting them, it goes further than human rights treaties normally do by requiring States to actively:

“establish a domestic framework to promote and monitor implementation of the Convention including designated leadership within the Government, an independent framework to promote, protect and monitor implementation, and the active involvement of civil society—and disabled people’s organisations in particular—in both implementation and monitoring.”

A quick reminder. Our Government has just published a response to the WOW Petition saying it can’t be expected to conduct a full impact assessment of its social security reforms on disabled people. Michael Meacher MP has also reported that he found it impossible to arrange a meeting between interested parties and Iain Duncan Smith or Mark Hoban.

The Convention includes (Article 3) general principles and governments’ interpretation of the rest of the Convention should have regard to these principles:

– “Respect for the inherent dignity, individual autonomy (including the freedom to make one’s own choices), and independence of persons;
– Non-discrimination;
– Full and effective participation and inclusion in society;
– Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity.”

Next, Article 4 lays out the obligations member States agree to abide by. These general obligations “explicitly recognise that States are under an obligation to take positive actions in order to comply with the Convention” and include obligations:

– “To ensure and promote the full realisation of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability;
– To adopt all appropriate legislative, administrative and other measures for the implementation of the rights in the Convention;
– To take all appropriate measures (including legislation) to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities;
– To take into account the protection and promotion of human rights of persons with disabilities in all policies and programmes;
– To ensure that public authorities and institutions act in conformity with the Convention;
– To take all appropriate measures to eliminate discrimination on the basis of disability by any person, organisation or private enterprise;
– To take measures to the maximum of its available resources with a view to achieving progressively the full realisation of the economic, social and cultural rights in the Convention;
– To consult closely with and actively involve persons with disabilities, through their representative organisations, in the development and implementation of legislation and policies to implement the Convention, and in other decision-making processes concerning issues relating to persons with disabilities.

Are you finding it hard to believe that not only did the UK sign this Convention but it actively campaigned for its signature by other countries, let alone that it was a cross-party effort?

Article 19 is more specific:
“States Parties to the present Convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that:
a) Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement;
b) Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community;
c) Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs.”

The Committee says:
“Of particular importance is the elimination of living arrangements that segregate and isolate people with disabilities (e.g. institutionalisation), unless that choice is made by the disabled person. Article 19 thus requires States Parties to ensure that people with disabilities are able to live in the community with accommodation options equal to others, and that these options support the inclusion and participation of people with disabilities in the life of the community. Article 19 requires that States ensure that disabled people have the opportunity to choose with whom they live on an equal basis with others.”
and
“In order to realise these freedoms, States Parties are obliged to ensure that disabled people have access to a range of support services that they may require in order to live freely in the community, and to avoid isolation and segregation from the community. The Convention also requires that steps are taken to ensure that mainstream community services and facilities must be available to disabled people on an equal basis with others and responsive to their needs.”

The UK Government itself has defined independent living as
“all disabled people having the same choice, control and freedom as any other citizen—at home, at work, and as members of the community. This does not necessarily mean disabled people ‘doing everything for themselves’, but it does mean that any practical assistance people need should be based on their own choices and aspirations”.

The Committee discovered that the Government didn’t understand the legal status of the Convention. I’m going to indulge myself by going into this issue a bit further. The then Disabilities Minister (Maria Miller) said that she thought that the Convention was “soft law” in oral evidence. Her reply to the question “Is it hard law or soft law?” was

“the UN Convention is soft law—if one uses those terms—because it is a Convention that does not have legal standing, but it is very much a Convention which every Department is signed up to […] it does drive at the heart of our approach although technically […] it is a soft law approach.”

That’s absolutely incorrect and the Committee took the step of taking legal advice on the question. It summarised its advice and conclusions following that advice. I won’t quote it because I’m not so self-indulgent as all that. To sum it up:
– The Convention is binding international law—i.e. “hard” law.
– It is an international treaty willingly entered into by State Parties and is subject to the law of treaties and the principle that States enter into international agreements and implement those obligations in good faith.
– Since Parliament ratified the Convention on 8 June 2009, the UK has had “hard” international law obligations under it.
– The European Court of Human Rights has begun to take note of the Convention when it interprets the European Convention on Human Rights.
– The UK Courts are required by the Human Rights Act 1998 to take account of ECtHR case law and the Government is bound by its judgments in cases against the UK.
– The Convention wasn’t just ratified by individual states. The EU ratified it as a separate body and is therefore required to interpret EU law and regulation compatibly with the Convention.

Very much hard law. In a generous move, the Committee suggested that perhaps Maria Miller’s mis-step arose out of her not understanding what the terms “hard law” and “soft law” actually mean. The Committee suggests that her confusion over whether the treaty is “hard law” which must be complied with lies in her department’s failure to grasp that the lack of an individual right to bring a claim under it is an entirely different thing to “soft law”. It’s true that it’s not possible to just sue the Government for non-compliance with the Convention. If you bring another claim (say for judicial review of a particular policy like the Bedroom Tax) the UK Courts are required to have regard to the provisions of the Convention in deciding the claim though. It’s the fact that the Government is required to comply with the Convention that makes it “hard law”. The status of the Convention and the way in which is can be enforced are the same as the status of the European Convention of Human Rights and the method of its enforcement before the introduction of the Human Rights Act 1998. Since the Human Rights Act was introduced, it has been possible for individuals to bring direct claims in the UK Courts for breach of the European Convention of Human Rights but that doesn’t mean the Government wasn’t required to comply with the ECHR before 1998 or that UK Courts didn’t take it into account when deciding cases which rose human rights issues before 1998. My inner lawyer finds it hard to believe a Disabilities Minister could make such an obvious mistake when we have decades of international treaties in the human rights sphere to look back on. In practice though, I’m beyond being surprised by the utter stupidity of statements coming out of Government. Anyway, the bottom line is that the Government does have to comply with the Convention and UK Courts are required to have regard to the Convention in any cases involving human rights which fall within its remit.

The Committee went on to consider the obligations of “progressive realisation and non-retrogression”. These are extremely important issues due to the nature of the “reforms” the Government is making:

“As we pointed out in our recent Report on the Welfare Reform Bill, where international human rights treaties protect social, economic and cultural rights, the State is under a particular type of legal obligation: it must take deliberate, concrete and targeted steps towards the realisation of those rights ‘to the maximum extent of their available resources.'”

So, the UK is required to keep up forward motion and not slip backwards in its treatment of disabled people. In the era of austerity, the issue of available resources is vitally important and the Committee wasn’t about to simply assume that the argument that the UK needs to save money justifies departure from the Convention. I couldn’t put this any better than the Committee so I’m just going to quote the whole explanation:

“the duty of progressive realisation entails a strong presumption against retrogressive measures. In its General Comment on the scope of the UN Committee on Economic Social and Cultural Rights right to an adequate standard of living and to social security, the ICESCR explained:
‘There is a strong presumption that retrogressive measures taken in relation to the right to social security are prohibited under the Covenant. If any deliberately retrogressive measures are taken, the State party has the burden of proving that they have been introduced after the most careful consideration of all alternatives and that they are duly justified by reference to the totality of the rights provided for in the Covenant, in the context of the full use of the maximum available resources of the State party. The [ICESCR] will look carefully at whether:
(a) there was reasonable justification for the action;
(b) alternatives were comprehensively examined;
(c) there was genuine participation of affected groups in examining the proposed measures and alternatives;
(d) the measures were directly or indirectly discriminatory;
(e) the measures will have a sustained impact on the realization of the right to social security, an unreasonable impact on acquired social security rights or whether an individual or group is deprived of access to the minimum essential level of social security; and
(f) whether there was an independent review of the measures at the national level.’
So, while the principle of progressive realisation within available resources affords States a degree of flexibility in achieving the objectives of the Convention, it does not absolve States of the responsibility to take active steps to protect and fulfil those rights. “Retrogressive” measures, that is, measures which represent a backwards step in terms of the realisation of the rights concerned, require strict justification and even then are not permissible if they are incompatible with the “core obligations”. Although States are free to secure their minimum obligations through a variety of means, those obligations have a “minimum core”, and any failure to meet the minimum standards envisaged will be in violation of the international standards which the United Kingdom has accepted.”

Both the Joint Select Committee and the ICESCR have considered the extent to which social security is an element in achieving the aims of the Convention and the Committee quoted the ICESCR again:
“The right to social security is of central importance in guaranteeing human dignity for all persons when they are faced with circumstances that deprive them of their capacity to fully realise their Covenant rights. To demonstrate compliance with their general and specific obligations, States parties must show that they have taken the necessary steps towards the realisation of the right to social security within their maximum resources, and have guaranteed that the right is enjoyed without discrimination and equally by men and women”.

Violations of this principle would include, for example:
“the adoption of deliberately retrogressive measures incompatible with the core obligations […] the formal repeal or suspension of legislation necessary for the continued enjoyment of the right to social security; […] active denial of the rights of women or particular individuals or groups. Violations through acts of omission can occur when the State party fails to take sufficient and appropriate action to realise the right to social security. In the context of social security, examples of such violations include the failure to take appropriate steps towards the full realisation of everyone’s right to social security; the failure to enforce relevant laws or put into effect policies designed to implement the right to social security […]”

The Committee also noted that the ICESCR had made a statement on the right to housing:
“a general decline in living and housing conditions, directly attributable to policy and legislative decisions by the States parties, and in the absence of accompanying compensatory measures, would be inconsistent with the obligations under the Covenant”.

Finally, the Committee reported that the ICESCR:
“has also emphasised the particular responsibility on states to ensure that the most vulnerable do not bear a disproportionate burden at times of public spending cuts:
‘The [ICESCR] wishes to emphasize, however, that even where the available resources are demonstrably inadequate, the obligation remains for a State party to strive to ensure the widest possible enjoyment of the relevant rights under the prevailing circumstances. Moreover, the obligations to monitor the extent of the realization, or more especially of the non-realization, of economic, social and cultural rights, and to devise strategies and programmes for their promotion, are not in any way eliminated as a result of resource constraints […] Similarly, the [ICESCR] underlines the fact that even in times of severe resources constraints whether caused by a process of adjustment, of economic recession, or by other factors the vulnerable members of society can and indeed must be protected by the adoption of relatively low-cost targeted programmes.'”

I can’t speak for all disabled people (and I’m fortunate not to be affected by the cuts themselves at the moment, although I’m conscious they could form part of my future) but I don’t think we expect fairytale lives. What disabled people are losing now are some of their most basic rights and there is no way it could be said that many disabled people will be able to live independent, fulfilling lives as all of the “reforms” take effect. On 1 March 2012, this was the reported reality for disabled people in the UK:
“The most recent evidence, from the ODI’s Life Opportunities Survey, confirms that… 16% of adults with impairments experienced barriers to education and training, 57% experienced barriers to employment (compared with 26% of those without impairments), 75% experienced barriers to using transport (compared with 60%), 44% of households with at least one person with an impairment experienced barriers to economic life and living standards (compared with 29%) and 82% experienced barriers in leisure, social and cultural activities (compared with 78%).We note the significant disadvantage to disabled people which persists in relation to choice and control and levels of participation in economic and social life and the impact this has on their economic and social well-being, and on what many of our witnesses considered to be their enjoyment of basic human rights. We therefore welcome the Government’s recognition that more progress is required to promote disabled people’s right to independent living.”

Nearly exactly a year later Zoe Williams drew a stark picture of what life is becoming for the most severely disabled people in the UK today. It seems to me that the Government’s continued failure to engage with disability rights activists and even interested mps and to take measures to assess the impact of its reforms on disabled people can’t be justified in the context of the Convention. If you’re wondering why I haven’t said that the reforms themselves breach the Convention, I believe that some or all of them probably do but the proper first step is engagement with disabled people and a full impact assessment to prove it. That’s the bare minimum the Government should be doing right now, today, and it should suspend all further reforms until it has done so. I believe that if the Government took that step, it would have to change course.

PIP and Mental Health

Note: if you are looking for specific guidance on how PIP applies to mental illness, I’d recommend PIP and Mental Health Guidance

I’m ashamed to live in a country which applies a presumption of guilt to disability benefits claimants. At best, the system stigmatises and humiliates without lasting effect to health or benefits. At worst, this cruel system not only results in people losing essential financial help but also risks making their condition worse. I was asked my views on benefits, specifically PIP for people suffering from mental illnesses. I thought about it and decided I don’t have a 140 character answer to whether people who are mentally ill should be reassessed for PIP. Well, I do. The answer is no but I’m a lawyer and that’s not how we roll. I wanted the time and space to really think about it. I’m not breaking new ground and I’m not an expert on mental ill health by any means. If you suffer from mental illness or know someone who does or actually are an expert, please feel free to tell me if you think I’m getting it wrong here. The question I was asked was a broad one, encompassing “common mental health problems” and psychotic disorders. Common mental health problems include generalised anxiety disorder, mixed anxiety and depressive disorder, depressive episode, phobias, obsessive-compulsive disorder and panic disorder. Psychotic disorders include schizophrenia and other delusional disorders, manic episodes and bipolar affective disorder and other affective disorders with psychotic symptoms.

When I saw Lynn Blackmore’s petition to exclude people with certain serious mental illnesses from PIP assessments, I thought of one father’s description of his son’s struggle with paranoid scizophrenia The UK has a long and shameful history when it comes to mental illness. This is amply demonstrated by statistics on the prison population and homelessness. In 2011, the Law Society Gazette reported that 90% of prisoners in England and Wales suffer from some form of mental illness. 90%. Over and over again reports have been written on the extent of mental illness and learning disabilities among criminal defendants and the prison population but, far from getting better, the picture can only get bleaker as cuts across the board, in healthcare, education, social care, welfare and Legal Aid take hold. Rather than trying to narrow figures on homelessness down to a similar single figure I’d recommend this report which sets out interesting worldwide research. People with the most severe forms of mental illness are routinely failed. They also have the greatest need and DLA provides vital support in their care. I’d like to think that most people would agree that people like Lynn Blackmore’s son and (before his recovery) Jonathan Rayner’s son should receive PIP without any argument. However, the fact that one of the most vulnerable groups in society is consistently shortchanged by so many different state agencies suggests that there’s far less compassion about than I might like to believe. Still more cynical is the thought that it’s their very vulnerability which makes it so easy for the state to not just allow them to slip through the cracks but to actively drop them through them by means of wilful neglect.

DLA is not about whether a person is or isn’t working. It’s provided on the basis of medical need, with mobility and care components. The care component provides vital support for people suffering from mental illness (and their families). Unfortunately, the level of public debate (particularly in the media) seems to be so poor that the two issues are conflated and people could quite reasonably conclude that the Government’s message on DLA is “they’re costing you money. They refuse to work. They don’t need these benefits.” The nature of mental illness being what it is and the test for DLA being what it is, it probably is the case that most (if not all) people on DLA due to mental illness are also unable to work but it’s disingenuous to imply that DLA is paid on any basis other than need. As far as ESA is concerned, society needs to accept that there will be periods in mentally ill people’s’ lives where they are unable to work. Some will never be able to. It’s also extremely difficult for mentally ill people to find and keep work, even when they are medically able to work. As you know if you’ve read my previous post How Many Elephants, I believe it’s rank hypocrisy to move people from ESA onto unemployment benefits without doing anything to change public perceptions of disability as a whole. In researching that blog, I found that only 10% of mentally ill people are in work. Even if you are the most reactionary person in the UK, you surely can’t believe that 90% of mentally ill people are “skivers”? So, enough pandering to the Government’s desire to shift the goalposts on the issue of DLA.  Just over 1% of the working-age population is receiving DLA for reasons associated with mental health, a far lower figure than estimates of the prevalence of more severe mental health problems in the population as a whole(Responsible Reform Report). The number of DLA claimants with a mental illness has increased since its introduction but there isn’t evidence to support any view that this is due to abuse of the system. In fact the Report I just mentioned cites a WHO study saying that mental illnesses have been increasing globally.

It seems fair to suggest that some forms of mental illness, particularly “common mental health problems” such as depression and anxiety disorders are often treatable, in which case, they might not give rise to DLA entitlement under the current system or they might only result in a relatively short period of entitlement. Between 8% and 12% of the UK population suffer from depression in a year yet only just over 175,000 people with “psychoneurosis” (which includes other forms of mental illness such as anxiety) received DLA in 2011 (see table). Relatively speaking, very few people with common mental health problems are in receipt of DLA at any given time. Only the most severely affected will meet the strict criteria already in place for DLA. People suffering from such conditions may well be entitled to DLA and ESA at various times in their life. I’m not being dismissive of them but, with treatment, many people are able to manage to a sufficient extent that they either don’t need DLA at all or won’t continuously meet existing thresholds for DLA. This is relevant to the image of people spending “a lifetime on welfare” we’re often sold.

It’s the duty of the healthcare system to ensure those suffering from common mental health problems (and indeed all mental illness) have the help they need in order to give them the best possible chance of recovery and/or management. While treatment is ongoing or if the healthcare system fails them, social security should step in, in the way it should for a physical condition which the health service fails to treat. Of course, the mind being the astonishingly complex thing it is, general rules can be risky. Some people won’t respond to treatment (my experience with my own brain chemistry’s sick sense of humour when it comes to pain signals makes it easy to see this, even if I haven’t experienced it in a mental health context) and the results could include chronic mental ill health and/or a broadening of symptoms or even new additional conditions. This isn’t the fault of the mentally ill individual but if compassion is lacking in the discussion over psychotic disorders, it seems to be utterly absent in relation to common mental health problems. Most people accept that they can’t begin to understand what it’s like to be inside the mind of a paranoid schizophrenic but they’ll take a far more cavalier attitude to conditions like depression. They think, for example, they know what it means to be depressed. The word is bandied about by people who’re just having a bad week.

Subjective conditions make easy targets because people can convince themselves that they do know what it’s like and they can choose not to believe what they are hearing about the subjective condition. Nobody other than the people with the subjective condition can really grasp what it’s like and even people with the same condition will experience it differently. That’s why it’s so easy for the Government and media to claim that certain conditions are particularly open to abuse. I don’t suffer from mental illness. I don’t understand what it’s like to be depressed, have an anxiety disorder or any other form of mental illness but I do have a subjective condition so this is a question I’ve thought about a lot in the context of my condition. That’s my starting point for considering the failure in empathy towards people with mental ill health, I suppose. Lack of empathy shouldn’t be the automatic response to health problems we haven’t experienced but it does seem to be widespread. By way of example, people may lack empathy for others whose depression is triggered by a specific personal crisis like bereavement, divorce or the loss of their job whereas ex-servicemen suffering from mental illness are a rarity in the discussion of mental health because other people tend to be more sympathetic to them. They see an “objectively reasonable” cause to trigger the mental illness. As a society, we need to move past that approach. There’s no point asking ourselves how we would respond in someone else’s shoes. We’re likely to kid ourselves into believing both that we’re “stronger” than that other person and that too many people don’t just “get on with things”. As a nation, this is signalled by our love of the stiff upper lip, Blitz spirit: keep calm and fucking well carry on. Our image of ourselves as a society is predicated on the (probably unhealthy) rule that we shouldn’t wear our hearts on our sleeves and should muddle along (“oh. Y’know. Mustn’t grumble”). Unfortunately, this approach completely ignores the illness element of mental illness. The whole point is that people suffering from mental ill health experience life differently to the “normal” people who judge them so harshly.

By failing to understand this society opens the doors to the Government and the Tabloids. We enable them to spread stories smearing people with mental health problems. Only those with the most severe and chronic conditions are entitled to DLA under the present system. We ought to have the decency to admit that those people go through enough as it is, without putting them through the trauma of a WCA, not because their own condition has changed but because the Government wants to tinker with entitlement criteria until it succeeds in moving as many people as it can off disability benefits. Mental health charities have expressed serious reservations about the draft PIP descriptors, with MIND saying the DWP

“did not adequately consider issues such as fluctuations in symptoms, the management of medication and therapies, financial management, and problems with engaging socially. Concern was also expressed that the proposed PIP assessment did not ensure that disabled people were able to remain safe. Whereas DLA considers specifically if someone faces substantial risk if there is no one to watch over (supervise) them, PIP does not.”

I believe it’s both unnecessary and (if the system used is anything like that used for ESA, which is more than likely) cruel to put any mentally ill person currently on DLA through a WCA. If the DWP wants information about the current state of their health it should either be able to get it from the current medical professionals treating the individual or knock heads together until that person gets off a waiting list and into treatment.

Personally, I don’t agree with WCAs in their current form for anyone. Even if we weren’t hearing truly horrific stories about ATOS, I’d still believe that any disabled and/or ill person would be put at risk by WCAs in this form (based on my own experience of assessment for an insurer) and that people with mental health conditions would be in a high risk group. So, in addition to believing that those people who have mental health conditions and are on DLA shouldn’t be put through a WCA for PIP, I also believe that those who are on ESA and are put through a WCA (and potentially moved into the work related activity group or off ESA altogether) could actually be put under such strain that the whole process makes their condition worse and, potentially, leads to a greater likelihood that someone suffering from a common mental health problem could be at greater risk of developing a more intractable condition as a result of the process. That’s my entirely non-medical view.

People who suffer from the most severe forms of mental illness and/or have learning disabilities are treated appallingly in the UK and there is no halcyon age to look back on. It’s getting worse but it’s never been good. It would take effort and investment in healthcare & social care, education, social security and the justice system to improve matters and there is little appetite for that. Lynn Blackmore’s petition needs 10,000 signatures by 20th March just to trigger a response from the DWP to her plea to exclude severe and enduring mental health sufferers from reassessment for DLA/PIP purposes in 2013. She still needs nearly 3,000 signatures at the time of writing. In addition, to call for a full impact assessment of all disability benefits reforms, you can sign the WOW Petition

Post on guidance for PIP claimants with mental illnesses.