IMPORTANT! ESA Regs 29 & 35: What must be done ~ Welfare maze is overwhelming GPs and failing patients who are left ‘in limbo’

Black-Triangle-Fist-Black-with-Silver-LiningFor some months now our campaign has been encouraging GPs and patients to avail themselves of ESA Reguations 29  and 35 as a means to protect sick and/or disabled people who are at risk of avoidable harm by being inappropriately found ‘fit-for-work’ or capable of work-related activity and thus placed in the Work Related Activity Group (WRAG) with all of its attendant sanctions for failure to comply.

We have been lobbying hard for the BMA to publicise these regulations among doctors but our efforts have thus far proved fruitless.

We have encountered a number of obstacles which too complex to go into in detail in this post but here are some points: 

Conflicts of Interest 
GPs are in a contractual relationship whereby they are obliged to provide information to the DWP but only when asked to do so. The ESA 113 form utilised is wholly inadequate and gives less than one side of A4 for the GP to state significant diagnoses, investigations and treatment. 
The position of the Local Medical Committees (local GPs’ associations) is that there must be charges for any additional appeal letters. They have a duty to protect their members from being forced to carry out unpaid work and a corresponding increase in GPs’ workloads.
The position of claimants is that they are being forced into abject poverty on the basis of erroneous judgments as to their fitness for work by the operation of the DWP-Atos Work Capability Assessments. The BMA’s membership voted overwhelmingly in June for leadership to demand that the WCA ‘end with immediate effect to be replaced by a rigorous and safe system that does not cause avoidable harm’ .  
The doctor’s regulatory body, the General Medical Council (GMC) maintains that it has no say in how the WCA operates and is not their regulator, yet it has granted DWP-Atos Assessment Centres ‘Approved Medical Status’ in full cognisance of the fact that the ‘systems and policies’ which underpin the WCA’s operation have irrefutably been shown to be gravely harmful to tens, perhaps hundreds of thousands of patients. The GMC’s own publication ‘Good Medical Practice’ (which outlines the ethical principles upon which doctors must conduct themselves) states that:
 ‘… a doctor must (overriding duty or principle) take prompt action if he feels that “patient safety is or may be seriously compromised by inadequate… policies or systems.’
ESA Regulations 29 & 35 deal with flagging up a substantial risk of harm to patients if they were to be found ‘fit for work’ or to have ‘limited capability for work’ and placed in the Work-Related Activity Group (WRAG). However, only the DWP is aware that these regulations can be applied. The vast majority of GPs remain ignorant of them, at grave cost to their patients and indeed, risk to their very lives.
The BMA represents the views of all doctors, including decision makers such as DWP Chief Medical Officer Dr. Bill Gunnyeon and includes doctors working for Atos. They are not immune from these duties placed upon doctors.
GPs are still required by the DWP to complete ‘Fit Notes’ and provide Sick Notes. Does this not make a mockery of the BMA’s statement that a GP must not be involved in the decision as to whether someone is fit for work?
DWP-Atos consistently get it wrong. Additional medical information is almost never requested from the GP at the time of assessment of afterwards.
They admit as much in their statement after the death of Mr. Brian McArdle R.I.P.:

The Department for Work and Pensions said:

“Our sympathy goes out to Mr McArdle’s family during what is obviously a very difficult time.

“Through employment and support allowance (ESA), we help people move from benefits and back into work if they are capable of doing so, while giving unconditional support to those who need it.

“A decision on whether someone is well enough to work is taken following a thorough face-to-face assessment, and after consideration of all the supporting medical evidence from the claimant’s GP or medical specialist.

“We encourage people to provide as much medical evidence as possible when they apply for ESA. Often, people found fit for work only provide the necessary evidence when they ask for a reconsideration or an appeal.”

Atos Healthcare said:

“Our sympathies are with the friends and family of Mr McArdle.

“Although we cannot comment on individual cases, our trained doctors, nurses and physio-therapists strictly follow the guidelines given to them by the Government when conducting assessments, which form a single, although important, part of the process.”


In this maelstrom of conflicting interests between the ethical versus contractual considerations confronting the BMA and the medical profession and those of us as sick and/or disabled people being systematically abused and deprived of their fundamental human rights by the Condem government and the DWP-AtoS régime:

Our campaign demands and asserts that the conundrum be resolved in a manner that reconciles all of the abovethe most ethical solution must be one that causes the least harm to patients.


The BMA’s current position is unsustainable and they must convene a top-level meeting with us without any further ado.

When is someone in the medical establishment going to take a moral and ethical lead? 

Patients are dying while the chaos described in the article below is permitted to endure.

In the meantime, pending resolution of these matters, we strongly advise all sick and/or disabled people who have good cause to believe that their lives, health and well-being would placed at substantial risk of harm were they to be found fit-for-work or placed in the WRAG to encourage their GPs to use our letters invoking Regulations 29 and 35 as a template.

It is important to remember that whether or not your GP agrees to invoke these regulations involves a judgment of complex clinical risk management. Any information which you can provide them as to why you think you would be placed at risk is likely to be helpful to them in making their judgment. We believe that in a very substantial number of cases it will likely be a clear-cut decision owing to the nature of the particular illness(es) and impairments presented by the individual patient in question.

Under no circumstances would we condone any inappropriate acts or behaviour on the part of patients to coerce their doctor into invoking these regulations against the GPs clinical and ethical judgment.

From the practitioner’s point of view, we have found that the use of this template has proven to be of great assistance in reducing time spent filling out forms, digging out medical records and writing additional letters of support. In a great many cases the costly and stressful need for a Tribunal hearing to take place at all has been avoided as the DWP Decision Makers have re-instated benefits upon receipt of the declaration.

We believe that the mass up-take and dissemination of the regulations provides the solution to the current disastrous and dangerous situation as described to the Scottish Parliament’s Welfare Reform Committee below.

John McArdle



9th February 2013 

Scotland on Sunday



Doctor's Desk

By EDDIE BARNES Published on Sunday 3 February 2013 13:18 

THOUSANDS of vulnerable claimants are losing out on benefits because GPs are not filling in forms correctly, Scotland on Sunday has learned. 

The massive reform process – currently reassessing the sickness benefit claims of thousands of people in Scotland and the UK – has already attracted widespread controversy, with some claiming they are being forced to look for jobs when they cannot work.

New details emerging suggest that a dysfunctional system is to blame, with benefits being wrongly withdrawn purely because forms have not been completed.

Atos, the company supervising the assessments, has suggested that thousands of people are being called in for a review of their benefits because GPs have not sent back forms setting out their medical history as requested. If they had, their benefits might have been left unaltered.

Critics of the government’s welfare reform programme have told MSPs that the welfare system is “broken” and have called for a better approach to helping people on benefits, who are missing out because of an overly complex system.

There is also evidence that when people appeal the loss of their benefits, some GPs are charging up to £100 for a medical report because it falls outside their contract.

There are also accusations that Atos, acting on behalf of the Department for Work and Pensions, has failed to engage properly with GPs, leading to erroneous decisions being made.

Others claim the views of medical professionals with knowledge of people’s cases – such as psychiatrists and specialist staff – are not being considered before claimants are assessed.

The row revolves around Britain’s 1.5 million claimants of incapacity benefit, who are having their claims reassessed as the UK government seeks to trim the welfare budget.

Figures last week showed that a third are being adjudged capable of working, while a further 41 per cent have been deemed too unwell but told to consider a return to the labour market at a later date.

Evidence presented to Holyrood’s welfare reform committee has now pointed out a series of bureaucratic errors in the process.

It is understood that when considering a person’s benefits eligibility, Atos asks for GP reports in 15 per cent of cases as it seeks evidence on whether to allow the benefit to continue.

MSPs have been told that, in as many as half of these cases, requests do not get answered.

Benefits may be getting slashed as a result.

Scotland on Sunday understands that, in cases where people appeal a reduction in their benefits, two-thirds are successful thanks to the submission of evidence from GPs that had not been retrieved at the start.

The result, it is claimed, is a massive cost to the taxpayer, with appeals costing an estimated £60 million.

Welfare rights groups also claim many people are likely to be falling through the net.

Even if they appeal, it is understood that the process takes around six months to be heard, adding to the stress on people already suffering from physical or mental problems.

Labour MSP Michael McMahon, convener of Holyrood’s welfare reform committee, said last night:

“It is shocking that some of our most vulnerable are being left in limbo as sets of papers are sent to and from Atos and GPs.”

He added:

“We know how much pressure GPs are under, but it simply is unacceptable for disabled Scots to lose their benefits because lengthy forms haven’t been completed.

“For GPs to then get paid to write a letter when the decision to axe benefits is appealed shows how broken the system is.”

The committee heard evidence that when people request GP support in an appeal, they are sometimes being charged by the family doctor.

Sarah Flavell, of Gordon Rural Action, told MSPs:

“In a particular instance, the GP just said ‘I haven’t got time to do it,’ and then said that the report would cost £96. If we did not have that report, perhaps we would not have been successful in the appeal.”

But GPs say the problem is that they are struggling to meet the extra workload.

One GP in the Springburn area of Glasgow, Dr Georgina Brown, told MSPs that requests for claimant letters were taking up 12 per cent of her consulting time.

She also revealed that there is a patchwork system:

“Some practices have stopped doing letters altogether because they do not have the resources. Of the six practices in the health centre that I work in, three of us do letters and the other three have had to stop because they cannot manage.”

She said GPs were aware of the problems but that:

“there has to be a point at which they put their own health first and get home before eight o’clock at night”.

Others blamed the DWP and Atos, saying they were failing to contact GPs properly at the start of the process.

A spokeswoman for the British Medical Association said that GPs would provide letters when requested by the DWP or Atos, but a request from patients or solicitors for support during appeals was a “private request” not covered in their contract.

A Scottish Government spokeswoman said:

“We have worked hard to reduce the workload on Scottish GPs in order that they can focus on improving outcomes for patients, and we are keen to protect necessary time for GPs to be involved in these vital reforms.

“DWP does not currently publish information on assessments, and if they can tell us about where there are problems in gathering the necessary information from GPs, including where the absence of evidence is affecting individuals’ entitlement to benefits, then we can work with them and health boards to find ways to make the system work better.”

An Atos Healthcare spokesman said: “We contact GPs asking for further medical evidence only when we believe that this may avert the need for a face-to-face assessment.”

Employment minister Mark Hoban said last week: “Getting the Work Capability Assessment right first time is my absolute priority, and I am committed to continually improving the process.”

Scotland on Sunday

21 thoughts on “IMPORTANT! ESA Regs 29 & 35: What must be done ~ Welfare maze is overwhelming GPs and failing patients who are left ‘in limbo’

  1. Boadacia! says:

    Amazing what a bunch of fascist torturers can achieve in twisting and fiddling the laws to suit them. I have a feeling it is going to be a wonderful summer, especially when those that actually voted for these excuses for humans, realise they are turkeys voting for more Christmases!

  2. jay says:

    Don’t worry folks Hoban’s absolute priority is getting the WCA right first time.
    He then follows up with being committed to continually improving the process.

    If you get it right first time there would be no need to improve it would there?
    You would get more sense from a Dalek.

    Doesn’t he realise he’s too late, it doesn’t work. I suppose if you support Atos and deny disability it’s also easy to deny that people are suffering and have died too.

    Having said that it’s time for the General Medical Council (GMC) to withdraw from granting DWP-Atos Assessment Centres ‘Approved Medical Status.’

    They must be aware that they are breaking their own duty and principles that a doctor
    must take prompt action if he feels that “patient safety is or may be seriously compromised by inadequate… policies or systems” as mentioned in section 4 above.

    It’s their responsibility to help and protect us. Time for immediate action

  3. jeffery davies says:

    oh well more of the same as doctors cant make their minds up about atos dwp who together lie to take your benefits away from you .thers no such morals at atos its come in bend a arm leg ftwork goodbye but then you never now till wks later monies stop ops atos lies again and gets a bonus for it also jeff3

  4. DNA sequence No. 94586556571465686 (your new official ID) says:

    GP’s are only interested in the filthy lucre, AtoS its all about the money, DWP staff get a bonus if they cut the benefits bill, Jobecentre plus staff data match your benefit data with bank acc data provided by banks who do this so the Gov don’t prosecute them for billions of pounds of PPI fraud they have committed, Jobcentre plus rake in millions every year from raiding the bank accounts of claimants who have not declared their savings because if they did they wouldn’t get any benefits, the whole system is designed to oppress the people take their money from them, deny them benefits.
    There are a lot of business and professional people making a whole lot of lolly out of the misery the disabled are going through. The whole WCA, Atos, BMA, GMC, GOV, DWP, JCP, war on claimants/disabled and sick stinks to high heaven.

  5. Andrew Healey says:

    Hello again, sorry I’ve not posted for a while but since my journey to my appeal in November 2012 I have really not been well, even my grand daughter who normally types for me hasn’t been able to get much sense out of me. Here’s a brief summary of the appeal I turned up a hour early as they had given me two times. Two days before I had stopped taking my Morphine so they would have some idea of the pain and the problems it causes with mobility. This they bollocked me for, but what really surprised me was what they said, even before I had sat down ” right you can go now we will let you know by post” I had all my reports with me bang up to date I had no representation just me. I had to take some Morphine at 3.28am that morning just enough, by the time I got into the room it was wearing off. The D.W.P had put me in the W.R.A.G, it had taken almost twelve month for the appeal to be heard, I did all my own research, joined the Benefits and Work website which allowed me to download numerous pages of help. Then I received the paperwork from AtoS. The report from my doctor astounded me not even one full line it read, Lower back pain since 1990, that date was wrong, I had it from the end of the 70s I worked with it for almost 30 years,also C.O.P.D 2008, that was it. No mention of the Heart problems, or the Arthritis throughout my body, or the emphysema or the other half dozen problems I have, many of which I had while working full time. I have been a patient at that surgery over 40 years, although for nearly 35 years they never saw me I always considered myself fit and healthy. The other surprise was what the AtoS doctor ( I say doctor with apprehension) had written, Three lines ( 1) I am able to advise that the claimed level of disability is consistent with the evidence before me (2) I advise that a return to work is unlikely for at least two years (3) The ESA50, 113 and medical evidence indicates that the client is unlikely to return to work in the longer term. Now the evidence this doctor had before him was medical reports my doctor had received from hospital, plus more I had talked my surgery’s administrator into copying for me. Plus a five page letter I had typed in 2007 explaining in detail how each of my disabilities affected me, this I sent in with my original claim in 2007, plus a three page letter typed in 2012 explaining the up to date disabilities. They held my appeal on a Friday morning, the following Tuesday I received the result, the appeal had been allowed they placed me in the W.R.S.G. now get this. For two years… I have multi degenerative diseases, I have to take copious amounts of Morphine just to be able to stand up, by the time I have taken three steps the pain in my lower spine, legs and feet is starting to flare up, by the time I have got into the kitchen to say make a brew I’m out of breath, and as soon as I start using my hands trying to pick up a cup or fill the kettle my fingers start to twist with the Arthritis. Because of the trouble I have breathing I start to panic and my Heart starts pounding not good. I am fighting this pain 24 hours a day 7 days a week. I do not want to be like this , there is nothing I would like better than getting back to work earning a decent wage doing something I like. The last 16 months have been one long fight just to keep my disability benefit, something I’ve paid for with well over 30 years of hard graft. The fight will start again in April this year. To anyone going through this debacle I would say gather as much evidence as possible spend time listing your disabilities and how they affect you, swamp them with paperwork and FIGHT. This NAZI scum are wrong and another U turn is inevitable. Never give up the fight because that is what life is now for us disabled, we have learned to fight the pain we are use to fighting. P.S nice Tshirt Thanks Black Triangle it fits fine.

  6. jay says:

    Excellent work Geoff.

    I note some of the words used:

    Dr Bill Gunnyeon, the Department for Work and Pensions Chief Medical Adviser, is pleased to invite you to attend an evening update for key stakeholders

    Key stakeholders = One who has a share or an interest, as in an enterprise

    Two of the worlds leaders on the “good work is good for you” movement,Professors Dame Carol Black and Sir Mansel Aylward.
    The UK movement is going gang busters.

    Gangbusters = Extremely successful: an experiment yielding gangbuster results; a profitable, gangbusters quarter.

    These words stand out: share, interest, enterprise, profitable.

    In other words making money out of those suffering from ill health. They all belong in 1930’s Nazi Germany.

  7. Jock says:

    Gave a copy of the Black Trangle letter to my GP.He looked at it and said it was a good idea.I suggested he make some copies of it for himself and the rest of the GP,s in the practice,[mostly a family practice]He then went on to say.He would have to let the BMA look at it before signing,but in the meantime he gave me a pretty good supporting letter.
    Phoned him up a week later to see if he has had the okay to sign the draft letter,stating i fall under Reg29-Reg35.Witch he knows i do incidently.Still no word back says they only meet about once a month,and he will let me know.Fear the BMA will take the easy option.Dont get involved and dont sign.In effect still deal with DWP-ATOS,and hand out unfit for work notes and fit for work notes for your patients.What a bloody mess this system is in.


  8. great ape heart project says:

    I create a comment whenever I like a article on a website or if I have something
    to add to the discussion. Usually it’s a result of the passion displayed in the article I looked at. And after this article IMPORTANT! ESA Regs 29 & 35: What must be done ~ Welfare maze is overwhelming GPs and failing patients who are left ‘in limbo’ | Black Triangle Campaign. I was excited enough to post a thought 🙂 I actually do have 2 questions for you if it’s
    okay. Could it be just me or do a few of these responses come across
    like coming from brain dead visitors? 😛 And, if you are posting at other places,
    I would like to keep up with you. Could you make a list all of all
    your communal pages like your twitter feed, Facebook page
    or linkedin profile?

  9. ireallymeanthis says:

    Traps, contradictions and catch-22s abound in this labyrinth of perpetual misery.
    No wonder some choose to end it all.
    I’d never do that, though. I’d rather die fighting rather than quietly sinking into destution and despair.
    Though I can’t get around very much, i need to have hope. Even though Labour look like they’ll continue would continue with these csame cruel policies.

  10. ireallymeanthis says:

    Last line above; my obvious mistake should have been-
    “…Labour look like they’ll continue with the same cruel policies”

  11. PAUL says:

    just to thank everyone for their support this year.. i have won my tribunal!
    now i can relax a little after a year of terror.

  12. Boadacia Iceni says:

    So, now we all realise that if one is born with any sort of disability or becomes ill after a lifetime of slavery, you can look forward to constant harassment and cringeworthy detrimental propaganda by the privileged of all these disgusting lying political parties, and media, who the ignorant vote in power.

    Time for a change, do we think?

  13. Stepping Razor Sound Plate says:

    `Yellow Alert` Yellow Alert` A good answer for any questions. Now who is nuts !! `Yellow alert` Yellow Alert` Soon to be Amber Alert`

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