DWP ESA Atos Independent Tier Report - 15 February 2010

      Dear Mr B...,

I am writing in my capacity as Convenor to the Independent Tier (IT), to inform you
that the IT has now completed their investigations.

I have copied the findings from the IT, which comprises an assessment about how
the complaint has been handled by Atos Healthcare and also an assessment of the
medical advice provided to the Department for Work and Pensions-

In respect of the administrative handling the IT have commented on:

- The specific issues of your complaint
- The investigation conducted
- The response provided
- The outcome provided
- The tone of the correspondence From Medical Services
- The complaints process

As you will see Atos Healthcare has been supported by the Independent Tier in our
handling of the complaint.

An independent medical practitioner, trained in disability assessment medicine has
also provided an assessment relating to the quality of the relevant medical report
relating to your complaint. The independent medical practitioner has confirmed that
the medical report is completed in accordance with Atos Healthcare's professional
and quality standards.

I can confirm that both assessments oF the Independent Tier have been forwarded to
the office dealing with your claim in Jobcentre Plus. This now concludes the Atos
Healthcare complaints process; if you have any further queries you may contact the
Chief Executive of Jobcentre Plus at the address below:

Jobcentre Plus
Jobcentre Plus Chief Executive,
Room 608, Caxton House, Tothill, London SW1H 9NA

Atos Healthcare aim to provide a professional, fair and courteous service to all
customers who undergo medical examination in connection with a claim for benefit.
On behalf of Atos Healthcare please accept my sincere apologies for the
inconvenience and upset caused to you on this occasion and I hope that any further
dealings with our service will not give you cause for complaint.

Yours Sincerely

Geoff Hampshire
Convenor to the Independent Tier

      

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FILE NUMBER 432

INDEPENDENT TIER FEEDBACK REPORT

Ref: Atos Healthcare Complaints Procedure MED-CPO1 version 4

This report covers the way the Complaint was handled (As explained in the
Convenor's letter of 18 January 2019 to the Customer, the remit of this element
of the Independent Tier is to assess whether Atos Healthcare has adhered to the
agreed complaint process). It is custom and practice for the term "Customer" to
be used to describe the individual who has lodged the complaint.

SPECIFIC issues identified:
This complaint related to the circumstances surrounding a medical examination
conducted on 24 July 2009 (the Customers letter was dated 29 July). This letter raised
9 issues and the Customer also asked when he could expect to receive a copy of the
report.
(Prior to this the Customer had written a letter (dated 28 June 2009) asking a number
of questions related to a medical assessment arranged for the 9 July 2009 that was
subsequently cancelled).
The letters mentioned above were received by Customer Relations (CR) in Leeds on
10 August 2009.

It was clear from the communications the Customer Relations Manager (CRM) sent to
the Highgate Site Manager (HSM) and to the Offices where the Customer had
originally sent his letters, that she recognised the issues relating to his assessment and
the late receipt of his letters by CR. She also addressed the issue regarding his
expenses which was covered in her acknowledgement letter of 10 August. It was not
evident that the issues relating to items 2 and 5 in his letter of 29 July had been
recognised as no action regarding these points was undertaken. He also requested
information as to how he could obtain a copy of his medical report. This issue was
clearly recognised as he was advised of the action he needed to take in the CRM's
response letter of 22 September (it is noted that the opportunity to provide this
information was not taken when the CRM sent her acknowledgement letter on 10
August).

Further communications were received from the Customer regarding what he
considered to be breaches of the Complaints Procedure and he asked for immediate
referral to the Independent Tier. It was confirmed to him why this could not be done
at this time. On 18 August the Customer requested that the CRM cancel an
appointment that Atos Healthcare (AH) had made for him for 24 August. He was
suitably advised on this issue on the same day.

The Customer remained dissatisfied - his letter of 26 September refers, where he
again requested referral to the Independent Tier before due process had been
completed - and he raised 8 specific issues.

It is clearly evident that AH recognised all these issues as the National Customer
Relations Manager (NCRM) provided a response to the Customer Relations Team
Leader (CRTL) on 5 of them, pointed out that items 2 and 3 needed to be considered

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by a Medical Manager (MM) while point 5 should be raised with the Medical
Directors Office for further consideration of the suggestion.
In the meantime the issues addressed in the Customer's letter of 18 November were
recognised, as evidenced by the content of the CRTL's letter of 25 November.

The Independent Tier noted that 2 items in the Customer's letter of 29 July 2009 had
not been considered but otherwise AH staff had recognised the specific issues.

INDIVIDUAL investigation conducted:
At the first stage of the investigation the CRM sought information from the HSM
regarding the circumstances surrounding the Customer's assessment and contacted the
offices to which he had originally sent his letters. This is in line with the Guidance
given in the AH Complaints Procedure (although points 2 and 5 were not followed
up).

At the escalation stage the CRTL primarily elicited the assistance of the NCRM
followed by an MM and this again looked reasonable.

In the main, the Independent Tier considers that an appropriate investigation had been
undertaken.

COMPLETE response provided:
Having sought feedback from the HSM and the offices to which the Customer's
original letters had been sent, the CRM sent a response letter dated 22 September to
the Customer covering most of the issues raised (with the exception of 2 and 5). This
letter also advised him how he could obtain a copy of his medical report.

At the escalation stage the CRTL's response letter of 7 January 2010 addressed all of
the points raised by the Customer in his dissatisfaction communication of 28
September 2009.

The Independent Tier considers that, on balance, complete responses were provided.

OUTCOME provided:
On receipt of this complaint a letter of acknowledgement was sent to the Customer
advising him that a full investigation would take place and he was also sent a copy of
the Customer Relations booklet that explains how complaints are dealt with.

There followed a number of communications from the Customer and these were duly
responded to.

The Customer received an update letter from the CRM dated 4 September that
explained that she was currently awaiting comments from the Contact Centre Team
Leader. When the CRM had received further information she sent a full response
letter dated 22 September to the Customer. This letter identified all those who had
been involved in the investigation thus far.
The Customer's letter of 26 September 2009 was received by AH on the 30th and this
was acknowledged by letter dated 6 October. This explained that his complaint would
be reviewed by a Senior Medical Advisor.  In his letter of the 26th September the

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Customer had requested referral to the Independent TieT so the reason why this could
not be done at this stage was explained in the CRTL's letter of 7 October.

An update letter was sent to the Customer on 11 November in which the CRTL
explained that she was still investigating his concerns and was awaiting a copy of his
ESA50 from the Department of Works and Pensions.

The Customer wrote again on 18 November 2009 and his queries/requests were
adequately addressed in the CRTL's reply dated 25 November.

It was evident thereafter that the investigation continued apace however it was not
until the 7th of January 2010 that a full response letter was sent to the Client. This
communication identified the people who had been involved.
In response the Customer emphasised his desire that his complaint be forwarded to
the Independent Tier. That the complaint had been so referred was confirmed by the
Convenor to the Independent Tier who satisfactorily explained its remit in his letter of
18 January 2010.

The Independent Tier considers that the Customer was kept suitably advised of the
outcome, but would comment that there was an unsatisfactory delay before the final
response letter was sent to the Customer.

TONE is appropriate:
Having read all the communications sent to the Customer by various members of
AH's staff, the Independent Tier considers that they were of a satisfactory standard
and were easy to follow.
The tone was considered to be appropriate to the circumstances of this complaint.

COMPLAINT procedure:
When Customer Relations (CR) received the Customer's letters of 28 June and 29
July a standard Feedback Pro-Forma was completed and a letter of acknowledgement
was sent on the same day. It was not within the control of CR to have responded
within 2 days of the receipt of the letters by other locations in the business because of
shortcomings elsewhere. Once received by them CR is considered to have acted
promptly.
The investigation, as described in an earlier section of this report, got underway on the
13th of August.
Part of the investigation that followed was to try to establish why the letters had not
been forwarded to CR on receipt at their original destination. It was evident that the
CRM was, in fact, unable to determine what had been the reasons for these
shortcomings that led to this situation.

In a further communication (11 August) the Customer requested that his complaint be
forwarded to the Independent Tier. Quite rightly, as well as replying to other
questions raised, the CRM pointed out that it was not possible to do this until the
complaint had been investigated through the stages of the CR complaints process.

The Customer, in his communication of 12 August disputed this, regarding his letter
of 28 June, as he felt that the investigations had been concluded. He received a
response from AH and on 18 August sent another e-mail about an appointment that

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had been arranged for 24 August, while again mentioning that he had not yet received
a copy of the medical report for the examination conducted on 24 July. His questions
about the 24 August appointment and his expenses were answered the same day.

Regarding the investigation that was taking place, the Customer was updated on 4
September (it would have been appropriate at this stage to have given more
information to the Customer - that the investigation was taking longer than expected
and was therefore likely to exceed the target of 20 working days - which is, of course,
allowed for in the Complaints Procedure). He then received a response letter dated 22
September. This addressed the concerns related to the 2 letters not being received hy
CR until 10 August, the journey arrangements, the delayed appointment, the facilities
at Highgate MEC, proof of identity, his expenses and how he could obtain a copy of
his report.

The Customer remained dissatisfied - his letter of 28 September refers - and
requested that his case be submitted to the Independent Tier. (It is noted that a number
or the issues that he wanted to be considered are outside the remit of this element of
the Independent Tier, which is tasked with reviewing how complaints are handled).
He received a letter of acknowledgement dated 6 October; this looked to be somewhat
tardy however there was an intervening weekend.

He received another on the 7th explaining the Rules agreed with the Department for
Work and Pensions (DWP) prevented referral to the Independent Tier at this stage and
an update letter from the CRTL dated 11 November 2009 explaining that a copy of
his ESASO was awaited from the DWP and once this had been received her
investigation would continue.
Another update letter, which again emphasised at what stage referral to the
Independent Tier could take place, was sent to the Customer on 25 November (this
was a response to his communication of 18 November).

The full response letter was sent to the Customer on 7 January 2010 and considering
the time that had elapsed since AH's previous communication, the Independent Tier
feels that a further update prior to the sending or this 7 January would have been
warranted.

Following receipt of a further dissatisfaction letter from the Customer, his case was
duly submitted to the Independent Tier for review.

In the main, the Independent Tier considers that the complaint was handled in line
with Procedure.

One or two shortcomings were noted however, on balance,
in this instance the Independent Tier considers that Atos Healthcare is FULLY
SUPPORTED

MJS for the Independent Tier
3 February 2010
      

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To:
Geoffrey Hampshire
Convenor to the Independent Tier
Atos Origin Medical Services
Wing G, Block1 Government Buildings, Otley Road, Lawnswood, Leeds LSl6 SPU

Reference Number: File 432

Concerning:

Customer details: Mr B...
Nino: ...

Examination details: Employment and Support Allowance Report conducted at Highgate
Medical Centre on 24/7/2009

The Scope of this Independent review

As an Independent Medical Practitioner I have a duty to supply an impartial and expert
opinion on the medical content of the Incapacity Benefit report which is under
consideration in this Complaint investigation.

The report should satisfy the quality standards laid down by Atos Healthcare, which are:

- The medical content must be medically and technically correct, with enough
  detail within it to support any opinions or any advised assessment.
- The report must be fair and impartial.
- The advice must sit within a general medical consensus view. This latter point is
  tested by asking this question-if other doctors examined this patient is it probable
  that they would offer the same opinion?

I have read all the documents supplied by the Customer Relations Team. This includes
the ESA report which is the subject of this complaint and all the ensuing communications
between Mr B... and those members of the Customer Relations Team involved
with his complaint.

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Mr B...'s letters of complaint cover a broad spectrum of concerns. He has
asked for a good deal of action from the Independent Tier to secure a deep investigation
of general standards within Atos Healthcare. I can see the foundations of this request as
he has identified much which is lacking in the management of his case. But I must
confirm that a good deal of what he asks for is beyond the remit of the Medical section of
the Tier. I do not consider that his complaint - based as it is on distressing personal
experience- can be used as a starting point for full investigation of the principles
applied in examination and assessment procedures and decisions on benefit entitlement.
These procedures are governed by Legislation which allows examination by either a
Secretary of State Approved and Registered Doctor or Nurse. In this instance we know
that Mr B... was examined by a suitably Approved Doctor and not a Nurse.
There are no Scrutiny documents within this file so we do not know who made the
decision to call this claimant to examination, but be this either a doctor or a nurse the
action will be within the Regulations outlining such examination arrangements. I see no
point in questioning Statutory Instruments and it is not within the responsibilities of the
Independent Tier to do so. There is a very real difference between breaking a law and
inefficiency. I am not saying that Atos Healthcare has been inefficient - that is for others
in the administrative section of the Independent Tier to decide- but more importantly I
cannot see any "illegal" action within the departments put before me for this particular
case. I will not enter into any wider debate. There are reasons for that- and they are that
very often in such debates the claimant's case can become "lost" in side issues and
ultimately that claimant is not served well. In my experience all parties are best dealt with
by consideration of facts alone. Debate is always healthy but it is not appropriate in the
context of this case and in my experience this sort of to--and-fro dispute rarely arrives at
an agreed conclusion and often only serves to trigger more anger than is good for the
patient involved.

My response will be mainly focussed on the ESA report of 24/7/2009 and any other
medical actions around that event. I will make recommendations at the close of that
review. I will finally give some reaction to a few of the broader issues raised in Mr
B...'s various letters and emails, but those will sit "outside" and will not
influence my assessment of the medical actions and reporting standards for his case.

From the outset in this complaint Mr B... has made it clear that he has no issue
with the receptionist or the doctor who undertook his assessment at Highgate centre. I can
see no stage in any of his later communications where he withdraws support for their
standards.  In many respects this renders superfluous the attention of the Medical
Independent Tier, because our duty is to evaluate the report and ensure that a fair
assessment has been provided for the DWP Decision Maker. As Mr B... is
satisfied with the report my comments may prove unnecessary.

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This type of report can only deal with the evidence before it on the day and cannot be
expected to predict the future development of any condition. Some claimants will
improve, some will deteriorate and some will remain unchanged, but that is not for any
assessing and reporting doctor to predict. I appreciate at page 19 of the report there is a
limited form of prognosis, but that is intended as no more than a pointer towards suitable
functional review periods and is not a pure medical prognosis as we all understand it
when used in the management of standard clinical conditions. So, the assessing doctor is
dealing with the functional restrictions which can be shown at that particular
consultation. Furthermore the examining doctor is dealing with the diagnosed conditions
outlined by the GP on Medical Certification - in other words the certified cause of
incapacity for work. It is always possible that the doctor could find an alternative or
additional diagnosis, but that is not the purpose of the report and there are specific
procedures in place to allow a doctor to take action when such an event occurs. But it did
not happen in this case- Dr Ludmila Semetillo accepted and worked along with the diagnosed
condition. I point this out as the standard procedure because it is something that Mr
B... has raised in his letters in which he suggests that the assessment is aimed
at challenging established diagnoses. This is far from the case - the intention is to build
up a picture of functional ability and show the practical effects of that condition, in order
to allow the Decision Maker to understand what the claimant can or cannot do.

In my view this has been well executed at this examination. We should thank both Mr
B... (who was fatigued and distressed by the travel arrangement and the delay
at the MEC) and Dr Ludmila Semetillo (who saw this case at the end of a day and when an HCP
had decided the the case was too complex to be handled by a nurse) because together they
both delivered enough detail to create a full report. In certain sections the report seems
generous- for example I believe that descriptor MCc at page 12 is poorly supported by
the evidence in the report. But I will not criticise that because Dr Ludmila Semetillo was with this
claimant and often the mental and cognitive functioning is best dealt with at face to face
discussion. I therefore honour the decision to apply descriptor MCc and the other
description which serve to outline the disability experienced by this claimant. I would
have liked to know more about the underlying cerebral tumour but it is possible that at
that point in time the full diagnosis had not been made. It is sufficient to understand that
the tumour causes convulsions which can only be partially controlled by high dosages of
Levetiracetam and that this in its turn causes fatigue along with other neurological
symptoms. Consequently Mr B... is an ill man who also has the continuing
distress which is attached to such a diagnosis.

Does the report cover all possibilities in this case? There is one area of concern. When
there is a diagnosed tumour we have to consider the extent and stage of the illness and if
there is the possibility of terminal illness. This is always an uncomfortable subject to
raise with any claimant, but it is pertinent because an individual who is terminally ill has
acceptance of "Limited Capability for Work Related Activity". Such an acceptance
means that the individual is not required to attend a Work Focussed interview at the
DWP. Does Mr B... consider himself Terminally Ill? Only he can answer that
direct question BUT there is a reference to this within his letter dated 26/9/2009 and
again in his email dated 18/8/2009. As we have a direct denial of this possibility in the

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ESA report at Page 17 headed "Limited Capability for Work Related Activity", I am
making the assumption that this question was asked at the interview and that the terminal
state was not a probability. Certainly Mr B... seems to have accepted the report
in its entirety so he has therefore not disputed Dr Ludmila Semetillo's instruction that the claimant
was not at that time terminally ill.

Mr B... is quite right when he says that those who are terminally ill are not
required to attend an examination. But in order for such protection to be put in place that
state of terminal illness needs to be raised before the appointments are offered or even
before the ESA 50 is completed. The usual procedure is for the claimant to be asked to
obtain form DS1500 which is completed either by the GP or Consultant involved with the
case. This will provide details to corroborate that death can be expected within the period
of the next 6 months. 0nce such information is available then action is taken to ensure
that an examination is not organised and that the claimant is protected from any other
procedures. I am uncertain from the letters on file or if Mr B... considers he
should not have been called for the examination or if after the examination the status of
"Limited Capability for Work Related Activity" should be applied to him.  But in either case
such protective administrative actions require the provision of a DS1500 and I gather
such a form was not made available at these early stages. I also consider - as Mr
B... did not object to the content of the ESA report- that he had no objections
to the entry at Page 17 and therefore did not at that stage consider himself terminally ill.
If he does do so now then I can only advise he asks his GP for form DS1500 and gives
that to the local branch of the DWP. Such action may have already taken place but I
cannot pass this point in the report without adding my advice on that subject.

It makes sound sense not to call the terminally ill forwards for examination but what
about those who are ill? Are some claimants simply too ill to attend and did Mr
B... fall into that category? Any HCP involved with the decision to summon
for examination will only have access to the ESA 50 questionnaire which was completed
by Mr B... on 12/6/2009. As Mr B... was examined shortly
afterwards on 24/7/2009, the decision to call for examination was made in the short
intervening period and was based on an up to date ESA 50. In it we are told of an
escalation of symptoms 10 days before 12/6/2009 with a necessary doubling of the 
medication and that the check MRI was being brought forward on an emergency basis.
Whilst that is worrying never the less there is little functional restriction outlined in the
form and that may be why this claimant was called for examination. Should he have been
called for examination?- this is difficult to answer, but if he made contact to say how
difficult it was for him to get about it is hard to see why some form of support was not
put in place for him. I am in favour of an assessment taking place in all but the more ill,
provided it is because such a consultation often serves to iron out the complexities of a case,
provided all efforts are made to limit stress/ pain etc. But if examinations are to take
place in those who are more disabled than others then these need to be arranged with
empathy. Was there not a nearer examination centre or even that chance of a domiciliary
visit if it was essential that the assessment took place? If the claimant is too ill to travel
then we should be asking if the examination is really necessary. It is always easy to
criticise a decision to call him to Highgate and perhaps more could have been done to

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avoid the distress he suffered on that day of extensive travel. He had after all described
his medication- related fatigue and the deterioration in his condition. My concerns about
extensive travel distances centre on illness and weakness which can limit stamina and
tolerance of travel. If the policy is to medically assess most claimants then I accept that
reasoning, but is there something in place to support those who are less mobile or who
have troubles likely to be exacabated by travel? I would hope there is, but if so then
those provisions do not seem to have moved into action for Mr B.... The
organisation of examinations is well outside my remit, and that is something for the other
part of the Independent Tier to consider. But medically I do have the right of a comment,
and in this instance Mr B... and his condition were not served well by this
process. It is thanks to Dr Ludmila Semetillo's efforts that we have a suitable report which allowed
for action by the Decision Maker. We also do not have any real explanation for the
further call for examination at the very same MEC on 24/8/2009 and that despite all the
problems Mr B... had already listed with that journey. In this instance the
claimant was more disturbed by the travel than the examination!

Finally - for all those questions and actions in which Mr B...: invited the
Independent Tier to partake- I hope I have made it clear that such involvement is not
appropriate and not in his best interests. Whilst I cannot agree with some of his opinions,
nevertheless as far as his examination arrangements and the content of his report is
concerned I do support him.

Recommendations

Dr Ludmila Semetillo should be thanked for this detailed report which was completed under
difficult conditions. There should be consideration given - and discussion with a senior
mentor offered - on the evidence needed to support descriptors We and MCc. Neither of
these are well supported in this report although I am sure there are reasons for this. I am
not disputing the acceptance of those descriptors, they may well be the best assessment
for this case- but in general a greater degree of evidential support would be expected. I
also note there are areas where the detail in the typical day account is conflicting. For
those reasons this report does not satisfy Atos Quality standards, although I accept the
intentions behind it and consider that under the circumstances this has offered the best
outcome for this particular case.

I consider that the scrutiny action for this file was probably correct. I am not sure what
current scrutiny guidelines recommend in such a case, but it seems quite logical to assess
this case at a consultation given the evidence within the ESA50. Someone had
responsibility for marking this case for examination by a doctor only. That was needed
and could have reduced his wait at the MEC.

I do not consider that the scrutineer could have anticipated such a long journey for that
examination, because session organisation is not a medical function. I also consider it

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reasonable for an HCP to assume that when such an examination is requested that the
arrangements made will be suitable for the case and will therefore avoid undue distress.

Finally if Mr B... considers that he should be considered for the provisions
offered to those who have "Limited Capability for Work Related Activity" for reasons of
Terminal Illness then I can only suggest that he asks his GP to supply a completed
DS1500 form. If Mr B... is not terminally ill then I can only offer my profound
apologies for the rather strong emphasis I have put on that subject in this report, but I
have done it because I identified mention of the subject in one of his letters and an email.

I join with others in voicing my regrets that Mr B... had such a difficult
journey to the Highgate MEC and I hope that a suitable apology has been offered by Atos
Healthcare.

The Wider Issues raised in this Complaint from Mr B...

I do not consider there is any value in responding to all of these but I will give my views
on two of them.

Mr B... has made several references to Dr Wright and his responsibilities and
has included a copy of the referral to GMC. He asks for Independent Tier to support that
GMC referral.
I think that this GMC referral is unfounded and I cannot support it for the following
reasons:

- All doctors understand that they, as individual Practitioners, are responsible for
  their own Professional conduct. If a doctor makes a Professional error they cannot
  blame it on some one else! Certainly not Dr Wright
- Secondly Dr Wright is responsible for setting and conveying the agreed
  Professional Standards that are required within that medical service for the DWP.
  He is there to ensure that those standards are given to all employed HCPs. Beyond
  that it is up to each individual doctor and nurse to understand and accept those
  standards and to ensure that their personal and Professional conduct meets those
  standards.
- As Mr B... is not complaining about Dr Ludmila Semetillo's standards I do not
  understand how Dr Wright has been culpable for anything.
- The wording in Atos Healthcare literature is worrying and I think we can all
  accept that there is no more confusing word than "customer". Whether we like
  the word or understand it differently is a question of semantics. I will leave that
  to those who have responsibilities for forms, but I cannot see that as sufficient
  grounds to involve the GMC.
- Finally, the referral is at the start entirely between Mr B... and the
  GMC. It is the GMC who will decide how to investigate and what action - if any-
  is required. The Independent Tier can have nothing to add to that process.

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Mr B... also makes reference to the BMA's intention to discuss issues around
the use of non-doctors in the assessment of patients for the DWP. I am surprised at that
statement. The BMA would be well aware of the use of nurses in various branches of
medical assessment and in delivery of treatment. The NHS abounds with Nurse led
clinics where highly trained nurses assist in the delivery of NHS care. The concept that a
nurse can only provide basic care went out of fashion many years ago. Nurses are now a
highly trained body of Professionals who have wider skills by far than in the past. The
option for an HCP assessment is written into the Legislation for Welfare Reforms and
that is a fact surely known to the BMA. Debate always has a value, but in this instance
the political initiative has progressed well beyond any early consultation phase. Again the
Independent Tier cannot become involved and in this case the issue does not seem
relevant because Mr B... was examined by a doctor of whom he has said
"I have no complaints about the receptionist or the doctor I saw. They worked well in
difficult circumstances"

His comment mirrors my own view of the medical aspects of this complaint, and it will
be for others to decide how efficiently this case has been administered.