This is the actual response:

DWP Central Freedom of Information Team

e-mail: xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx@xxx.xxx.xxx.xx

Our Ref: FoI 595/09

22 April 2009

Dear Mr Gardner

Freedom of Information Request – 595

I am writing in response to your request for information about Employment and Support Allowance (ESA) which you asked for on 2 April 2009.

You have asked for copies of the legislation which gives effect to the handling, acceptance and rejection of applications for ESA. I have attached copies of the Welfare Reform Act 2007, the Employment and Support Regulations, 2008, and the Social Security (Medical Evidence) Regulations, 1976 (as amended).

You have also requested details of how a medical examination and opinion of an individual’s health, performed by a Doctor (or other medically qualified person) working on behalf of the Department for Work and Pensions (or agents), takes precedence over the medical examination and opinion of an applicant’s own General Practitioner or Consultant.

The decision on whether or not someone has limited capability for work and is entitled to ESA is made by a decision maker on the basis of the available evidence. This evidence includes medical opinion, or advice resulting from a Work Capability Assessment (WCA) carried out by a healthcare professional employed by Atos Healthcare to carry out medical examinations for the DWP. It also includes information provided by the customer in a questionnaire before the WCA is carried out.

A decision maker may also consider evidence provided by an applicant’s General Practitioner or Consultant. Though the General Practitioner or Consultant may know their patient very well their primary role is to diagnose and treat a condition. This is not the same as advice provided by independent healthcare professionals designed to help decision makers decide whether or not someone has limited capability for work for benefit entitlement purposes.

The WCA has been designed as a positive assessment, focusing on what an individual is capable of as well as their limitations with regard to work. Healthcare professionals are trained in disability assessment which enables them to provide advice to decision makers.

For these reasons it is possible that a decision maker may give more weight to the evidence of the Healthcare Professional than to the evidence of the applicant’s GP or Consultant or to the evidence of the applicant. However each decision is made on the basis of the available evidence and it is also possible that a decision maker may give greater weight to the evidence of the GP, Consultant or customer.

If you are not satisfied with my handling of your request or reason for not giving you all the information you asked for please tell me why within two calendar months of the date of this letter. I will then arrange for someone to conduct an internal review of your request and my handling/decision. The review will be conducted by another officer, usually of a more senior grade to myself. This person will have taken no part in my original decision. You will be advised of their decision in writing.

If you are still not content with the outcome of the internal review you have the right to apply directly to the Information Commissioner to look into the way your request has been handled. Please note that generally the Commissioner cannot make a decision unless you have first exhausted DWP’s own complaints procedure. The Commissioner can be contacted at:

FoI Complaints Resolution
Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF
Fax: 01625 545 510

email:xxxx@xxx.xxx.xxx.xx

If you have any queries about this letter, please contact me. Please remember to quote the reference number above in any future communications.

Yours sincerely

DWP Central FoI Team

To whom it may concern.

I, David Cartwright confirm the following to be true:

I attended a medical examinination by Dr Madhuri Khurana at Albert bridge House, Manchester on 03 June 2009. My friend Mr. Howard Woolley came with me as a witness.

The examination was brief and consisted mainly of computer generated questions which were highly irrelevant to my medical condition. I was sat to the side of the Doctor and little eye contact was made between us.

I blew in to a cardboard tube which was supposed to demonstrate my lung capacity which is extremely poor as my left lung does not function very well after it collapsed. This was the only part of the examination that was physical.

I received a letter 11 July from Job Centre Plus explaining that i was no longer entitled to Employment Support Allowance and National Insurance credits. I felt overwhelmed with stress as I am struggling financially and I am fearful of returning to work in case I suffer a reoccurence of spontaneous Pneumathorax which first occured in February 2009.

I asked for a copy of the medical report and the following is my response to the itemised points within it:

1. My condition - spontaneous pneumathorax - is not named

4. I was not in hospital for three months. Breathlessness is not bearable. I do not attend a respiratory clinic. Did not attend out-patient clinic or receive any treatment from any such place. I find dealing with bills and letters to be stressful. It is difficult for me to go shopping and to do housework. I am not planning a trip to Southport soon.

8. when walking, standing, sitting, bending or kneeling I have a problem with the lung capacity required.

12. when reaching and lifting I have a problem with the lung capacity required.

28. I do have a problem in getting about.

33. Yes my condition is life threatening and there is medical evidence to support that it is uncontrollable. I am suffering from mental and physical disablement. I have limited capability for work.

34. death is likely due to my respiratory problem causing cardiac arrest. There is substantial physical and mental risk if I were found capable of work related activity.

35. I have contrary advice from my GP. that a return to work should be considered within one year and not within three months.

It is clear to me from the report that I was not listened to when I described the difficulties I have experienced with my health condition.